Factual Background

This litigation began following a 2015 incident at a local outpatient facility. A 76-year-old patient underwent a common gastrointestinal procedure. Following the four-minute procedure, the medical providers moved the patient to a recovery area for monitoring. The plaintiff had a medical history that included morbid obesity, hypertension, and diabetes. Despite this history, the treating physician approved the patient for discharge approximately 30 minutes later.

Tragedy struck almost immediately after the patient left the building. While walking to his car in the parking lot, the patient fell, suffering severe injuries to his thoracic spine. He passed away two weeks later from complications related to these fractures. The surviving family members subsequently filed a medical malpractice and wrongful death lawsuit.

The legal action targeted several parties. They were the board-certified gastroenterologist, his medical practice, the ambulatory surgery center, a nurse anesthetist, and a licensed practical nurse. Before the trial could begin, the circuit court granted summary judgment in favor of the doctor. The trial court ruled that the plaintiffs’ experts expert witnesses were not legally qualified to testify against him. The effect of this summary judgment on the claims against the co-defendants is the subject of this Blog post. As a result, the case proceeded to an eight-day jury trial. The only the remaining nurse anesthetist and the monitoring nurse were defendants. Ultimately, the jury found that these two providers had not breached their respective standards of care.

Parties’ Arguments

Following the defense verdict at trial, the plaintiffs filed an appeal. One of their primary contentions related to the effect of the summary judgment on the remaining defendants. They noted the trial court’s initial error of wrongly dismissing the doctor from the case. They claimed this required the reversal of the jury’s verdict in favor of the other two defendants. The plaintiffs argued that the absence of the “lead” physician created a significant void in the trial. They suggested that without the doctor at the defense table, the remaining providers were able to “bootstrap” their defense onto the court’s earlier ruling.

The plaintiffs maintained that the jury was essentially left with an incomplete picture of the healthcare team. They argued that the jury’s decision regarding the nurses was inextricably linked to the doctor’s actions, and therefore, the entire matter should be remanded for a new trial involving all original defendants to ensure a fair adjudication of the “full narrative” of the patient’s care.

In contrast, the defense argued that there was no improper effect from the summary judgment on the claims against them. They advocated for the finality of the jury’s decision. They asserted that any error regarding the doctor was “harmless” in relation to the claims against the other providers. The defense contended that the standards of care for a nurse anesthetist and a recovery room nurse are legally distinct from those of a physician. Therefore, they argued that the jury’s finding—that these specific individuals did not act negligently—should stand on its own, regardless of whether the doctor’s dismissal was technically incorrect.

Court’s Ruling on Effect of Summary Judgment on Co-Defendants

The Appellate Court of Maryland provided a ruling that balanced the correction of legal errors with the preservation of jury findings. While the Court agreed with the plaintiffs that the doctor should not have been dismissed, it affirmed the jury’s verdict in favor of the nurse anesthetist and the monitoring nurse.

The Court’s decision was rooted in the principle of “non-prejudicial error”. To overturn a jury verdict, an appellant must prove not only that an error occurred, but that the error “probably affected the verdict”. The Court found that the plaintiffs failed to meet this high burden. There was no improper effect from the summary judgment on the claims against the co-defendants. The judges reasoned that:

• Distinct Roles: The jury was tasked with deciding if the individual nurses breached their own standards of care. Whether the doctor was also negligent was a separate question that did not necessarily dictate the nurses’ liability.
• Separation of Duties: The evidence at trial focused specifically on the monitoring and sedation responsibilities of the nurses. The Court found no “substantial likelihood” that evidence of the doctor’s potential negligence would have altered the jury’s assessment of the nurses’ specific conduct.
• Finality of Litigation: The Court emphasized that it is possible to reverse one part of a judgment (the doctor’s dismissal) while affirming another (the jury’s verdict for the nurses) if the issues are severable.

Ultimately, the Court remanded the case for a new trial against the doctor and the surgery center, while letting the defense verdict stand for the two nurses.

