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Hunt v. Mercy Medical Center5/29/1998
REPORTED
The issue presented in this case is whether emotional distress from being misdiagnosed with cancer is compensable within the physical injury rule. On the facts presented, we hasten to answer yes.
Charles Dell'uomo initiated a medical malpractice action before the Maryland Health Claims Arbitration Office after he was misdiagnosed as having prostate cancer and received several radiation treatments. He brought the action against four health care providers, including the present appellees, Victor A. Fazekas, M.D., and Mercy Medical Center. Mr. Dell'uomo died of essentially unrelated causes prior to the hearing before the arbitration panel. In his place was substituted the personal representative of his estate, appellant Carol Sue Hunt. The arbitration panel found no liability and issued an award in favor of all health care providers on 31 July 1996. On 13 August 1996, appellant notified the Arbitration Office that she rejected the award. She filed a complaint and an action to nullify the award in the Circuit Court for Baltimore City. She requested a jury trial. The other two health care providers besides appellees were dismissed from the case by stipulation on 22 October 1996. Dr. Fazekas filed a motion for dismissal or, in the alternative, summary judgment. Mercy Medical Center filed a motion for summary judgment. These motions were the subject of a hearing on 18 July 1997. The circuit court granted Dr. Fazekas's motion on the day of the hearing and granted Mercy Medical Center's motion on 4 August 1997. This appeal timely followed.
The issues presented for review are:
I. Whether appellant was required to prove the decedent's emotional injuries through expert testimony.
II. Whether Dr. Fazekas was an agent of Mercy Medical Center for purposes of liability.
As explained below, we must reverse as to each issue.
FACTS
Upon the advice of urologist Stanley B. Silber, M.D., Mr. Dell'uomo submitted to a biopsy of his prostate at Mercy Medical Center in Baltimore on 9 March 1995. At that time, Mr. Dell'uomo was seventy- eight years of age. The specimen was submitted to the pathology department at Mercy. On the next day Dr. Fazekas recorded his diagnosis that Mr. Dell'uomo was suffering from a form of cancer. On 15 March 1995, Mr. Dell'uomo returned to Dr. Silber's offices at Mercy, where Dr. Silber informed him that he had a relatively minor form of prostate cancer and that radiation treatment would be necessary.
Dr. Silber referred Mr. Dell'uomo to the Department of Radiation Oncology at Mercy for further consultation, and decisions were made to proceed with radiation treatment. On the 10th, 11th, and 17th of April, Mr. Dell'uomo met with radiation oncologists at Mercy to sign consent forms and to discuss his condition, the treatment, and the potential effects of each. The form signed on the 17th contained his acknowledgment: That radiation therapy will have side effects which may occur during and immediately after treatment ("acute side effects") or later ("chronic" or "delayed" side effects), and which occur because radiation therapy affects normal tissue, and can damage normal tissues as well as cancerous tissues.
Among the acute side effects of the proposed treatment that have been described to me are: skin irritation; low blood counts; fatigue; urinary frequency; diarrhea; rectal irritation. Among the chronic side effects of the proposed treatment that have been described to me are: damage to bowel or bladder. I understand that no list of possible complications can be complete.
Mr. Dell'uomo was to be exposed to the radiation over approximately thirty-two se
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