Factual Background

The defendant sued under apparent agency was a managed care organization (MCO). The defendant contracted with medical providers to specifically serve persons enrolled in the state Medicaid program. However, the podiatrist at issue was not an employee or agent of the defendant. (Op. at 1).

The defendant did not employ its own medical providers. Instead, it contracts with them to participate in the defendant’s network. A member has a primary care provider who can then issue referrals to other providers in the network for specialty care. The defendant also operates four medical centers. (Id. at 5-6.)

At the time of the events of this case, the plaintiff had been a member of the defendant’s MCO for over 10 years. The defendant provided her materials, including a member handbook and a provider directory listing approximately 4,000 doctors, hospitals, and pharmacies. Many of the doctors’ addresses were at area hospitals. (Id. at 7).

Apparent Agency for MCO

The plaintiff sought to hold the defendant liable for the doctor’s negligence on the theory of apparent agency. The plaintiff asserted that the defendant created the appearance that the doctor was its employee and that the plaintiff then reasonably relied on that appearance. (Id. at 1).

The plaintiff saw her primary care physician at the defendant. She was having foot pain as a result of a bunion. She asked for a referral specifically to the podiatrist in this case. The plaintiff believed that the podiatrist worked for the defendant because she claimed she had seen him at the defendant’s medical center. She admitted that there were no signs regarding the podiatrist at that location. The plaintiff then saw the podiatrist at his private office. (Id. at 10-11).

The podiatrist performed surgery on the plaintiff’s foot at one of the area hospitals. Afterward, the plaintiff’s foot became gangrenous. She ended up having to have an amputation of a portion of her foot and a bypass on that leg. The bypass left a scar from her thigh to her ankle. (Id. at 11-12).

Medical Malpractice Case with Apparent Agency for MCO

The plaintiff filed a medical malpractice case in the Circuit Court for Baltimore City against the podiatrist and the hospital. The allegations included that she had a circulatory condition that placed her at material risk of injury from the operation. She amended her complaint to add the defendant and the primary care physician group, which was involved in her initial referral to the podiatrist. (Id. at 12-13).

The podiatrist failed to respond to the complaint, and the court entered a default judgment against him. The remaining defendants filed motions for summary judgment, which the court denied. (Id. at 13).

At trial, the trial judge granted the hospital’s motion for judgment. The jury awarded $3.64 million and found that the defendant was liable under the theory of apparent agency. However, the primary care physician group was not. The circuit court reduced the verdict to $714,000 under the statutory cap. The defendant appealed to the Court of Special Appeals, a Maryland intermediate appellate court. (Id. at 3-14). The Court of Special Appeals reversed the verdict on the grounds of insufficient evidence. The plaintiff appealed to the Court of Appeals. (Id. at 1).

Court of Appeals

Apparent agency is an equitable doctrine, whereby a principal is responsible for the acts of another because the principal, by its words or conduct, has represented that an agency relationship existed between the apparent principal and its apparent agent. Maryland has applied the theory of apparent agency to uphold a judgment against a hospital for the negligence of an independent-contractor physician with whom it contracted to staff the hospital’s emergency room.  (Id. at 16).

The doctrine of apparent agency has three elements: 

Did the apparent principal create, or acquiesce in, the appearance that an agency relationship existed? 

Did the plaintiff believe that an agency relationship existed and rely on that belief in seeking the services of the apparent agent? 

Were the plaintiff’s belief and reliance reasonable? (Id. at 18).

Analysis

The Court of Appeals found sufficient evidence that the plaintiff had a subjective belief that an employment relationship existed for MCO apparent agency. This belief is crucial in the doctrine of apparent agency, as it forms the basis of the plaintiff’s claim. She thought that the defendant employed the doctors who accepted her MCO card, and she claimed she saw the podiatrist at one of the defendant’s clinics. (Id. at 21).

The defendant’s representations concerning its relationship with the podiatrist involved the provider directory, which listed 4,000 doctors, hospitals, and pharmacies. They did not identify any of them as agents of the defendant. In addition, the members’ handbook did not specify an agency relationship between the defendant and its network providers. (Id. at 21-22)

Lastly, the CA concluded that the jury could not find the plaintiff’s belief that the podiatrist worked for the defendant reasonable. It was not possible to reasonably conclude that 4000 providers, nearly every Maryland Hospital, and also many well-known pharmacies all had employment relationships with the defendant. In addition, there was no evidence that the plaintiff relied on the defendant’s documents in concluding employment. (Id. at 22-23).