Commentary by Medical Malpractice Lawyer Mark Kopec on Effect of Summary Judgment on Co-Defendants

The plaintiffs were correct that dismissal of the doctor made their case more challenging, but it was not a legally recognizable harm. Anytime a plaintiff chooses to sue non-doctors, they often run into the defense that the doctor was the ultimate authority, not the non-doctors. Unless the non-doctor failed to covey important information to the doctor, these claims are often challenging. With the doctor gone, the non-doctor defendants could blame the doctor’s “empty chair.” This same situation can happen when a plaintiff settles with the doctor and pursues the non-doctors.

However, this is not legal unfair prejudice. I believe the Appellate Court’s decision on this issue was appropriate and legally sound. In the world of medical malpractice litigation, we often deal with “teams” of providers. While it is true that these providers work together, Maryland law treats them as individuals with distinct professional obligations.

The Court’s refusal to automatically overturn the verdict for the other defendants prevents what could have been a “total litigation reset” that ignores the work of the jury. The plaintiffs had eight days to present their specific evidence against the nurses. A jury of peers heard that evidence and concluded that those two individuals met their professional standards. Overturning that finding simply because a different party (the doctor) was wrongly excluded would be unfair to the defendants who participated in the trial and won on the merits.

Furthermore, this decision reinforces the “harmless error” doctrine. It reinforces that a legal mistake at the summary judgment phase does not poison the entire well of a subsequent trial unless a plaintiff can prove actual prejudice. By allowing the claims against the doctor to proceed in a new trial, the Court corrected the injustice done to the family, while simultaneously respecting the integrity of the jury’s findings regarding the other staff. This balance ensures that victims of malpractice have their day in court against the correct parties, without undermining the legal finality of our justice system.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The case involved personal injury and other claims relating to the repossession of the plaintiff’s riding lawn mower. The plaintiff brought suit in the Circuit Court for Prince George’s County against two individual and two corporate defendants. The complaint asserted seven counts: negligence (Count 1); assault and battery (Count 2); false arrest (Count 3); false imprisonment (Count 4); intentional infliction of emotional distress (Count 5); unfair debt collection activity, under the Maryland Debt Collection Act, Commercial Law § 14-202 (Count 6); and unfair or deceptive trade practices, under the Maryland Consumer Protection Act, CL § 13-303 (Count 7).  (Op. at 1).

The defendants moved for summary judgment. The court granted the motions as to counts 6 and 7. However, the docket showed partial summary judgment for only three of the defendants. (Id.).

The circuit court held a bench trial and granted a directed verdict on counts 3 and 5. The circuit court ruled in favor of the plaintiff against all defendants on counts 1, 2, and 4. The court then entered a $135,000 judgment. All parties appealed. (Id. at 2).

Appellate Court of Maryland

The Appellate Court noted that it has jurisdiction over an appeal only when it is from a final judgment or the law otherwise permits it. (Id. at 3).

Maryland Rule 2-602(a) states that a judgment that does not dispose of all claims by and against all parties is not a final judgment. Specifically, it provides: 

(a) Generally. Except as provided in section (b) of this Rule, an order or other form of decision, however designated, that adjudicates fewer than all of the claims in an action (whether raised by original claim, counterclaim, crossclaim, or third-party claim), or that adjudicates less than an entire claim, or that adjudicates the rights and liabilities of fewer than all the parties to the action: (1) is not a final judgment; 

(2) does not terminate the action as to any of the claims or any of the parties; and 

(3) is subject to revision at any time before the entry of a judgment that adjudicates all of the claims by and against all of the parties. (Id. at 4).

The Appellate Court observed that, because the absence of a final judgment may deprive a court of appellate jurisdiction, the Appellate Court can raise the issue of finality on its own. (Id.).

Maryland Rule 8-602(b)(1) provides that the appellate court shall dismiss an appeal if the appeal is not allowed by the rules or other law. There are only three exceptions to the final judgment requirement. Firstly, appeals from interlocutory orders allowed explicitly by statute. Secondly, immediate appeals permitted under Maryland Rule 2-602(b). Thirdly, appeals from interlocutory rulings permitted under the common law collateral order doctrine. (Id. at 5).

