Medical malpractice litigation often involves multiple parties, insurance coverage, and high-stakes financial exposure. When plaintiffs sue several medical providers, pre-trial settlement negotiations become a central tactical battleground. When there is a settlement by one party in a medical malpractice case, issues of contribution can arise.

A frequent challenge arises when one defendant settles before trial using a pro rata release while other defendants choose to litigate. How does that settlement affect the non-settling defendants? Specifically, does a standard pro rata release protect a settling party from a subsequent contribution lawsuit by non-settling co-defendants?

The court provided guidance on the Maryland Uniform Contribution Among Joint Tort-Feasors Act (UCATA). It explained what is necessary to extinguish contribution liability. It also outlined how parties must address contribution claims following a pre-trial settlement.

Factual and Procedural Background on Contribution in Medical Malpractice

The litigation originated from a medical malpractice lawsuit filed by plaintiffs against:

• Hospital (along with several of its nurses)
• Doctor and his medical practice entities

Before trial, the plaintiffs reached a confidential settlement agreement with the hospital. In exchange for a financial payment, the plaintiffs then executed a release and voluntarily dismissed the hospital from the lawsuit.

The Terms of the “Swigert” Release

The settlement agreement explicitly stated that the hospital did not admit liability. Instead, the agreement referenced a conditional pro rata mechanism under the principle established in Swigert v. Welk:

1. Conditional Reduction: The plaintiffs agreed that their recoverable damages against remaining defendants (such as doctor) reduce by the hospital’s pro rata share only if there was a subsequent adjudication of joint tort-feasor for the hospital.
2. Indemnification & Escrow: The plaintiffs further agreed to indemnify the hospital against future contribution claims asserted by the doctor. They also agreed to hold half of any judgment recovered against the doctor in escrow as security.

The Trial Verdict and Post-Trial Litigation – Contribution in Medical Malpractice

Following the hospital’s dismissal, the case proceeded to trial against the doctor alone. The jury returned a verdict exceeding $8 million for the plaintiffs. The trial court later reduced this verdict under Maryland’s statutory cap on non-economic damages to $2,186,342.50. The doctor satisfied the judgment in full.

Because the medical malpractice trial had never determined the hospital’s liability, the doctor subsequently filed a separate lawsuit against the hospital seeking statutory contribution.

Contemporaneously, the plaintiffs filed a declaratory judgment action against the doctor. They argued that the pre-trial release extinguished the hospital’s liability and that the doctor waived his rights by failing to file a cross-claim in the original medical malpractice action.

The trial court issued conflicting rulings in the two actions. The Court of Special Appeals consolidated the cases, and the Maryland Court of Appeals granted certiorari to resolve the statutory interpretation.

Key Legal Holdings of the Court on Contribution in Medical Malpractice

The court affirmed that the doctor could pursue a separate contribution action against the hospital.

The court established three primary holdings regarding the Maryland UCATA:

1. Conditional Releases Do Not Automatically Extinguish Contribution in Medical Malpractice

Under Section 3-1405 of the Courts and Judicial Proceedings Article, a release extinguishes a settling party’s contribution liability to other joint tort-feasors only if it provides for an absolute pro rata reduction of the plaintiff’s damages.

The court ruled that a release that conditions the pro rata reduction on a future judicial finding of liability does not satisfy Section 3-1405 unless that finding actually occurs or the settling party explicitly admits joint tort-feasor status in the release. Because the hospital never admitted liability and was dismissed before trial without an adjudication, its contribution liability was not extinguished.

2. A Non-Settling Defendant May Pursue Contribution in a Separate Action

The court held that Maryland law does not require a non-settling co-defendant to file a cross-claim or implead a settling party in the initial lawsuit.

Neither Section 3-1405 nor the Maryland Rules (including Rule 2-332 and Rule 2-614) mandate that contribution claims resolve within the primary action. A non-settling defendant who pays more than their pro rata share retains the statutory right to bring an independent action for contribution.

3. Non-Settling Defendants Do Not Waive Contribution Rights

The doctor did not waive his statutory contribution rights by choosing not to assert “release” as an affirmative defense under Rule 2-323(g)(12) during the medical malpractice trial.

Because the doctor’s right to contribution was created by statute rather than derived as a third-party beneficiary of the private settlement agreement, he was not obligated to plead the release in the underlying action.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Contribution in Medical Malpractice

This opinion offers lessons for plaintiffs, settling co-defendants, and non-settling tort-feasors.

Because a conditional release leaves contribution liability open unless tort-feasor status is resolved, legal counsel must carefully evaluate their settlement strategies.

Pre-Trial Settlement Decision Framework

When drafting or evaluating a pre-trial settlement under the Maryland UCATA, the legal analysis moves through a set of decision points:

• Is Joint Tort-Feasor Status Expressly Admitted in the Release?
  • YES: Contribution is Extinguished. The non-settling party’s potential judgment is automatically reduced pro rata.
  • NO: The agreement is a Conditional “Swigert” Release. It requires a subsequent adjudication of joint tort-feasor status to trigger any pro rata reduction.
• If Conditional, Was the Settling Party’s Status Adjudicated in the Underlying Trial?
  • YES: Contribution Extinguished. The pro rata credit applies to reduce the verdict.
  • NO: Contribution Not Extinguished. The non-settling defendant retains the legal right to pursue a separate, post-judgment action for contribution against the settling party.

Strategic Implications for Settling Defendants (Hospitals and Insurers)

For settling parties, achieving finality is typically the primary objective of entering into a settlement agreement. This decision underscores that executing a standard “Swigert release”—where liability is denied and pro rata reduction is conditioned on a future finding—does not guarantee immediate immunity from contribution claims in medical malpractice cases.