The CA also concluded that the plaintiff’s one-time seeing of the podiatrist at one of the defendant’s medical centers, which the defendant disputed, provided no basis for concluding that he was an employee. (Id. at 23).

Accordingly, the CA concluded that there was insufficient evidence to create a question for the jury on the issue of MCO apparent agency. The CA said that had the podiatrist maintained his office and treated the plaintiff at one of the defendant’s medical centers, then the legal conclusion might have been different. (Id. at 24).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec

In this case, the plaintiff contended that she saw the podiatrist at the defendant’s medical clinic, but the defendant disputed that fact. It was undisputed that in seeking care in this case, she had multiple visits to the podiatrist’s private office at another location. In addition, her surgery was at a hospital.

The plaintiff may very well have believed that the podiatrist was an employee of the defendant, but that was not based on any representation by the defendant. The defendant’s provider list specifically included 4,000 entries. These included doctors with addresses at area hospitals, most area hospitals, and also many well-known chain pharmacies. That list was not going to serve as a reasonable basis for believing that the defendant employed all of the entries under MCO apparent agency.

Apparent agency is an important theory for plaintiffs when defendants create environments that suggest an agency relationship. However, the facts of this case were not going to succeed with that theory.

You can read another Blog post on Apparent Agency Orthopedic Surgeon: Williams v. Dimensions, and more general issues in Parties.

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 working as a nurse’s aide at a nursing home and fell on a wet floor. EMTs took her to the Emergency Room with complaints of hip, knee, and lower back pain. The ER records referenced hip and knee pain. X-rays of both were normal. The ER discharged with a diagnosis of hip and knee contusions. (Op. at 3).

As her condition worsened, the plaintiff went to an orthopedist, and a CT scan revealed a burst fracture of the L3 vertebrae. (Id. at 4). She had spinal fusion surgery. In rehabilitation, she was treated for an infection and had a ventricular fibrillation. It left her in a vegetative state before she passed over seven years later. (Id. at 4-5).

While she was in a vegetative state, the plaintiff’s guardian brought a lawsuit for medical malpractice in the Circuit Court for Baltimore City, which the parties later agreed to transfer to the Circuit Court for Queen Anne’s County. The jury found for the defense. The plaintiff filed a motion for judgment notwithstanding the verdict, which the circuit court denied. During the appeal period, the plaintiff died. The guardian then filed the notice of appeal. (Id. at 5).

Court of Special Appeals on Agency After Death

The defense filed a motion to dismiss the appeal after learning that the plaintiff had died before the guardian filed it. The defense contended that the guardian lacked the authority to file the appeal. Further, the plaintiff’s personal representative of the estate still had not been substituted as the proper party as of the filing of the motion to dismiss. The defense added that the plaintiff’s lawyer lacked legal authority under agency law to pursue the appeal. (Id. at 5-6).

Afterward, the plaintiff received a Letter of Administration for the deceased’s estate and filed a notice of substitution in the CSA. Plaintiff also filed an opposition to the motion to dismiss. (Id. at 6-7).

After oral argument, the plaintiff filed a motion requesting a retroactive extension of time to file the substitution. The defense opposed it. It cited Maryland Rule 1-203(d), which provides representatives of a deceased party with at least 60 days to substitute the proper party, a time period that the court can extend only on a showing of good cause and a lack of prejudice to the rights of any other party. The defense argued there was no good cause for the delay. (Id. at 7-8).

The CSA observed that a guardianship terminates upon the death of the disabled person. ET § 13-221(b)(2). (Id. at 10). In addition, an agent’s authority terminates upon the principal’s death. Accordingly, an attorney does not have the authority to file an appeal for a client who has died. (Id. at 11).

Case of First Impression

This case, however, presented a unique legal issue-the authority of an agent after the principal’s death, but before the agent learns of it. The plaintiff argued that the guardian had authorized the attorney to file the notice of appeal before the deceased’s death. The attorney indeed filed the appeal 16 hours after the death, but before learning of the death. This issue was a question of first impression in Maryland, adding intrigue to the case. (Id. at 11-12).

Section 3.07(2) of the Restatement (Third) of Agency stated that termination of agency is effective only when the agent has notice of the principal’s death. The CSA chose to adopt this rule to avoid harsh consequences. Accordingly, the attorneys correctly noted the appeal. (Id. at 12). 