No Final Judgment

Here, there is no separate document or docket entry that reflects summary judgment on counts 6 and 7 as to one of the defendants. Additionally, the order of judgment and the docket entries do not reflect a judgment in favor of the defendants on counts 3 and 5. They also do not reflect the entry of judgment with respect to the individual defendants on counts 1, 2, and 4. As a result, there was no final judgment, and no exception applied. (Id. at 5-6).

The Appellate Court dismissed the appeal without prejudice and remanded the case for entry of final judgment. (Id. at 6).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on No Final Judgment

The final judgment rule trips up litigants in appellate cases regularly. It is the circuit court’s responsibility to enter a final judgment on all claims against all of the parties in a case. Separate documents, or the docket, must reflect the final judgment.

Even though it is the circuit court’s responsibility, the parties end up paying for failure to enter a final judgment. They pay in wasted time and attorneys’ fees. They have to return to the circuit court to have the judgment adequately documented. Then the appeal can proceed. This is a situation that can significantly delay the legal process and increase costs.

Given the potential delays and increased costs, any party pursuing an appeal should ensure the circuit court has correctly entered final judgment before seeking the appeal.

You can read other Blog posts on Final Judgment: Moore v. CVS and more generally issues in Appeals.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The plaintiff commenced the case representing herself. She obtained her first lawyer, and that representation ended. She retained her second lawyer and terminated him two months before trial, citing grievances concerning his representation. The plaintiff also failed to appear at the pretrial conference. (Op. at 1-2).

Six weeks before trial, the third lawyer entered his appearance and promptly filed a motion to postpone the trial date and get additional time for discovery. The Circuit Court for Baltimore City denied the motion. (Id. at 2).

At the pretrial conference, the lawyer renewed his motion for postponement and sought withdrawal. However, the court denied both motions. (Id. at 3).

Court of Special Appeals on Lawyer Withdrawal

On appeal, the lawyer argued that the denial of the motion for withdrawal was appealable under the collateral order doctrine. The Court of Special Appeals (CSA) responded by noting the four requirements for the collateral order doctrine to apply.

(1) it must conclusively determine the disputed question; (2) it must resolve an important issue; (3) it must be completely separate from the merits of the action; and (4) it must be effectively unreviewable on appeal from a final judgment. (Id.).

The CSA found that only elements 1 and 3 were present. It was not an important issue because there was no evidence of harm from the ruling. The CSA also stated that the order was not effectively unreviewable on appeal because the client would still have the benefit of a remedy before entry of a final judgment. (Id. at 4).

The lawyer argued that his participation in the case was contingent on a postponement and the client obtaining lead counsel that the lawyer would assist. (Id. at 5). The CSA noted that the primary basis for attorney withdrawal was Professional Conduct Rule 1.16(b)(5), where the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and the lawyer has given reasonable warning that the lawyer will withdraw unless the client fulfills the obligation. (Id. at 6). This situation was not present here. (Id. at 7).

Common factors include that the attorney would suffer immense financial hardship or exposure to sanctions for ethical violations, or a significant conflict of interest existed between the attorney and the client. (Id. at 7).

Application of Factors

Those were not present here. The circumstances that the lawyer complained about were ones he was aware of when he entered his appearance. The issue here was not important because there was no potential for significant harm to the lawyer.  (Id. at 8).

The order was also not effectively unreviewable on appeal. If the defendant won the trial, the appeal could raise the order. Therefore, there would be no harm to the lawyer. (Id. at 9).

As a result, the CSA dismissed the appeal. (Id. at 9-10).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Lawyer Withdrawal

The CSA noted that a new rule in effect after this case would allow the attorney to file a notice of limited appearance with the circuit court pursuant to an agreement with the client. Maryland Rule 2-131(b). That now allows a lawyer to enter a limited appearance for the purpose of seeking a trial postponement and additional discovery. If successful, the lawyer can then enter a whole appearance to pursue the litigation.