1. Admitting Joint Tort-Feasor Status: If absolute closure is the goal, a settling defendant must include an express admission or stipulation of joint tort-feasor status within the release text (as demonstrated in Jones v. Hurst). This automatically triggers a pro rata credit for non-settling defendants under Section 3-1405 and completely bars future contribution lawsuits.
2. Indemnification and Escrow Provisions: If a settling defendant refuses to admit fault, it must rely on indemnification clauses and escrow arrangements, as the hospital did in this case. However, this shifts the financial exposure back onto the plaintiff, who may have to refund portions of their recovery to defend or indemnify the settling party.

Tactical Options for Non-Settling Defendants

Non-settling co-defendants face complex strategic decisions when a co-defendant settles before trial:

• Choice of Forum for Contribution: Non-settling parties do not have to cross-claim or keep a settling defendant in the original lawsuit.
• Trial Strategy Considerations: As noted in the proceedings, non-settling defendants often choose not to cross-claim against a settling co-defendant during the main trial. Keeping a settling medical provider in front of the jury can create confusion or force the remaining defendant to split focus between defending itself and proving the co-defendant’s fault. Pursuing a post-judgment contribution action in a separate proceeding allows the non-settling party to focus purely on defending against the plaintiff first.

Drafting Tips for Plaintiff Attorneys

Attorneys representing plaintiffs must evaluate the true net value of any partial settlement:

• Evaluate Indemnity Risk: When executing a conditional release that does not provide joint tort-feasor status, plaintiffs must understand that they may be back in post-trial litigation via indemnity obligations.
• Escrow Holdbacks: As shown in this litigation, plaintiffs may have significant portions of their recovery tied up in escrow accounts pending the outcome of secondary contribution claims. Clear language regarding the scope and timeline of indemnity obligations is needed to avoid prolonged financial uncertainty.

Summary of Statutory Requirements

Conclusion on Contribution in Medical Malpractice

This opinion reinforced that conditional release agreements cannot easily bypass statutory contribution rights under Maryland law.

Unless a settling party admits joint tort-feasor status or the court adjudicates it liable, non-settling defendants who pay more than their pro rata share in a medical malpractice case retain the right to seek contribution in a separate proceeding.

Attorneys drafting settlement agreements in multi-party litigation must carefully balance the desire to deny liability against the need to achieve complete protection from future contribution claims.

You can read additional Blog posts on issues involving Settlement and Judgments, including:

• Joint Tortfeasors: Scott v. Universal 1
• Entry of Judgment: Scott v. Universal 2
• Release & Wrongful Death: Spangler v. McQuitty 2

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

This litigation began after a patient suffered severe injuries in 2002 while receiving epidural anesthesia at a hospital. The patient later died in 2004. The decedent’s family filed a medical malpractice action. They filed a statement of claim with the Health Care Alternative Dispute Resolution Office (HCADRO). They later amended the claim to add the attending doctor and his professional association. To satisfy Maryland statute expert requirements, the plaintiff filed an expert certificate and a report. The case was transferred to the trial court after arbitration was waived.

During a discovery deposition, the plaintiff’s expert witness revealed that he lacked expert experience or clinical background in vascular surgery. The defendant doctor was a vascular surgeon. Accordiingly, the trial judge determined that the expert was not qualified to testify regarding the standard of care. On January 24, 2007, the trial court granted summary judgment for the defendants. The plaintiff filed a motion to reconsider. They argued that an insufficient expert certificate requires a dismissal without prejudice rather than summary judgment. The trial court denied reconsideration.

Second Suit

Sensing potential statute of limitations issues, the plaintiff filed a second, identical claim with the HCADRO on February 2, 2007. The plaintiff filed an expert certificate and transferred the second case to the trial court. In response, the defendants moved for summary judgment in the second suit. They argued that the first court’s summary judgment barred the second action under the doctrine of res judicata.

The trial court agreed with the defendants. It held that a final judgment on the merits bars relitigation of the same claim. This is true even if the underlying ruling was legally incorrect. The court entered a replacement order granting summary judgment in the second case on November 3, 2008, to cure a clerical notice defect.

Meanwhile, the plaintiff appealed both cases. However, the plaintiff voluntarily dismissed the appeal in the second case on July 7, 2009.

In the first case, the intermediate appellate court held that an insufficient expert certificate warrants a dismissal without prejudice, not summary judgment. The Court of Appeals affirmed that holding on August 16, 2011. On September 28, 2011, the trial court entered an order dismissing the first suit without prejudice. However, by that time, the statute of limitations had expired.

Seeking to revive the claims, the plaintiff filed a motion to reopen and vacate judgment in the second case under Maryland Rule 2-535(b). The trial court denied the motion, and the plaintiff appealed. The Court of Appeals granted certiorari before intermediate appellate review.

Parties’ Arguments

The plaintiff argued that the second case was dismissed solely because of the preclusive effect of the first judgment. Once the appellate court reversed and vacated the first judgment, equity demanded that the court reopen the second case. The plaintiff contended that Rule 2-535(b) should permit relief under these circumstances. Otherwise, the victory in the first appeal would be meaningless due to the expiration of the limitations period.

The defendants argued that the doctrine of res judicata applied when the trial court ruled on the second suit because the first judgment was still standing. They maintained that the plaintiff failed to establish fraud, mistake, or irregularity, which use 2-535(b) requires to vacate an enrolled final judgment.

The Court’s Ruling

The Court of Appeals affirmed the trial court’s decision. It held that summary judgment in the second suit was legally correct when entered because res judicata applied to the final judgment then in effect. The court explained that an outstanding final judgment retains its preclusive effect even while an appeal is pending, regardless of whether that judgment is later determined to be wrong.