In addition, Rule 2-241 does not impose a time requirement for filing a notice of substitution upon the death of a party. Consequently, the notice of substitution in this case was valid to allow the personal representative to pursue the appeal. The CSA denied the motion to dismiss. (Id. at 14-15).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Agency After Death

The key factor in this case was that the attorney had not yet heard about the death of the client at the time that the attorney filed the notice of appeal. That is a rare factual situation.

More broadly, lawyers must be prepared to address the death of a client during litigation with the utmost promptness. If the death occurs before a scheduled deadline, there may be very little time to act. In such a situation, the lawyer may have to work swiftly with the family to promptly identify a personal representative and then open an estate so that the court can appoint that person. 

Fortunately, in Maryland, each county has an Orphans’ Court where someone may open an estate. It is often a relatively easy and quick process. You should be able to obtain the Letter of Administration promptly and then file the appropriate notice of substitution to make the personal representative the official party in the lawsuit.

In Part 2 of this post, I will address the CSA’s ruling on the defendant doctor’s testimony as to habit.

You can read other Blog posts on the status of Parties.

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 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 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. Also, she was acting within the scope of her employment. (Op. at 1).

At trial, the plaintiff told the court that they were giving a dismissal of the doctor agent with prejudice. The plaintiff’s lawyer also repeated the stipulation and added that the group was responsible for the doctor’s actions. Counsel agreed that the court would instruct the jury that the doctor acted as the group’s agent. 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. (Id. at 4). The circuit court denied the motion. On the plaintiff’s request, the court made a new docket entry, amending the prior entry that the motion/stipulation is a dismissal without prejudice.  (Id. at 5).

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

Court of Special Appeals

The Court of Special Appeals conducted a thorough review of the argument de novo, ensuring that the circuit court’s decision was not made in error. The plaintiff did not receive any compensation for the dismissal, raising the question of whether the voluntary dismissal with prejudice operated as an adjudication on the merits against the doctor. This was a question that Maryland had not addressed before, and the CSA’s review was comprehensive and meticulous.

The CSA’s decision was informed by a comprehensive review of many cases nationwide that have arrived at different results. The CSA concluded that the better view is 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 have not litigated the merits against the agent, vicarious liability remains. In the instance here, the dismissal with prejudice was merely a procedural mechanism to remove the agent as a defendant when it was unnecessary to sue the agent anyway.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Dismissal of Agent

This case is another unfortunate example of a defense counsel trying to avoid a just result based on a technicality that had no basis in law. The interesting question is when the defense counsel decided they would try to evade liability by arguing for a release. Was it when the plaintiff’s lawyer first announced that the dismissal would be with prejudice? At that time, defense counsel agreed that the court would ultimately instruct the jury that the doctor was acting as an agent of the group. If the defense counsel knew then that they would argue release, their statement concerning the jury instruction was of questionable candor toward the court.

Why would the defense counsel not immediately say they would argue release at the end of the plaintiff’s case? Because the plaintiff would have corrected the situation immediately. By waiting, the defense counsel could then argue that the dismissal could not be undone at that point and after prior entry on the docket.

Thankfully, both the circuit court and the Court of Special Appeals upheld the integrity of the legal process. They recognized that the defense’s argument on dismissal of the agent was contrary to the parties’ intention and sound law and also would have resulted in an injustice. The CSA rejected the technicality and upheld the jury’s verdict, ensuring that the defendant was held liable for the malpractice it committed.

In part 2 of the blog series on this case, I will examine the circuit court’s revisory power over the dismissal. In part 3, I discuss the ruling on rebuttal expert testimony.

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.

Court Opinion

The plaintiff, a reservist in the Air National Guard, and his wife brought claims for medical malpractice. They specifically sued under the Federal Tort Claims Act for a surgery he received at a military hospital. The district court dismissed the claims for lack of subject matter jurisdiction under the complex and often misunderstood Feres doctrine, which states that injuries incident to service in the military are not actionable. The plaintiffs then appealed. (Op at 3). 

The Fourth Circuit then affirmed. The court noted that the plaintiff received surgery at the military hospital because he was a member of the military. Even though he was inactive at the time of the surgery, the military had not discharged him nor given him leave similar to discharge. That is sufficient to bar the claims under the Feres doctrine. This decision has significant implications for other military members who may be considering similar claims. (Id.). 