Without the benefit of this rule, the lawyer was taking a risk in entering his appearance. However, in concluding there was no financial hardship, the CSA did not appreciate the economic realities of contingency fee representation.

The CSA contrasted this situation with one where the client stopped paying the lawyer. However, the contingency lawyer can suffer financial hardship differently. The contingency fee lawyer postpones the fee and incurs substantial expenses in pursuing the case, being paid and reimbursed upon successful completion. When there is insufficient discovery and inadequate trial preparation, both of those factors can result in a loss that has a substantial negative financial impact on the lawyer. The lawyer who is getting paid along the way does not incur harm, but the contingency lawyer does.

In this light, the order is not effectively reviewable on appeal. The appeal is after the lawyer has spent legal time and has to swallow substantial case expenses.

However, the lawyer was fully aware of these risks when he chose to enter his appearance. This clear understanding of the potential consequences contributed to a lack of sympathy from the appellate court when the lawyer sought withdrawal, serving as a cautionary tale for legal professionals. 

Red Flags

One of the most critical aspects of this case was the red flags that the lawyer chose to ignore. Despite the plaintiff’s history with two previous lawyers, the lawyer chose to proceed, a decision that should serve as a warning to other legal professionals. Wise lawyers will avoid such situations unless there is an extraordinary explanation unrelated to the merits or the relationship trouble between lawyer and client. This case did not have that. 

The defense won the case on summary judgment after establishing that there was no record of the doctor having done what the plaintiff alleged. The plaintiff appealed and lost.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

In part 2, I will discuss the issue of whether the wrongful death claim had to be arbitrated.

Factual Background

The decedent became a resident of a skilled nursing facility. At admission, she signed a written agreement to resolve a broad range of potential controversies by binding arbitration under the Maryland Uniform Arbitration Act (MUAA). (Op. at 1-2). The scope of the agreement included wrongful death claims. It also stated that it bound persons who could make wrongful death claims. (Id. at 2).

The decedent received medical care in the facility and ultimately died. The decedent’s daughter brought a lawsuit for wrongful death in the Circuit Court for Baltimore County. (Id. at 3).

Later the same month, the facility filed a separate action with a petition for an order to arbitrate under CJP 3-207. The daughter opposed the petition because she had not signed an arbitration agreement. The court consolidated the cases but maintained separate files. (Id. at 4).

The trial judge issued an order denying the petition for arbitration and tried to make it so the defendant could immediately appeal. The Order stated that the cases were no longer consolidated and that the order was a final order and could be appealed pursuant to Rule 2-602(b). The facility appealed and filed a motion to stay the wrongful death case pending the appeal. The trial judge granted the motion to stay. (Id. at 5).

Court of Special Appeals on Appealing an Order for Arbitration

The Court of Special Appeals raised on its own initiative whether the facility has a right to appeal from a judgment in an independent case instead of a motion in the wrongful death case. (Id. at 1).

The CSA noted that a party can appeal only from a final judgment on the merits unless an exception exists. There are narrow exceptions under CJP 12-303, the collateral doctrine, or Rule 2-602(b). (Id. at 5).

The CSA observed that most parties do not file a separate lawsuit to compel arbitration but instead file a motion to compel arbitration in the existing action. The Court of Appeals has repeatedly held that an order denying a motion to compel arbitration in an existing case is not a final judgment and cannot be immediately appealed under any exception. (Id. at 8-11).

Here, the facility filed its petition to compel as a separate case. The trial court’s order fully adjudicated the only claim in that separate action and terminated the case. Accordingly, the CSA held that the facility had the right to appeal from the order denying arbitration as a final judgment in a separate action. (Id. at 11-12).

The CSA also stated that since there was a final judgment, the Rule 2-602 certification was not applicable. Rule 2-602 applies to cases with multiple claims or more than two parties. It applies to orders that do not dispose of an entire case. (Id. at 12).

When the trial court consolidates cases, and a judgment disposes of one case, that judgment is appealable even though there are unresolved claims in the other consolidated case. (Id. at 12).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec an Appealing an Order for Arbitration

This case has significant practical implications. A medical malpractice defendant seeking to compel a plaintiff to arbitrate has two paths, each with consequences.

