Factual Background

The plaintiff filed a complaint for medical malpractice in the Circuit Court for Montgomery County. The claim was against an OB/GYN and her practice group. It specifically alleged the doctor negligently performed a laparoscopic hysterectomy and caused a ureter injury. The parties then filed a stipulation that the doctor was an employee of the group and acting within the scope of her employment. (Op. at 1).

At trial, the plaintiff told the court that they were dismissing the doctor with prejudice. The plaintiff’s lawyer also repeated the stipulation and added that the group was responsible for the doctor’s actions. Counsel then agreed that the court would instruct the jury that the doctor acted as the group’s agent. However, the court did not make any ruling. A docket entry, however, stated that the plaintiff made an oral motion, which the court granted.  (Id. at 2-3).

At the close of the plaintiff’s case, the defense moved for judgment, arguing that the dismissal of the doctor with prejudice released the group. The circuit court, however, denied the motion. On the plaintiff’s request, the court entered a new docket, making a revision the prior entry as a motion/stipulation that is a dismissal without prejudice.  This ruling, which was in favor of the plaintiff’s request, was a crucial step in the case.

The circuit court, asserting its power, amended the plaintiff’s motion to dismiss with prejudice to without prejudice. This action, which was within the court’s authority, was a significant move in the case. The court directed the clerk to make a new, separate docket entry, effectively altering the course of the case. Importantly, there was no written order of dismissal.

The jury found for the plaintiff and awarded $426,079 in damages. The group appealed. (Id. at 7-8).

Court of Special Appeals

In a case of first impression, the CSA first concluded that dismissal with prejudice against an agent does not necessarily make the vicarious liability claim against the employer nonviable. When the plaintiff gives no consideration, and the parties do not litigate the merits against the agent, vicarious liability remains. (Id. at 32).

The CSA then addressed the circuit court’s use of its revisory power. The defense argued that the plaintiff did not move to dismiss the claim. Still, instead, the parties presented a stipulation of dismissal. The defense added that the plaintiff did not file the required written motion under Rule 2-535(b). Even if the plaintiff had filed a written motion, the defense contended that the plaintiff was not entitled to revisory relief. (Id. at 35-36).

The CSA stated that since it already determined that the dismissal did not release the group, the court’s revision became irrelevant. In addition, Rule 2-535(b) was inapplicable because it governs the revision of a final judgment. Here, there was no final judgment. The circuit court revised an interlocutory oral ruling approving the dismissal. That action was proper under Rule 2-602(a)(3), demonstrating the court’s commitment to following the correct procedures. (Id. at 36-38).

The CSA then addressed the issue that there was no separate document for the dismissal as required by Rule 2-601(a). The CSA found that the parties waived the requirement. There was a docket entry for the dismissal, the separate document failure was inadvertent, and the parties did not object. (Id. at 38-39).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Revision of a Dismissal

As with the first issue, the CSA and the circuit court again applied well-established law to give place to the parties’ intentions. Unfortunately, in an attempt to avoid answering for its negligence, the defendant asserted an argument under an inapplicable rule.

Fortunately, the CSA applied the correct rule. In doing so, it placed substance over form to effectuate the parties’ intentions and uphold the jury’s finding of malpractice on the defendant’s part.

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 Confessed Judgment in Medical Malpractice

The plaintiff, demonstrating a proactive legal strategy, brought a lawsuit for medical malpractice, and the parties reached a settlement during a court settlement conference. The court then dismissed the case, and the parties entered a written settlement agreement. The agreement specifically required the defendants to make eight payments. After making six of the payments, the defendants then failed to make the final two, totaling $27,500. The plaintiff, in response, then filed an amended complaint for confessed judgment. (RR at 1-2, 5).

Provisions

The agreement provided that if the defendant failed to make installments within 15 days of their due date, the plaintiff could confess judgment against the defendants. The relevant provision specifically stated that the defendants:

will be deemed to be in ‘default’ of the outstanding payment installment, and

[Plaintiff] will immediately be entitled to a Confess Judgment with the court

against [Defendants]—the consent for which is hereby expressly provided by

[Defendants]—enumerating and declaring [Defendants’] acceptance and

assumption of responsibility to pay the unpaid balance of the total Settlement

Payment remaining as of the date default occurred, plus any late fees that have

accrued pursuant to the terms set forth above. [Plaintiff] expressly agrees that this

Settlement Agreement may be filed with any pleading necessary to enter or obtain

a Confess Judgment to prove his agreement and consent to said judgment.

(Id. at 4).

The agreement also provided for late fees:

If [Defendants] fail to effectuate payment of any installment of the Settlement

Payment within five (5) days of the due date specified for each installment . . .