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Medical Malpractice on Inactive Military

The Carter case, while focused on whether the plaintiff’s inactive status took his claims outside of the Feres doctrine, has significant implications for military malpractice claims. I examine broader aspects of what military members face when bringing such claims.

For US military members, pursuing legal recourse for such negligence presents unique challenges. I will explore the legal framework governing medical malpractice claims by military personnel, including the Federal Tort Claims Act (FTCA), the Feres Doctrine, and the Military Medical Accountability Act (MMAA).  

The Federal Tort Claims Act (FTCA)

The FTCA is a federal law that generally waives the sovereign immunity of the United States. This law allows individuals to sue the government for certain torts (civil wrongs) committed by federal employees. However, the Feres doctrine significantly impacts the FTCA’s applicability to military members.  

The Feres Doctrine

The Feres Doctrine, established in Feres v. United States (1950), is a legal principle that bars most claims by service members against the United States for injuries “incident to service.” This includes injuries sustained during military training, combat operations, and even those resulting from medical treatment within the military healthcare system.  

The rationale behind the Feres Doctrine is complex and multifaceted. It seeks to:

• Maintain military discipline and order: Allowing lawsuits against the military could undermine the chain of command and hinder the effective functioning of the armed forces.
• Protect the government’s discretionary functions: The Feres Doctrine aims to shield the government from liability for policy decisions and judgments made in the course of military operations.
• Provide alternative compensation mechanisms: Service members and their families have access to various benefits, such as disability compensation, medical care, and survivor benefits, which are intended to compensate for injuries sustained in the line of duty.  

Criticisms of the Feres Doctrine:

The Feres Doctrine has been a subject of considerable debate and criticism. Critics argue that it:  

• Denies service members equal access to justice: It prevents them from seeking redress for genuine medical negligence, even when they suffer significant harm.  
• Disregards individual rights: It unfairly limits the ability of service members to hold the government accountable for its actions.
• May incentivize substandard care: The lack of legal recourse could potentially lead to complacency and a decline in the quality of military healthcare.

The Military Medical Accountability Act (MMAA)

Recognizing the limitations of the Feres Doctrine and the need for greater accountability within the military healthcare system, Congress passed the MMAA in 2019. This legislation allows service members to file administrative claims with the Department of Defense (DoD) for medical malpractice that occurs in certain military medical treatment facilities.  

Key provisions of the MMAA:

• Expanded scope of claims: The MMAA covers a broader range of medical malpractice claims than previously allowed under the Feres Doctrine.  
• Administrative claims process: Service members can file claims with their respective military branches, which will be reviewed and adjudicated by a designated claims board.  
• Compensation limits: The MMAA sets limits on the amount of compensation that can be awarded for non-economic damages, such as pain and suffering.  
• Exclusions: The MMAA does not apply to claims arising from combat operations, certain training activities, or medical care provided in combat zones or on deployed vessels.

The MMAA represents a step towards improving accountability and access to justice for service members injured by medical malpractice. However, it is important to note that the claims process can be complex and challenging. In addition, the success rate of claims remains to be seen.

The Administrative Compensation Program

For service members who cannot pursue legal action under the FTCA or the MMAA, the Administrative Compensation Program (ACP) provides an alternative mechanism for seeking compensation for injuries or death resulting from military service. The Department of Defense administers the ACP. The program offers a streamlined process for resolving claims without the need for litigation.  

Key features of the ACP:

• Broad coverage: The ACP covers a wide range of injuries and losses. These include those resulting from medical malpractice, accidents, and also other incidents related to military service.
• Simplified process: The claims process is relatively straightforward, and claimants can typically receive a decision within a few months.
• Limited compensation: The amount of compensation available through the ACP is generally lower than what could be obtained through a successful lawsuit.

The ACP can be an option for service members who are unable to pursue other avenues of relief. However, it is important to understand the limitations of the program and to seek legal advice if necessary.

Conclusion

Medical malpractice claims by US military members present unique legal challenges. These challenges are due to the interplay of the FTCA, the Feres Doctrine, and the MMAA. The MMAA represents a step forward in addressing the needs of service members. However, navigating the legal landscape can be complex and daunting.  