Furthermore, the court ruled that Rule 2-535(b) did not provide relief. Vacating an enrolled judgment requires clear and convincing evidence of fraud, mistake, or irregularity. The court clarified:

• Fraud: Must be extrinsic fraud that prevented the actual dispute from being given to the fact finder.
• Mistake: Is limited to jurisdictional defects, such as a lack of valid service of process.
• Irregularity: Refers to a failure to follow required procedural process, not an erroneous substantive ruling.

Because none of these narrow conditions were present, the court concluded that the trial court did not abuse its discretion in refusing to reopen the second suit.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Res Judicata

Medical malpractice litigation in Maryland involves intricate administrative mandates, strict deadlines, and procedural steps. Counsel for injured parties face significant hurdles when navigating pre-suit filings, expert certificate requirements, and statutory limitations. When a trial court grants summary judgment over an expert qualification issue, an attorney may have to act to preserve the client’s rights. The tension between appealing an erroneous order and protecting a claim against the statute of limitations creates a challenging tactical dilemma.

In this case, the plaintiff’s counsel recognized the impending statute of limitations risk and refiled the claim. However, the procedural pathway chosen ultimately allowed res judicata to close the door on the substantive claims. It is an unfortunate outcome because the plaintiff was correct all along. The trial court should have entered a dismissal without prejudice. The plaintiff should have never had to appeal in order to obtain this outcome.

Procedural Tools

It is easier to look back to navigate this situation than to do it in real time. It is worthwhile to review it for learning purposes. The court pointed out several procedural tools that could have been used to preserve the second suit while the first appeal proceeded:

• Administrative Stay: The plaintiff could have requested a stay from the HCADRO after refiling the statement of claim, keeping the second administrative proceeding dormant pending the outcome of the first appeal.
• Judicial Stay: After transferring the second claim to the trial court, the plaintiff could have formally moved for a stay of all proceedings pending final appellate resolution of the first case.
• Protective Appeal: Rather than voluntarily dismissing the appeal in the second case, the plaintiff could have maintained a protective appeal and requested that the appellate court hold the matter open or stay it until the first appeal concluded.

By permitting the second action to reach an enrolled final judgment without an active stay or pending appeal, the preclusive bar became permanent.

How to Avoid This Outcome – Res Judicata in Medical Malpractice

To avoid this outcome in complex malpractice claims, practitioners can follow procedural steps when facing parallel proceedings or preclusive rulings:

1. Request Formal Stays Early: When refiling a claim to protect against the statute of limitations, ask the tribunal or court for a formal stay of proceedings until the controlling appeal is resolved.
2. Maintain Protective Appeals: Avoid voluntarily dismissing an appeal in a secondary action. Instead, keep the appeal open and request that the appellate court stay the matter pending the primary decision.
3. Ensure Expert Qualifications Pre-Filing: Carefully verify that chosen medical experts satisfy all statutory qualification criteria for the specific specialty involved before executing expert certificates.

You can read other Blog posts on issues involving 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

A surviving spouse, her three children, and also the estate of a deceased patient brought a medical malpractice and wrongful death action. The lawsuit alleged that negligent medical care caused the decedent’s death. The plaintiffs filed their complaint in the Circuit Court for Baltimore City.

Location facts would play a role in a forum non conveniens motion. The decedent received primary medical care over a nine-year period at an office located in White Marsh. This medical facility is located within Baltimore County. The treating primary care physician was an employee of the defendant medical provider. In addition, the doctor performed all medical care and examinations within Baltimore County.

Furthermore, the key parties maintained clear geographic ties to Baltimore County rather than Baltimore City. The surviving spouse resided in Baltimore County during the entire nine-year course of treatment. She then continued living in the same home after her husband passed away. One child also lived at home in Baltimore County with her. Moreover, the other two surviving children lived in Harford County and Delaware. The primary treating physician also lived in Baltimore County. Additionally, the corporate headquarters for the defendant medical provider sat in White Marsh, within Baltimore County. However, none of the parties lived or maintained primary operations in Baltimore City. The only connection to Baltimore City was the office location of the law firm representing the plaintiffs.

The defendant filed a motion to transfer the case to Baltimore County. The defendant specifically based this motion on Maryland Rule 2-327(c), forum non conveniens, citing the convenience of parties and witnesses. The circuit court judge then granted the transfer motion without holding a hearing or issuing a detailed written opinion. The plaintiffs then filed an expedited appeal to challenge the venue transfer.

Parties’ Arguments

The plaintiffs raised two main arguments on appeal to challenge the venue transfer. Firstly, they asserted a substantive argument. They claimed that a plaintiff has the right to choose among proper venues. The plaintiffs contended that Baltimore City offered convenience for potential expert witnesses. They also suggested out-of-state expert witnesses could travel easily through local transit hubs located in Baltimore City. Secondly, the plaintiffs raised a procedural argument. They argued that the trial judge failed to hold a hearing or articulate specifically the findings on the record. They asserted that this silence meant the trial court failed to exercise true discretion, which constitutes an automatic abuse of discretion.

The defendant argued that the trial court acted well within its wide discretion on forum non conveniens. They pointed out that every party, fact witness, and medical event was tied directly to Baltimore County. The defendant also emphasized that the plaintiffs did not reside in Baltimore City. Therefore, the initial choice of forum carried little weight. The defendant further noted that two identified expert witnesses lived and worked in Baltimore County. Finally, the defendant maintained that Maryland procedural rules do not require a hearing or formal written findings to grant a transfer motion.