[Defendants] hereby agree to pay an additional TWO HUNDRED DOLLAR

($200.00) ‘late payment fee’ to [Plaintiff] for each day thereafter that said payment

installment remains unsatisfied, beginning on the sixth (6th) day after the due date

specified for the outstanding payment installment, and continuing indefinitely until

said payment installment is effectuated and satisfied in full. The accrual and

payment of daily late payment fees under this Provision is understood by the parties

to operate separate and apart from any other payment obligations or requirements

imposed upon either party by any other Section or Provision of this Agreement.

(Id.).

US District Court for the District of Maryland

The court, in a decision that upheld the plaintiff’s rights, found that the plaintiff’s filing satisfied the local rule’s requirements for confessed judgment. The plaintiff attached the necessary documents and required affidavit that showed the plaintiff was entitled to a confessed judgment of $27,500 plus liquidated damages of $78,900. (Id. at 5-6).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Confessed Judgment

It is unusual for a medical malpractice case settlement to provide for several payments over time, like this case. This payment arrangement likely means the doctor and his practice group did not have insurance coverage for this case.

The plaintiff’s lawyer, demonstrating exceptional legal skill, did an excellent job of protecting the plaintiff in the event of nonpayment. The confessed judgment specifically allowed for a prompt judgment without bringing a separate court case. In addition, the liquidated damages clause was a key part of this case. That clause then provided about 75% of the recovery. The provisions that the plaintiff’s lawyer used in the settlement agreement for confessed judgment are above. 

Interestingly, the plaintiff almost had to bring a separate case in state court. The federal court’s diversity requirement, which mandates that the damages sought exceed $75,000 for the federal court to have jurisdiction, is a significant legal concept in this case. Fortunately, for the plaintiff, the liquidated damages clause took them over that total, so they did not have to bring a new case in state court.

Although periodic payments are unusual in medical malpractice cases, this case provides a good example of how to do it from the plaintiff’s lawyer’s perspective.

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 plaintiff brought a case in the Circuit Court for Howard County after she tripped and fell at a mall on a floor mat that was allegedly misplaced. She broke her femur. (Op. at 1). The plaintiff then sued the mall, management, janitor, and security. The mall, management, and janitor settled with the plaintiff. (Id. at 1-2).

The plaintiff then went to trial against the security company and obtained a $750,000 jury verdict. The plaintiff contended three joint tortfeasors, and security contended four. The circuit court found there were four and entered judgment accordingly. However, it declined to predate the judgment to the date of the verdict. (Id. at 4).

Entry of Judgment

The procedure for entry of judgment is in Rule 2-601. The Appellate Court stated: 

“Section (a) of which, captioned in part “Prompt Entry,” provides, in relevant part, that, upon a verdict of a jury allowing recovery of a specified amount of money, ‘the clerk shall forthwith prepare, sign, and enter the judgment unless the court orders otherwise.’”

The jury returned its verdict on May 27, 2022. However, the circuit court still had to decide the disputed issue of how many tortfeasors, which would determine how much money the court would enter in its judgment. The circuit court decided the entry of judgment issue on June 20, 2022. (Id. at 8).

A circuit court is entitled to enter a judgment nunc pro tunc to the verdict date to commence the post-judgment interest running. See Mona v. Mona Electric, 176 Md. App. 672, 730-31 (2007) and Aronson v. Fetridge, 181 Md. App. 650, 683-687 (2008).

The Appellate Court also stated:

“Apart from resolving a post-judgment motion filed by Allied, which was denied, the one-month delay in this case was for the legally required determination of an appropriate reduction in the verdict due to the existence of other joint tortfeasors, and we see no reason why appellant should be denied post-judgment interest because of that necessary delay. The only way to achieve that result – a fair and permissive result – is to date the judgment nunc pro tunc from the date of the verdict.” (Id. at 9).

Commentary By the Baltimore Medical Malpractice Lawyer

The Appellate Court’s rationale on entry of judgment is persuasive and helpful to medical malpractice plaintiffs. Maryland has a 10 percent post-judgment interest rate. CJP 11-107. Interest rates have been low for over two decades, and the 10% post-judgment interest rate has significantly benefited plaintiffs who must wait for payment pending post-trial motions or appeals.

It significantly adds up on appeals. An appeal to the Appellate Court of Maryland can take one and a half years to complete. For a $1,000,000 medical malpractice verdict, 10% for 18 months totals $150,000.

The Maryland medical malpractice lawyer should specifically use these authorities to ensure the circuit court enters judgment as of the verdict date. Suppose the circuit court has entered judgment on a later date. In that case, the lawyer can file a motion to alter or amend judgment within ten days of the entry of judgment. Rule 2-534. Alternatively, the lawyer also can file a motion for the circuit court to exercise its revisory power. Rule 2-535. 

When it is time for the defense to pay the judgment, the medical malpractice lawyer should convey to the defense the amount of post-judgment interest, including the per diem amount. The lawyer should also state that the defense must pay interest through the date the lawyer receives the check, or the lawyer will only provide an order of satisfaction once the defense does.

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.