It is crucial for service members who believe they have been injured by medical malpractice to seek legal counsel. They need an experienced attorney who specializes in military law. We can help assess the specific circumstances of the case. Then determine the most appropriate course of action, and advocate for the best possible 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 for Apparent Agency of Orthopedic Surgeon

A car accident seriously injured the plaintiff, and afterward, EMTs, who are often the first responders in such situations, transported him by ambulance to a hospital’s emergency room. (Op. at 1). The EMTs decided to take the plaintiff to the defendant hospital because it had a trauma center, rather than a hospital closer to the accident that did not. The plaintiff was conscious but in and out of it. He specifically relied on the hospital and its trauma center to treat him. (Id. at 18).

The hospital had a two-page, 25-paragraph form stating that emergency room physicians and surgeons are not hospital employees. However, there was an x where the plaintiff was supposed to initial. Moreover, the patient’s signature line was blank. There also was a notation that said patient intubated unable to sign. But there was no evidence about how the x or notation got there. The plaintiff subsequently testified that he never saw the form. (Id. at 19-20).

Three hours after the plaintiff’s arrival, an orthopedic surgeon performed an emergency fasciotomy. Afterward, doctors amputated both of the plaintiff’s legs above the knee. (Id. at 20-21).

The plaintiff then brought suit against the surgeon and the hospital in the Circuit Court for Prince George’s County. (Id. at 1). The jury returned a verdict for the plaintiff. The hospital moved for judgment notwithstanding the verdict on the ground that there was insufficient evidence to show that the plaintiff had believed the surgeon was an agent of the hospital. The circuit court granted the motion, and the Court of Special Appeals affirmed. (Id. at 1-2).

Court of Appeals Analysis of Apparent Agency of Orthopedic Surgeon

Representation

The hospital specifically held out that it had a trauma-level emergency room that would have an orthopedic surgeon available. Accordingly, the Court of Appeals stated that the hospital did not seriously dispute this element. (Id. at 26).

Reliance

When a patient is in acute distress, they look to the hospital rather than a specific surgeon. A patient in that state has no time or ability to choose among doctors or explore their contractual status. (Id. at 27). The plaintiff knew the hospital was a trauma center and relied on the hospital to treat him. The EMTs also relied on the representation that the hospital would provide the needed staff. (Id. at 28). 

Reasonableness

The Court of Appeals found that the hospital’s consent form was not a model of clarity. The paragraph about certain medical providers not being employees was about billing and was unlikely to be understood to mean that the hospital would not be responsible for care. (Id. at 30). In addition, there was no evidence that the plaintiff ever saw the form. (Id. at 31).

The Court of Appeals concluded that there was sufficient evidence for a jury to find that the surgeon was the hospital’s apparent agent (Id. at 32). 

The Dissent

The dissent’s view was that the evidence was insufficient to conclude that the plaintiff believed an agency relationship existed. (Dis. at 1). They disagreed that the EMTs could rely on the representation on behalf of the plaintiff. (Id. at 2-3). In addition, the plaintiff did not talk with the EMTs about what hospital they would take him to. (Id. at 4).

Commentary by the Baltimore Medical Malpractice Lawyer on Apparent Agency of an Orthopedic Surgeon

Williams is a crucial case that reaffirms the principle of apparent agency in emergency room admission and treatment. Patients often choose a hospital based on how it holds itself out to the public in providing medical services. Significantly, the way hospitals have done this has changed over time. Now, hospitals advertise extensively on the internet, TV, and billboards. They emphasize all the medical services they can provide and highlight their doctors, who they believe are exceptionally qualified. However, any mention of independent contractor relationships with the doctors is noticeably absent from all of this advertising.

Hospitals cannot have it both ways. They cannot constantly advertise what they offer and then try to evade responsibility by saying they didn’t offer it, relying on undisclosed contracts. The fine print in an admission form should not undo the representations to the contrary that the hospitals consistently make to the public.

The Williams case helps hold hospitals accountable for their representations.

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 Appellate Court of Maryland issued an unreported opinion in McCormick v. Housing Authority of Baltimore City (January 30, 2024). The case involved a pro se plaintiff public housing resident, alleging that soil erosion had caused water problems in her unit that had caused her many health problems.

In the Courts

After the plaintiff’s case, then the circuit court granted a motion for judgment. The trial judge primarily focused on the lack of expert testimony connecting the plaintiff’s medical conditions to the soil erosion. (Op. at 5).