The defendant can file a motion to compel arbitration in the plaintiff’s lawsuit. If the trial court denies the motion, the defendant cannot immediately appeal the order denying arbitration. The parties will proceed to trial, and then the defendant can appeal the arbitration ruling. Suppose the appellate court decides that the matter requires arbitration. In that case, it will vacate the jury verdict and remand the matter for arbitration. In this instance, the parties will spend much time and money on a trial that ultimately becomes unnecessary.

However, in the alternative, the defendant can file a petition to compel arbitration in a separate lawsuit. If the trial court denies the petition, the parties can immediately appeal the denial of the arbitration order and seek a stay in the other case. The parties can finalize the arbitration question before expending the time and resources on a trial.

Choice

In many instances, like the one in this case, the defendant will decide which of these two options to pursue. If the plaintiff believes the arbitration argument is weak, they may not care which option the defendant chooses. However, suppose the defendant has a significant argument for arbitration. In that case, hopefully, the parties will both believe that a separate action, with its immediate appealability, would be the most efficient way for the litigation to proceed.

You can also read other Blog posts on appeal and arbitration issues.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The plaintiff was exiting a pharmacy in Salisbury when the driver of a car, attempting to park her car in a spot in front of the store, crashed through the store’s front doors and hit the plaintiff. The plaintiff then sued the driver and three corporate defendants in the Circuit Court for Baltimore City, alleging that they owned and operated the Salisbury pharmacy store. The corporate defendants allegedly also failed to put protective devices in front of the store to prevent cars from crashing into the entrance doors. (Op. at 1-2). On the defense motion, the circuit court then transferred the case to the Circuit Court for Wicomico County. (Id. at 2).

The corporate defendants filed motions for summary judgment. (Id. at 4-5). The plaintiff dismissed the owner of the shopping center. The circuit court granted the motions of the other corporate defendants. (Id. at 5-6).

The plaintiff filed a motion for reconsideration, or in the alternative, that the court re-issue the order with language directing entry of final judgment as to those defendants under Rule 2-602(b). (Id. at 6). The circuit court denied the motion. The plaintiff appealed and then dismissed without prejudice the driver. The corporate defendant’s cross-claims against the driver remained. (Id. at 7).

Appellate Court of Maryland on the Final Judgment Rule

On appeal, both sides argued the merits of granting summary judgment. However, neither addressed the issue of whether the court has appellate jurisdiction. It’s important to note that the Appellate Court is entitled to raise such procedural issues on its own, ensuring that legal procedures are followed. In this case, the court did just that and concluded that appellate jurisdiction was improper.

The right of appeal to the Appellate Court requires a final judgment. CJP 12-301. An order adjudicating fewer than all the claims in an action is not a final judgment. Rule 2-602(a)(1).

The summary judgment order did not dispose of the plaintiff’s claim against the driver. Accordingly, it was not a final judgment. Nor did it dispose of the corporations’ cross-claims against the driver. Even though the corporations no longer needed the cross-claims because the court found the corporations not liable, the claims still existed and had to be dealt with. (Op. at 9-10). 

Exception

The Appellate Court noted limited exceptions to the final judgment rule. The only applicable one was Rule 2-602(b). It states that if the court expressly determines in a written order that there is no just reason for the delay, it may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties. This entry allows for an immediate appeal. Under Rule 8-602(g)(1)(C), the Appellate Court can also enter final judgment on its initiative in the same circumstances. (Id. at 11).

The trial court did not address the plaintiff’s request for Rule 2-602(b) certification beyond stating that it denied the motion for reconsideration. (Id. at 12). The Appellate Court cannot enter final judgment on its own if the circuit court was asked to certify final judgment and declined. (Id. at 18). The Appellate Court found that the record in this case was unclear as to whether the circuit court expressly refused to certify the final judgment or overlooked the opportunity to do so. (Id at 18-19).