Court’s Ruling on Forum Non Conveniens

The Court of Special Appeals affirmed the trial court’s transfer order. The appellate court explained that the grant of a transfer motion under forum non conveniens is immediately appealable as a final judgment. The court evaluated the ruling using the abuse of discretion standard.

It concluded that Baltimore County was by far the more convenient forum. The court held that the trial judge properly exercised discretion without committing any procedural error.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Forum Non Conveniens

The appellate court’s ruling is supported by precedent and legal principles. However, one cannot help but notice a distinct element of irony in this procedural battle. The parties engaged in intense, expedited appellate litigation solely to dispute geographic convenience between two neighboring courts. The Circuit Court for Baltimore City and the Circuit Court for Baltimore County sit only a short drive apart from each other. Lawyers, litigants, and experts travel between these two jurisdictions daily. Yet, both sides invested substantial time and resources litigating whether a courtroom in Towson was markedly more convenient than a courtroom in Downtown Baltimore.

This dynamic underscores how venue decisions and forum non conveniens shape tactical advantages in medical malpractice cases. While the physical distance between the courtrooms is trivial, the perceived differences in jury pools and docket management remain significant drivers of strategy for both defense and plaintiff counsel.

You can read additional Blog posts on procedure issues, including:

• Plaintiff’s Venue: Scott v. Hawit
• Plaintiff’s Forum: UM v. Kerrigan

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 Disputed Settlement

The background to the disputed settlement and hearing issue began when, on June 10, 2021, two spouses brought their 2007 car for repair. They took the vehicle to an auto shop in Camp Springs, Maryland. On June 21, a repair shop worker called the couple. The worker said the car would be ready soon. However, two hours later, the worker called again. She told them that the car was missing. The husband called the local police to report the missing car. Then, the couple met a police officer at the repair shop. The staff told them that thieves stole the car overnight.

On June 23, police officers in Virginia found the missing car. A tow yard in Woodbridge, Virginia had the vehicle. The car was chopped up. Many parts were missing or broken. An officer told the couple that the tow yard bought the car. The couple received a paper from the tow yard dated June 22, 2021. The paper named an agent of the tow yard as the buyer. It also named a car dealership as the seller. On July 2, workers brought the car back to the couple’s house.

The Lawsuit

The couple filed a court case on February 24, 2023. They filed the suit in the Circuit Court for Prince George’s County. The couple claimed trover and conversion, negligence and breach of contract (bailment), and conspiracy. They sued both the repair shop and the tow yard. The repair shop filed an answer to the suit. But the tow yard did not answer. Therefore, the court entered a default judgment against the tow yard for $100,991.41. This money included $20,991.41 in real loss and $80,000 in punitive damages.

Before trial, the repair shop filed motions to block certain facts. They wanted to block a bill of sale. They also wanted to block evidence of a transport contract. The couple had made that contract with their son.

A jury trial started on June 26, 2024. First, the court picked a jury. Next, the judge held a talk with the lawyers. During this talk, the judge granted the repair shop’s motions. The judge ruled that the bill of sale was unfair. He also ruled that the transport contract was uncertain. After this ruling, the lawyer for the couple asked for a short break.

The Issue of Disputed Settlement and Hearing

When the break ended, the lawyers returned to court. They told the judge that they reached a deal. The judge said he would dismiss the case under court rules. However, he did not ask for the terms in open court. At the same time, a second judge filed orders. Those orders actually denied the repair shop’s earlier motions. But the parties did not know this yet.

Soon after, the husband wrote letters to the judge. He asked for a meeting right away. He said his lawyer made the deal without his consent. Also, he said he never agreed to take $14,000. He said his lawyer pressed him to settle. Because of this dispute, the lawyer moved to step down.

Next, the husband filed papers on his own to reopen the case. He explained that he never gave his lawyer consent to settle. In addition, he said his lawyer dropped the demand from $20,000 to $14,000 without approval. He stated that he wanted to continue the jury trial. Nevertheless, the trial judge denied these requests without holding a hearing on the supposed settlement.

Later, the repair shop moved to enforce the deal. They asked for lawyer fees too. They filed a sworn statement from the former lawyer. The lawyer claimed he had full power to settle. The husband filed an answer to oppose the motion. He gave a sworn statement from his son as well. He repeated that he never gave verbal or written consent.

Trial Court’s Ruling

On November 27, 2024, the court granted the motion to enforce the deal. The judge did not hold a fact-finding hearing on the disputed settlement. He ordered the husband to sign the deal in five days. He also dismissed the case with prejudice. Finally, he ordered the husband to pay $1,665 in lawyer fees. The husband then filed a timely appeal.

Parties’ Arguments

On appeal, the plaintiff argued that the trial court made a mistake. He asserted that the court erred by enforcing the deal without a hearing. Furthermore, he argued that a full hearing was necessary under the law. He had filed sworn papers showing he never gave his lawyer power to settle. Thus, he argued that real factual disputes existed. The court needed to decide if a binding deal existed. The court also needed to check if the lawyer had express power to bind him.

In response, the defendant argued that the trial court acted correctly. The defendant claimed that the record showed a binding contract. Furthermore, the defendant asserted that the former lawyer had express authority to settle the claim. The defendant also argued that the statements in court proved mutual assent. They claimed the draft papers showed an intent to be bound.

Court’s Ruling on Hearing on Disputed Settlement

The appeals court ruled that the trial court made an error. The trial court should not have enforced the deal without holding a fact-finding hearing. So, the appeals court sent the case back for more steps. They did so without affirming or reversing the trial court judgment.

In its legal opinion, the appeals court explained the governing law. Settlement deals are contracts under Maryland law. However, a motion to enforce a settlement is not a routine request. When a lawyer settles a case, the party moving to enforce must prove two things. First, they must show that counsel acted with client power. Second, they must show that this power expressly covered the settlement.