The Appellate Court addressed the issues the plaintiff attempted to raise in her brief. The plaintiff complained that the trial court did not grant her motion for default based on the defendant’s failure to file a timely answer. The Court, however, cited the transcript showing that the plaintiff agreed to withdraw the motion and proceed with the trial. (Id. at 8). 

The Court also concluded that the pro se plaintiff had failed to establish the elements of negligence, and the trial court correctly granted the motion for judgment. (Id. at 10-12). Specifically, the plaintiff did not put on causation expert testimony to link her physical injuries to soil erosion.

The plaintiff also failed to establish a breach of contract. Significantly, the plaintiff failed even to introduce a copy of her lease. (Id. at 13). The Appellate Court concluded that the circuit court correctly granted the defendant’s motion for judgment. (Id. at 14). Further, the procedural errors that the plaintiff raised were not meritorious. (Id. at 16-17).

Commentary By Baltimore Medical Malpractice Lawyer Mark Kopec

Pro Se Plaintiff

The Appellate Court noted that the plaintiff had filed an informal brief that did not conform to the rules, including the designation of issues for the appeal. (Id. at 7). However, the Court analyzed the plaintiff’s submission. It restated the questions in a way the Court believed reflected the plaintiff’s concerns. 

The court has flexibility in dealing with pro se plaintiffs. Maryland courts have repeatedly said they give no special treatment to a pro se party. Pickett v. Noba, 114 Md. App. 552 554-555 (1997). This principle allows the court to ensure a pro se party’s failure to follow the rules does not waste the court’s time or prejudice the administration of justice. In McCormick, the Court could have struck the brief for failing to comply with the rules and dismissed the appeal. MD Rule 8-503.

Flexibility

However, the court also can choose to be flexible, as it did here. The Appellate Court did not dismiss the appeal. Instead, the Court attempted to glean the issues the plaintiff was trying to raise. Then, the Court examined the transcript and papers from the proceeding below to assess those issues. The lawyers usually do this by gathering support from the record in presenting their arguments. The McCormick Court gave the plaintiff a full review. No one could say she didn’t receive a full hearing of her issues. As a result, there is more of a sense of justice than if the Court had dismissed the appeal because she did not have the legal assistance to state her claims correctly.

The portions of the transcript cited suggest that the trial court was also deferential to the pro se plaintiff. The trial court repeatedly offered the plaintiff the option of postponement if she was not completely ready to proceed with the trial. (Id. at 16).

Evidently, the trial court probably could have disposed of this case on a pre-trial motion for summary judgment based on the same facts that it entered judgment at trial. However, it is not clear why that didn’t happen. In any event, the courts gave this plaintiff a full hearing of the issues she tried to raise.

The Appellate Court issued a subsequent opinion in this case eon June 11, 2024, following a motion for reconsideration and remand. It contains similar analysis, and the result is the same.

Other Pro Se Case

Ritchie v. Damiano, No. 1793 (Nov. 13, 2023) Appellate Court of Maryland upheld denial of motion for extension of time to respond to motions to dismiss. Pro se plaintiff did not demonstrate he had meritorious response to dismissal arguments, including expired statute of limitations and deficient certificate of qualified expert.

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 existence of a wrongful death spouse may sound like a simple question. However, to get married in Maryland, you must obtain a marriage license and have a ceremony officiated per Maryland law. Conversely, state law does not allow the formation of common law marriages in Maryland. A common law marriage is one where the couple has not obtained a marriage license or had an approved ceremony. Eight states currently allow common-law marriage.

However, Maryland does recognize a common law marriage if the couple correctly enters into it in a state that recognizes such marriages. Common law marriage was the issue in a recent Maryland medical malpractice case.

The Case

The Appellate Court of Maryland issued a reported opinion in Zadnik v. Ambinder (May 23, 2023). The plaintiff filed a wrongful death action alleging that the decedent’s death from colon cancer was the result of medical malpractice in Maryland. The plaintiff alleged that the deceased was his wife under Pennsylvania common law. The doctor filed a motion to dismiss, or in the alternative, for summary judgment, arguing that the plaintiff did not have standing to bring the action. The defendant specifically argued that the plaintiff and the decedent were not legally married. (Op. at 1-2).

The circuit court dismissed the complaint for lack of standing, finding that the plaintiff had not presented sufficient evidence of the common law marriage. (Id. at 1).