The Appellate Court remanded the case for assessment of entry of final judgment. This means that the circuit court is to use the current facts, not the ones that existed at the time of the initial presentation of the issue. Accordingly, the remand allows the plaintiff to resolve the final judgment issue or prompt the court to resolve the cross-claims, moving the case forward.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on the Final Judgment Rule

This situation was challenging for the plaintiff. They were aware of the final judgment rule. They asked the trial court to certify final judgment as part of a motion for reconsideration. However, the trial court denied the motion for reconsideration without commenting on the request for final judgment. The plaintiff incorrectly concluded that dismissing the driver would resolve the final judgment issue. Both sides believe this, as they filed appellate briefs on the merits without mentioning the final judgment rule issue.

A very subtle legal issue further complicated this case. The Appellate Court could certify final judgment unless the circuit court declined to do so. The circuit court’s action was sufficiently vague for the appellate court to decline to certify the final judgment.

The plaintiff filed this case in September of 2022 in the Circuit Court for Baltimore City. In March of 2023, the Circuit Court for Baltimore City transferred the case to the Circuit Court for Wicomico County, where the incident occurred. In February 2024, the circuit court denied the plaintiff’s motion for reconsideration. Now, in February of 2025, the case is remanded. 

That’s about 2 ½ years of litigation and not much progress for the plaintiff. However, this is not the end. Hopefully, upon remand, the plaintiff can either successfully make a case for certification of final judgment or prompt the court to resolve the cross-claims, paving the way for a more favorable outcome.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background on Insurance Issue Preservation

The plaintiff filed the case in the Circuit Court for Anne Arundel County.

During the plaintiff’s counsel’s questioning of his client, the lawyer asked the plaintiff who requested her to see the defense orthopedist. The plaintiff responded that she believed it was the defendant’s insurance company. The defense counsel did not object. (Op. at 6).

Later, the plaintiff’s counsel posed a question referencing the “doctor that the defense insurance company sent you to.” This time, the defense counsel requested to approach the bench. The judge then instructed the jury to disregard the last question and allowed the plaintiff’s lawyer to restate the question (Id.).

The jury returned a verdict of $100,000 in favor of the plaintiff. The defense appealed. (Id.)

Appellate Court

The plaintiff argued that the improper mention of insurance was unduly prejudicial and led the jury to grant an unfair award of damages. (Id. at 8). The court stated:

It is well-established that, absent a contemporaneous objection, a lawyer does not preserve a contention about the admissibility of evidence for appellate review. Md. Rule 2-517 states, in pertinent part: 

Method of making objections: (a) Objections to evidence. — An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. (Id. at 9).

On the first occasion that the plaintiff mentioned insurance, the defense did not object. As a result, there was no preservation for appellate review of the insurance issue. The defense could not argue on appeal that the statement was prejudicial. (Id. at 10).

On the second occasion, the defense counsel objected, and the trial judge gave a curative instruction. The defense asked for no further relief. (Id.).

The court concluded that this second instance still needs to be preserved for review. The reason is that the plaintiff introduced the same evidence without objections at another point in the trial. The Appellate Court affirmed the judgment. (Id. at 11).

Commentary by the Baltimore Medical Malpractice Lawyer on Insurance Issue Preservation

Lessons Learned from White v. James: The Importance of Timely Objections

The rules governing the preservation of issues for appeal are simple. However, the challenge for the medical malpractice lawyer is that these rules often require immediate action, with little to no room for error. There is no time to analyze the question, discuss it with the co-counsel, or do research. If missed, the result can be a catastrophic failure to preserve the issue for appeal, potentially leading to an unjust outcome for your client.

Here, the defense was doomed to no preservation by not objecting to the insurance injection in the first place. Once that occurred, the defense did not preserve the issue for appeal, and it did not matter the defense’s response when it came up again.

Strategies for Success: Equipping the Medical Malpractice Lawyer to Minimize Errors

There are certain things that the medical malpractice lawyer can do to minimize the chance of missing an objection to a question. First, it can be very valuable to have a co-counsel focused on the issue while you are doing the witness examination. They can prompt you to object when you don’t see the need. In addition, you can make a motion in limine before trial for any issue you anticipate. You could make a motion to strike if you do not get your objection in before the witness answers. You can also request a curative instruction from the court or a mistrial.