Furthermore, the court stated clear rules for settlement disputes. When parties dispute the existence of a deal, the court must act. If they dispute the lawyer’s authority, a simple ruling is not enough. Instead, the trial court must hold a full fact-finding hearing to resolve the facts. A summary ruling is proper only when the material facts are clear and undisputed.

Applying these rules, the appeals court looked at the record. The record had no signed written agreement. Thus, the record showed at most an oral talk with unwritten terms. In addition, the plaintiff disputed the deal from the start. He filed sworn papers denying his lawyer’s power. Therefore, a major dispute of fact existed. The trial court could not resolve this dispute using only lawyer statements or cold papers. Instead, the court needed a formal hearing with witness testimony.

Because the court remanded the case, it did not address the second issue. It declined to rule on the award of lawyer fees.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Hearing on Disputed Settlement

Under basic contract rules, a lawyer cannot settle a lawsuit without clear power from the client. When a client files sworn papers stating that a lawyer settled a case without consent, a real dispute of fact exists. The trial court erred by enforcing an unwritten deal based only on cold court filings and conflicting lawyer talks. The law requires a trial court to resolve such factual disputes through a full fact-finding hearing. At this hearing, witnesses can testify under oath. Then, the court can check truthfulness before taking away a person’s day in court.

As a key practice tip, whenever lawyers settle a case in court, the lawyer should always ask to put the deal on the record in open court. The lawyer should do this with the client present in the courtroom. Placing the terms on the record while the client is present ensures that the client hears and accepts the deal. Counsel should ask the client on the record if they understand the terms. The lawyer should also ask if the client agrees to the settlement amount and gives power to settle. Doing so creates an official record that protects both the lawyer and the client. It also stops future disagreements and avoids motions to enforce or undo the deal. Hopefully, there will be no need for a hearing because there won’t be any disputed settlement.

You can read other Blog posts on the topic of Settlement, including Enforcing Settlement: Kolbe v. McKnew.

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 Related Specialty Qualification of Expert Witness

A fifteen-year-old minor presented to a hospital emergency department with gross hematuria and proteinuria. Medical staff diagnosed a urinary tract infection, prescribed antibiotics, and discharged the minor patient. Seven weeks later, the minor patient returned to the emergency department. He was complaining of persistent hematuria, fever, sore throat, and flank pain. A physician’s assistant evaluated the patient and consulted with a board-certified urologist by phone. Neither provider conducted an in-person examination by a doctor that day. The medical team again discharged the patient with antibiotics for a urinary tract infection.

Nearly two years later, the minor patient returned to the emergency department throwing up blood. Diagnostic testing revealed late stage IgA nephropathy, a severe kidney disease. Because the condition advanced too long without proper medical treatment, the patient suffered total and permanent kidney failure needing ongoing hemodialysis.

The plaintiff filed a medical malpractice action in HCADRO under the Maryland Health Care Malpractice Claims Act. The plaintiff filed a Certificate of Qualified Expert signed by a board-certified pediatric nephrologist. The expert witness opined that the defendants breached the standard of care by failing to include nephritis in their differential diagnosis when evaluating the patient’s symptoms.

Parties’ Arguments

The defendants filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. They argued that the plaintiff’s expert witness lacked proper qualifications under section 3-2A-02(c)(2) of the Courts and Judicial Proceedings Article. Specifically, the defendants argued that pediatric nephrology is not a “related specialty” to urology. They claimed that nephrologists diagnose and treat medical kidney diseases, whereas urologists handle surgical issues of the genitourinary tract. Because urologists do not treat nephritis, the defense argued no overlap existed between the fields regarding emergency department care.

Conversely, the plaintiff argued that nephrology and urology are related specialties under the statute because both fields share the kidney as a primary focus. The plaintiff argued that the expert witness had extensive experience handling emergency room consults for patients presenting with blood and protein in their urine. Because developing a differential diagnosis for these initial symptoms is a task performed by both specialties, the plaintiff maintained the statute requirements were satisfied.

Court’s Ruling on Related Specialty Qualification of Expert Witness

The Circuit Court for Baltimore City granted summary judgment for the defendants, ruling that the nephrologist was unqualified to testify against a urologist. On appeal, The Court of Special Appeals of Maryland reversed this ruling and sent the case back to the trial court.

The appellate court stated that medical experts do not need to practice in the exact same field as a defendant. Instead, specialties are related under the statute when their expertise overlaps regarding the specific procedure or treatment in question. The appellate court identified the core procedure at issue as making a differential diagnosis for a patient presenting to an emergency room with hematuria and proteinuria.

Because a differential diagnosis requires a provider to consider all potential causes before making a final conclusion, it necessarily spans medical and surgery kidney conditions. The record showed that the plaintiff’s expert frequently provided emergency room consults for patients showing these exact symptoms. Consequently, the appellate court ruled that nephrology and urology are related specialties under these facts, making the expert fully qualified to submit a certificate.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Related Specialty Qualification of Expert Witness

This decision interprets Maryland statute law and protects injured medical malpractice victims. The Health Care Malpractice Claims Act seeks to eliminate meritless lawsuits by requiring early expert verification. However, the legislature never intended to create artificial procedural barriers that bar legitimate claims.

The trial court made an error by analyzing the specialty overlap based on the final diagnosis of nephritis rather than the initial clinical presentation. A provider making an emergency room evaluation cannot limit their diagnosis thinking to their preferred surgery scope. When a patient arrives with blood and protein in the urine, the standard of care demands a broad differential diagnosis. Both urologists and nephrologists regularly evaluate these symptoms on the front line.