The Evidence of Wrongful Death Spouse

In the plaintiff’s discovery responses, he stated that he and the decedent had exchanged vows privately in the home in Pennsylvania and became common law spouses. He gave the date and described the precise exchange. They were both divorced Catholics and could not get remarried in the church. They did not tell most of their family, friends, and neighbors, nor did they identify themselves as married in tax documents. (Id. at 2-3).

The records in the case had contradictory references. The death certificate listed the decedent as divorced, as did many of her medical records. However, the medical records refer to the plaintiff as her husband in several places. The obituary referred to the plaintiff as the decedent’s life partner. The plaintiff did not file a claim in the estate. One newspaper article referred to the decedent as wife, another as the partner. The couple held the deed to their home as joint tenants with the right of survivorship. (Id. at 3).

Circuit Court Decision

The circuit court ruled that the plaintiff had failed to provide sufficient evidence that he was a wrongful death spouse. He did not establish that they held themselves out as spouses. There were no witnesses to the wedding ceremony and nothing other than the plaintiff’s testimony showing that the defendant considered that event to be her wedding ceremony. Evidence of cohabitation was insufficient. The trial court dismissed the complaint. (Id. at 4-5).

Appellate Court Decision: Sufficient Evidence for Wrongful Death Spouse

Pennsylvania no longer permits common-law marriages to be formed. However, it recognizes common law marriages formed before January 2, 2005. Pennsylvania requires exchanging words in the present tense to create a marriage. Additionally, the party seeking to prove the marriage must provide clear and convincing evidence. (Id. at 9). 

The defense argued that the plaintiff could not prove the marriage solely through his self-serving testimony. (Id. at 12). However, the Appellate Court noted that Pennsylvania cases contradicted this assertion. Those cases have expressly held that the testimony of the surviving party alone as to the exchange of present tense vows is sufficient to meet the clear and convincing standard. (Id. at 13).

The Court then found that the plaintiff’s description of the marriage vows in his affidavit and discovery responses met the Pennsylvania standard. As a result, the Court ruled that dismissal or summary judgment was an error. (Id. at 14-15).

The evidence that the parties did not hold themselves out as married was irrelevant to whether the plaintiff met his burden. However, the defense could use it at trial to challenge the credibility of the plaintiff’s testimony. The Court reversed and sent the case back to the trial court for further proceedings. (Id. at 15-16 & fn 13).

Status

At the time of this post, the trial court docket shows that this case is pending. Although the plaintiff had filed a demand for a jury trial, the docket states that the case will have a bench trial.

Commentary By the Baltimore Medical Malpractice Lawyer

Wrongful Death Spouse: Arguments for Trial

The plaintiff easily met his legal burden to get the spouse issue to trial. However, prevailing on the issue at trial may be more challenging. The defense will be able to use inconsistent evidence about the couple’s marital status.

The defense can question why the couple had no one present and did not tell close family and friends. Also, why didn’t they hold themselves out as married in legal matters? Why did they not go for the benefit of filing jointly as spouses on their taxes? Is there a reason the couple did not have their home in tenants by entireties, protection only for married couples? Why did the plaintiff not file a claim in the wife’s estate? In this lawsuit, the plaintiff now seeks to claim a legal status that he apparently has never asserted.

The plaintiff may have strong answers to these questions. It is critical to note that the issue before the trial court did not require the plaintiff to answer these questions or provide additional evidence.

The bench trial may be because the plaintiff is concerned about a Maryland jury considering the common law marriage. After all, it may be foreign to them. A judge may be more trusted to decide the issue on the facts and law.

Regardless of the motivating factors, common law marriage is a substantial question that most wrongful death spouses do not have to address. However, the issue can arise again, which is noteworthy for Maryland medical malpractice lawyers.

Recurring Issue for Maryland Medical Malpractice Lawyers

Although Pennsylvania does not recognize new common law marriages, ones before 2005 remain valid. In addition, eight other states are continuing to allow common-law marriages. As a result, some of these couples may relocate to Maryland. In addition, hospitals in Maryland regularly draw out-of-state patients for care.

Faced with this issue, the Maryland medical malpractice lawyer must assess the likelihood of prevailing on it. Failure to establish the marriage will be fatal to the whole case. Cases where the defense has evidence to challenge the marriage will have a greater risk.

Update

According to the court docket, it appears that on remand the parties settled the case before trial.

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.