With these tools, the prepared medical malpractice lawyer can minimize the chances of missing any opportunity to preserve appellate issues.

For more information on evidence of insurance and appellate preservation issues, read the Blog posts on Insurance Mistrial: Lewis v. Romero and Preserving Issues for Appeal: Asplundh v. Metzger.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

The appellant, a subcontractor, sustained injuries in a utility hole accident. Afterward, the appellant filed a negligence complaint in the Circuit Court for Montgomery County. However, he failed to identify any expert witness in his discovery responses. Afterward, the defense filed a motion in limine to exclude any expert witnesses, which the court granted. Subsequently, the defense filed a motion to dismiss, arguing that the appellant could not succeed without an expert. The circuit court granted this motion, leading to the appellant’s appeal, and the issue of scope of appeal.

Scope of Appeal Timing

The timing for scope of appeal is as follows. The circuit court entered the dismissal on September 29. On October 26, the appellant filed a motion for reconsideration, arguing that he did not need an expert witness, which the court denied on February 8. On March 7, the appellant then filed a notice of appeal. (Id. at 1-2).

Significantly, the Appellate Court first generally discussed the scope of appeal:

“Following entry of judgment in a trial court, a litigant seeking to revise or modify the order may file one of two post-trial motions: (1) a motion to alter or amend the judgment under Maryland Rule 2-534.; or (2) a motion for the court to exercise its revisory power pursuant to Maryland Rule 2-535. If a motion, however labeled, is filed more than ten days but less than thirty days after the entry of judgment, it will be treated as a motion under Maryland Rule 2-535. Pickett v. Noba, Inc., 114 Md. App. 552, 557 (1997).”

Timing

Then the Appellate Court specifically discussed the timing related to scope of appeal:

“Where the circuit court denies a motion to revise under Rule 2-535 and the party appeals that denial more than thirty days after the entry of the underlying judgment, as occurred here, the propriety of the underlying judgment is not before this Court. Id. at 558-59. Rather, the only question before this Court is whether the denial of the motion to have that judgment revised was an abuse of discretion. See Stuples v. Baltimore City Police Dep’t, 119 Md. App. 221, 240 (1998). An abuse of discretion is defined as “discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” In re Don Mc. 344 Md. 194, 201 (1996).”

The Appellate Court observed that the appellant did not argue that the circuit court had abused its discretion and upheld the circuit court’s refusal to exercise its revisory powers. (Op. at 3).

Commentary by the Baltimore Medical Malpractice Lawyer

The Appellate Court’s scope of review was limited to abuse of discretion because the appellant only appealed from the denial of the motion to revise the judgment, and not the underlying judgment. This crucial detail, however, which may have been unintentional, underscores the importance of timing in the filing of post-trial motions and notices of appeal.

Therefore, it is imperative to navigate post-trial motion practice and the filing of a notice of appeal with utmost care to ensure the intended scope of appeal. The appellate rules, a complex but necessary guide, are in Title 8 of the Maryland Rules. You can also find a comprehensive discussion of these rules on the appeal page of the litigation process section of this website.

Additional Case on Scope of Appeal:

Derr v. Jakoby (2023): The plaintiff in a car accident case filed a motion for a new trial within ten days of the judgment. After the court denied it, he filed a motion to alter or amend the judgment, which also was denied. The plaintiff filed a notice of appeal more than 30 days after the denial of the motion for a new trial (but within 30 days of the denial of the motion to alter or amend judgment).

As a result, the underlying judgment was not within the scope of the appeal. Further, the Appellate Court applied the deferential abuse of discretion standard and upheld the trial court.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

After an 8-day trial, the jury found that the defendant’s employees were liable and awarded damages exceeding $2.1 million. The defendant then appealed. (Op. at 1, 4). 