Requiring an exact specialty match in every instance would allow specialists to hide behind narrow sub-specialty definitions when they fail to perform basic diagnosis workups. The appellate court recognized that differential diagnosis is a shared medical task. By focusing on the broad diagnosis process rather than narrow treatment boundaries, the court ensured that qualified medical experts can hold practitioners liable when basic screening steps are ignored.

Risk

This case shows the risk of choosing an expert that is in a different specialty from the defendant doctor. Even when the related specialty qualification is satisfied, a defendant doctor frequently will argue that it is not, and see if a trial court will agree. Here, the trial court did agree. While the appellate court ultimately remedied the issue, the plaintiff lost over two years and associated costs in the process.

You can read additional Blog posts on issues involving Expert Testimony, including:

• Related Specialty: Reid v. BACE 1
• Related Specialty: Otto v. UPMC 1
• Related Specialty: Street v. UPMC 1

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 1, I examined the court’s ruling on initial incomplete medical records and expert opinions.

Factual Background on Medical Malpractice Deposition Scheduling

Following initial record disclosures, the plaintiff retained a licensed physician to review the file and provide expert witness testimony. The trial court issued a formal scheduling order establishing a firm deadline for witness depositions. Specifically, the order required the parties to complete all expert depositions by May 31, 2024.

Before trial, between February and May 2024, defense counsel made multiple attempts to schedule the deposition of the plaintiff’s expert. The plaintiff’s legal team remained largely unresponsive during this timeframe. Counsel eventually provided potential dates on May 22, and both sides agreed to conduct the deposition on June 12. However, on June 10—just two days before the agreed-upon date—the plaintiff’s counsel abruptly cancelled the proceeding. Counsel stated that the scheduling order’s May 31 deadline had already expired.

In response, the defense filed a motion requesting that the court strike the expert witness as a discovery sanction and grant summary judgment. The defense emphasized that the plaintiff failed to make the key witness available within the established timeline.

Deposition Timeline

• October 2023: The trial court issues a scheduling order setting May 31, 2024, as the deadline for expert depositions.
• February–May 2024: Defense counsel repeatedly requests deposition dates, but the plaintiff provides minimal response.
• May 22, 2024: The parties agree to hold the expert deposition on June 12, 2024.
• June 10, 2024: The plaintiff cancels the deposition, citing the passed May 31 deadline.

Parties’ Arguments

The plaintiff argued that striking the expert as a sanction was entirely inappropriate. Counsel contended that the scheduling order explicitly prohibited post-deadline depositions without a court order. Furthermore, the plaintiff asserted that defense counsel failed to monitor the scheduling order deadlines, causing the parties to select a post-deadline date in the first place.

The defendants maintained that the delay resulted directly from the plaintiff’s prolonged lack of responsiveness. They argued that allowing an expert to testify at trial without giving the defense an opportunity to depose the witness would cause severe prejudice. The defendants asserted that striking the witness was necessary because the plaintiff failed to fulfill discovery obligations.

The Court’s Ruling

The trial court declined to strike the expert immediately as a discovery sanction. Instead, the court ordered the plaintiff to make the expert available for a post-deadline deposition prior to trial. The judge observed that the plaintiff’s nonresponsiveness caused the initial scheduling delay. The court also found that cancelling the deposition two days before the agreed date was not done in good faith. However, recognizing that striking the expert would effectively end the plaintiff’s case, the court determined that ordering a late deposition balanced the interests of both parties.

The Appellate Court of Maryland affirmed this ruling, holding that the trial court acted well within its broad discretion. The appellate panel reviewed key procedural factors, including whether the violation was technical or substantial, the underlying reasons for the delay, and the potential prejudice to both sides. The court concluded that ordering the deposition mitigated prejudice to the defense while giving the plaintiff a reasonable opportunity to keep the case alive.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Deposition Scheduling

As a practical matter, the plaintiff was never going to avoid putting the expert up for a deposition. Medical malpractice claims depend heavily on expert testimony, and defense attorneys possess a right to cross-examine those experts before trial. Expecting to shield a core liability witness from a deposition on a technical scheduling issue is simply unrealistic in modern civil litigation.

Cancelling a deposition because the date falls after the scheduling order deadline, in these specific circumstances, was never going to work. The record showed that the plaintiff’s own nonresponsiveness contributed directly to missing the initial deadline. Attempting to use a deadline as a shield after causing the delay creates an unfavorable impression before the court.

When scheduling conflicts or oversight push a deposition past a court deadline, the proper remedy is communication rather than unilateral cancellation. Parties should proceed with the deposition and file a joint motion to amend the scheduling order. Trial judges prefer practical solutions that allow discovery to move forward. Cancelling a deposition at the last minute rarely prevents the deposition from occurring.

You can read additional Blog posts on issues involving Discovery in other cases. Also, the following posts concern scheduling order issues:

• Scheduling Order Sanctions: Little v. Hyde
• Denial of Scheduling Amendment: Estate v. Spring

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 Incomplete Records in Medical Malpractice Case

A paralyzed patient received medical treatment at a regional health center on two separate occasions in 2021. During the first stay, the patient sought care for a seizure disorder. The second stay involved treatment for dehydration, a urinary tract infection, and renal failure. Following these stays, family members noticed severe physical injuries. The injuries included bedsores, skin abrasions, facial bleeding, and an IV line left in the arm upon discharge.

Seeking answers, the patient’s family requested complete medical records from the hospital prior to filing suit. The hospital delivered a response containing under 200 pages. Relying entirely on this initial production, the plaintiff retained a physician as an expert witness. The expert reviewed the partial file and wrote a report detailing standard of care deviations. Specifically, the expert concluded that attending doctors failed to implement basic wound prevention protocols.

