Dismissal Sanction: Bowers v. Retina Group
The Baltimore Medical Malpractice Lawyer Blog delves into the intricacies of Maryland medical malpractice cases. Specifically, this post dissects the discovery sanction of dismissal in a medical malpractice case in the Court of Special Appeals of Maryland’s reported opinion in Valentine-Bowers v. The Retina Group of Washington, P.C., 217 Md. App. 366 (2014).
Factual Background
The plaintiff in this case brought a medical malpractice claim in the Circuit Court for Prince George’s County. The case was against a doctor and also her practice group. The plaintiff alleged that failure to monitor a condition in her eye led to vision loss in that eye. (Op. at 1).
During discovery, the plaintiff failed to respond to interrogatories and a request for production of documents. Two months passed. In addition, defense counsel inquired three times over the course of two months about the discovery responses and the deposition of the plaintiff, and did not receive a response. (Id. at 2).
The defendants then noted the plaintiff’s deposition and filed a motion to compel discovery. The plaintiff did not respond. (Id.).
Upon granting the motion to compel, the court issued a stern warning to the plaintiff about the potential consequences of non-compliance. However, the plaintiff claimed she did not receive the court’s order, which the court inadvertently did not docket. (Id. at 2-3).
The defense filed another motion for sanctions, seeking dismissal. (Id. at 3). Defense counsel appeared for the deposition of the plaintiff, but the plaintiff did not appear. The defense counsel then supplemented their motion for sanctions with this fact. (Id. at 4). The plaintiff provided answers to interrogatories after the court’s second compliance deadline. (Id. at 5).
Trial Court’s Ruling on Dismissal Sanction in Medical Malpractice Case
The trial court granted the defense’s motion to dismiss. It noted the numerous unanswered motions to compel. It also stated that the plaintiff’s counsel failed to comply with both court deadlines and that the court had warned the plaintiff that she could face sanctions and penalties. (Id. at 6).
The court also noted the plaintiff’s lack of communication with her counsel, which was a significant factor in the case. The court emphasized that the plaintiff had a duty to stay in touch with her counsel, which she failed to do for many months. (Id. at 7).
The circuit court applied the five factors for assessing dismissal as a discovery sanction and dismissed the case. The plaintiff appealed. (Id. at 7-9).
Court of Special Appeals
Maryland Rule 2-433(a)(3) gives trial courts broad discretion to impose sanctions for discovery violations. The available sanctions range from striking out pleadings to dismissal. The decision to invoke the ultimate sanction is within the trial court’s discretion, underscoring the court’s authority and responsibility to maintain the integrity of legal proceedings.
The CSA said it does not look at each incident in isolation, but rather at the entire history and context of the case in reviewing the trial court’s decision to dismiss. (Id. at 13). The five factors often overlap and do not lend themselves to a compartmental analysis. (Id. at 12).
Factors
1. Whether the disclosure violation was technical or substantial
The violation was not technical, but was substantial. Belated disclosures are relevant to the other parties’ ability to prepare their case. (Id. at 13).
2. The timing of the ultimate disclosure
The plaintiff failed to provide the discovery by the deadline in the court’s order. The plaintiff’s counsel demonstrated willful disregard throughout the case. The plaintiff provided responses to discovery requests more than 7 months after the defendants issued the requests. (Id. at 17-18).
3. The reason, if any, for the violation
The court found that the fault for the lack of discovery responses and communication lay with both the plaintiff and her lawyer. (Id. at 18-19).
4. The degree of prejudice to the parties respectively offering and opposing the evidence
The prejudice of the defense was great. Memories of witnesses fade, and the ability to locate witnesses becomes an issue. As of the date that the trial court considered the motion for dismissal as a sanction, more than six years had passed since the events at issue. This time period included 2 1/2 years in litigation, due to the plaintiff’s delay in serving the defense. (Id. at 19-20).
5. Whether a postponement might cure any resulting prejudice and, if so, the overall desirability of a continuance
A continuance would not cure prejudice. The plaintiff lawyer’s track record gave the court no reason to think he would suddenly start cooperating. (Id. at 21). Accordingly, the CSA affirmed the judgment. (Id. at 22).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Dismissal Sanction
One of a lawyer’s nightmares is when a client fails to cooperate, or even ‘disappears’ for a time. From the outset of litigation, the court scheduling order sets deadlines for the case. Without the client’s cooperation, a lawyer can fall behind in advancing the case according to the court’s deadlines. This lack of collaboration can include the inability to respond to discovery from the opposing party. Client-lawyer cooperation is essential in such situations.
When this happens, the lawyer mustn’t also disappear. However, that is precisely what happened here. Even if the lawyer cannot advance the litigation without the client’s assistance, the lawyer can inform the opposing party and the court of the situation and his efforts to obtain cooperation.
When the lawyer also disappears, however, there comes a point in the case when it is too late to reverse course. The defense seeks dismissal, and the court considers the track record of wasted time in the case and decides that enough is enough. The impact of delays and nonresponsiveness on case outcomes underscores the urgency and importance of timely action in legal proceedings.
The irony is that this is when the client and the lawyer start responding, but it is too late. If the plaintiff and her lawyer had put in this effort earlier in the case, there would be no dismissal.
You can read other Blog post on dismissal sanction: Scheduling Order Sanctions: Little v. Hyde, and additional posts in the category of Discovery.
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.