Issues not Preserved for Appeal

The defendant argued on appeal that the circuit court improperly allowed the plaintiff’s accident reconstruction expert to testify to matters he had not previously disclosed. Asplundh also argued that the plaintiff had failed to timely provide an updated damages report that its expert relied on. (Id. at 5).

The plaintiff argued that the defense had not preserved the issues for appeal. Maryland Rule 8-131 requires states that the appeals court will not review any issue not raised in the trial court. To raise the issue relating to the admission of evidence, the party must object when the evidence is offered or as soon as grounds become apparent. Maryland Rule 2-517(a).

The defense had filed motions in limine to exclude the damages report and the testimony of the accident reconstructionist. The circuit court denied the motions. However, the defense did not object when the plaintiff introduced the evidence. As a result, the Appellate Court held that the defense had failed to preserve the issues for review. (Id. at 7-8, 10). The defense’s motion to strike the evidence was not sufficient to preserve the issues for appeal because it should have been apparent to the defense at the time of the questions that objections were required. (Id. at 12).

Issues Preserved for Appeal: Jury Instructions

The defense claimed that the trial court erred in instructing the jury on vicarious liability for its employees and caused prejudice and confusion because the verdict sheet did not list the employer. (Id. at 13). The Appellate Court rejected that argument. It noted that the parties had mentioned the corporate defendant throughout the trial. Still, it would not be on the verdict sheet. As a result, instructing the jury on vicarious liability clarified the roles and relations between the parties. (Id. at 18).

Cross-Examination of Plaintiff’s Accident Reconstructionist

In another issue that was preserved for appeal, the defense argued that the trial court erred in limiting its cross-examination of the plaintiff’s accident reconstructionist on points from his previous report. The plaintiff did not discuss that report on direct examination. (Id. at 18-19). The Appellate Court ruled that the circuit court was within its discretion to limit the cross-examination to the direct examination topics. Also, the fact that the expert made changes in his report to reflect additional received information is standard and did not go to the expert’s credibility. (Id. at 20).

Reference to Dismissal of Other Lawsuit

The defense also contended that the trial court erred in granting the plaintiff’s motion in limine to exclude reference to another lawsuit. In that lawsuit, the plaintiff had claimed that different defense employees had caused the accident. The plaintiff dismissed that suit. The defense argued that it constituted admissible prior inconsistent statements. (Id. at 21).

The trial court noted that the plaintiff’s counsel had filed the other suit after the defense had disclosed the existence of another vehicle close to the statute of limitations. The plaintiff’s counsel dismissed the case without any discovery occurring. There was no evidence that the plaintiff believed the allegations to be true. Under these circumstances, the Appellate Court found that the trial court did not abuse its discretion in excluding the evidence. (Id. at 25).

Commentary By the Baltimore Medical Malpractice Lawyer

Preserving Issues for Appeal

Failing to preserve an issue for appellate review regularly comes up in appeals. At the trial, the rules often require counsel to object when the other lawyer asks the question. This requirement can put the lawyer in a position of having to object immediately after the question and before the witness starts to answer. Failure to object in that instant can waive the issue for appeal.

As a result, a waiver can happen even when lawyers are attentive and prepared. There are some things the lawyer can do to minimize the instances of waiver. Firstly, the lawyer can plan by making notes about the specific subjects that may require objections and have them in front while listening to the direct examinations by the other lawyer.

Having Help

Secondly, there is great value in having another lawyer at the trial table with you. When a lawyer is not examining the witness, they should have the list of objectionable areas in front of them and be listening for objectionable questions, ready to prompt the other lawyer to object if needed to preserve the issue for appeal..

Having another lawyer at the trial table may not always be possible. In that instance, try to have a paralegal there to do the same thing.

In deciding whether to object, err on the side of objecting to esure the issue is preserved for appeal. An overruled objection is no big deal. 

None of the issues on appeal presented the court with a close call. Sometimes, the verdict amount – here, over $2 million- explains an appeal. The defense came up with what it could to try to overturn the verdict. The plaintiff gets 10% post-judgment interest for having to wait on payment. CJP 11-107.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.