The plaintiff subsequently filed a medical malpractice action against the treating physicians. However, during formal discovery, the defense produced the complete medical file. This comprehensive file exceeded 1,000 pages. The larger record revealed that medical providers had actually implemented the required wound care protocols during the hospitalizations.

Document Comparison

• Pre-Litigation Request: Yielded under 200 pages. Relying on this partial file, the plaintiff’s expert found clear deviations from the standard of care.
• Discovery Production: Yielded over 1,000 pages. This complete file directly contradicted the factual foundation of the expert’s primary report.

As trial approached, the plaintiff faced significant hurdles scheduling the expert for a deposition. After delays and a last-minute cancellation, the court ordered the expert to appear. Rather than producing the witness, the plaintiff filed interlocutory appeals and challenged the newly disclosed records.

Parties’ Arguments

The plaintiff moved to exclude the 1,000-page record from trial. Counsel argued that the defense manufactured these documents to defeat the expert’s conclusions. Because the pre-litigation request yielded a smaller packet, the plaintiff asserted that the additional records lacked authenticity. The plaintiff insisted that the trial court should limit the defense to using only the original 200-page file.

The defendants countered that they properly produced the full medical file during discovery. They noted that the plaintiff offered no tangible evidence of fraud or fabrication. Furthermore, the defendants argued that striking the expert witness was appropriate because the plaintiff repeatedly failed to produce the witness for a deposition. They asserted that without a valid expert opinion supported by actual facts, summary judgment was warranted.

The Court’s Ruling

The Appellate Court of Maryland affirmed the trial court’s decisions. The court held that denying the motion to exclude the full medical record was entirely proper. It emphasized that the plaintiff presented zero factual evidence showing that the hospital manufactured records. Merely demonstrating a discrepancy in document volume between pre-litigation requests and formal discovery does not prove deliberate falsification.

Additionally, the court noted that the defense provided the full file nearly a year and a half before trial. This timeframe gave the plaintiff adequate opportunity to re-evaluate the claims. Because the missing factual foundation undermined the expert’s primary theory, and because the expert was not produced for court-ordered depositions, the trial court properly struck the witness. Consequently, summary judgment in favor of the defense was affirmed.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Incomplete Records

It is quite unusual to read an appellate opinion focusing heavily on pre-litigation medical record production. However, the underlying scenario encountered by the plaintiff happens constantly in medical malpractice litigation. Hospitals frequently provide incomplete files when patients request records prior to filing a lawsuit. Plaintiffs should not have to face this administrative failure, but incomplete initial production remains a regular reality in medical injury cases.

We cannot determine exactly why the document gap occurred here. The volume of omitted records was substantial. It remains possible that the initial request did not broadly encompass the entire file. Alternatively, the facility may have simply failed to compile the complete record before litigation began.

An experienced legal team carefully scrutinizes initial record batches. Based on experience, a seasoned team can identify missing categories instantly. They recognize when specific nursing logs, flowsheets, or physician notes must exist given the treatment rendered.

This case demonstrates the critical importance of getting comprehensive records before filing suit. Obtaining the complete file is essential before an expert renders a formal opinion. When new records surface during a case, they can destroy the factual foundation of a case. If the factual basis disappears, the expert opinion can fall apart completely.

Attempting to exclude defense records produced during formal discovery rarely succeeds. Courts will not bar relevant discovery documents without clear evidence of actual fraud. Pre-litigation record omissions must be addressed through thorough verification rather than late evidentiary motions.

Additional Reading

You can read additional Blog posts on related issues:

• Discovery issues
• Exclusion of Evidence: Arrow v. Cade
• Medical Records Cost: Hollabaugh v. MRO; Records Search Fee: Hollabaugh v. MRO 2

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 1, I discussed how prior sworn testimony saved a lawsuit from late challenges regarding expert certificates.

After a jury awarded over $1.12 million to an injured individual and spouse, the trial judge set aside the verdict by granting a Judgment Notwithstanding the Verdict (JNOV). However, the Court of Special Appeals reversed that decision and reinstated the complete jury award. This post breaks down how expert medical testimony connects systemic delay to preventable brain injury.

Factual Background

A patient experienced sudden right-side weakness, numbness, and grip failure on January 26, 2005. Recognizing signs of a transient ischemic attack (TIA) or mini-stroke, a primary care physician instructed the individual to go to the hospital right away. The primary doctor gave the family a note ordering an urgent “stroke work up”.

Upon arrival, an initial triage nurse noted the life-threatening risk, marked the patient as priority one, and attached the doctor’s note. However, a second triage nurse altered the routing form. This nurse lowered the priority rating to four and sent the individual to urgent care instead of the main emergency room.

In urgent care, an emergency physician failed to read the note and misdiagnosed the condition as carpal tunnel syndrome. The facility discharged the individual. Shortly after, a vigilant staff nurse realized the mistake, leading the facility to recall the patient.

The individual returned hours later for testing. The second attending doctor recommended hospital admission for complete evaluation. However, administrative delays prevented an official admission, and the facility discharged the individual after midnight. Later that afternoon, the individual suffered a catastrophic, disabling stroke.

Lawsuit

The family sued the hospital, the first emergency doctor, and the medical group. At trial, the jury awarded $1,123,000 in total damages. Afterwards, the trial judge overturned the verdict by granting a JNOV to the defense, ruling that the evidence failed to prove causation. The injured party promptly appealed.

Timeline of Key Events:

• Primary Visit: Primary care doctor orders urgent stroke workup, and the patient is sent immediately to the hospital.
• First ER Arrival: Initial nurse assigns Priority 1, but a second nurse downgrades the patient to Priority 4, routing them to urgent care.
• Urgent Care Evaluation: Emergency doctor misses TIA signs, diagnoses carpal tunnel syndrome, and discharges the patient home.
• Hospital Recall: Staff catches the error and recalls the patient hours later, but an incomplete workup occurs and no admission is made.
• Following Afternoon: Patient suffers a severe, permanent stroke. A lawsuit is filed, and the jury awards $1.123M.

Parties’ Arguments

The appeal focused entirely on whether the evidence showed a direct link between the medical delays and the ultimate harm.

• The Medical Providers’ Arguments: The hospital and doctor argued that the initial triage delay did not alter the outcome. They claimed two emergency doctors eventually evaluated the patient anyway. Additionally, the defense argued that the patient could not be admitted without authorization from a specific insurance doctor. Since that specific doctor was unavailable, the defense argued that admission was impossible during the first visit. Thus, they claimed the initial delay did not cause the stroke.
• The Injured Parties’ Arguments: The injured party argued that the initial downgrade prevented doctors from recognizing the medical emergency early. They presented expert witness testimony showing that proper routing would have led to immediate admission. Furthermore, their expert explained that standard inpatient care—such as flat bed rest, oxygen, IV fluids, and prompt surgery—would have prevented the stroke.

Court’s Ruling on Causation in Medical Malpractice

The Court of Special Appeals reversed the trial court’s JNOV and reinstated the full jury verdict. The court emphasized that a judge reviewing a JNOV must evaluate the evidence in the light most favorable to the non-moving party. In Maryland, a plaintiff only needs slight evidence rising above speculation to send a case to the jury.

Key Stages of Appellate Review:

1. Trial Court Action: The trial judge granted JNOV and canceled the $1.12M jury verdict.
2. Appellate Court Review: The appellate panel evaluated all trial evidence in the light most favorable to the injured party.
3. Key Findings on Appeal: Expert testimony established a greater than 50% chance of stroke prevention, the triage downgrade hid critical urgency from doctors, and conflicting evidence had to be resolved by the jury.
4. Final Legal Outcome: The appellate court reversed the JNOV and reinstated the full $1.123M verdict.

The appellate panel found that the medical expert provided a solid foundation for causation. The expert testified that any hospital following proper protocols would have admitted the patient right away. She also explained that basic steps like laying the patient flat, giving IV fluids, and performing a timely procedure had a greater than 50% chance of preventing the stroke.

Furthermore, the court rejected the defense claims regarding insurance restrictions. The expert testified that emergency doctors possessed the authority to admit acute neurological cases directly. The panel noted that when evidence conflicts, the jury holds the sole right to choose which witnesses to believe. Therefore, the trial court erred when it overturned the jury’s factual decision.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Causation in Medical Malpractice

This appellate ruling re-affirms the role of the jury in complex medical cases. Trial judges must not replace a jury’s evaluation of witness credibility with their own views. When an expert witness offers clear, sound testimony based on established medical facts, the jury holds full power to accept those opinions.

From a legal perspective, causation does not require absolute certainty. Instead, a plaintiff must prove that harm was more likely than not caused by the medical departure. Here, the expert clearly explained how early bed rest, hydration, and prompt surgical intervention would have protected blood flow to the brain. This logical medical chain provided exactly what the law requires.

Additionally, the decision prevents hospitals from hiding behind administrative complexity. A facility cannot excuse emergency delays by pointing to insurance approval rules when a patient faces a life-threatening TIA. The court recognized that emergency care standards override procedural obstacles. By reinstating the verdict, the court affirmed that negligent emergency delays carry real accountability.

You can read additional Blog posts on issues involving causation. These include:

• Expert Causation: Kaylor v. Arrisueno
• Causation Expert: Dackman v. Fisher
• Nurse Causation: Adventist v. Mattingly 2
• Paramedic Causation: Coit v. Nappi 2
• ER Causation: Estate of Newton v. Javid

Additionally, you can read verdict reports on other stroke cases:

• Stroke Misdiagnosis $70.8 Million
• Stroke Mismanagement $40 Million

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.

When a patient suffers a severe stroke due to missed opportunities in an emergency room, the ultimate search for accountability often turns on procedural rules long before a final verdict is reached. Under the Healthcare Malpractice Claims Act, a medical injury claim faces preliminary requirements in Maryland courts. Filings often live or die based on the initial paperwork. In the opinion at issue, the court examined whether trial testimony from a prior proceeding can remedy an otherwise brief expert report. This post is part one of a two-part series. It focuses on how pretrial evidence interacts with statutory requirements. Specifically, when a defense team attempts to throw out a case on the eve of trial.

Factual Background

A patient visited a primary care doctor on January 26, 2005, displaying signs of a potential mini-stroke. Recognizing the urgency, the doctor immediately directed the individual to a local hospital for a full stroke evaluation. They also provided a specific written note detailing this instruction. Upon arrival, an intake professional in the emergency room identified the situation as a top priority and marked the chart accordingly. However, during the subsequent triage process, a staff member altered the priority level to the lowest setting. They redirected the individual to an urgent care department.

In the urgent care section, an emergency medicine physician examined the individual without reviewing the primary care doctor’s note. The physician incorrectly diagnosed the condition as carpal tunnel syndrome and discharged the individual. Later that evening, a hospital employee noticed the error. Afterward, the medical providers called back the individual to the hospital for additional testing. Though they did preliminary scans, they did not finalize an admission due to delays in securing an attending physician. They discharged the individual early the next morning, only to suffer a massive, permanent stroke later that day. The CQE that was cured in the medical malpractice case discussed these shortcomings.

The injured party and their spouse filed suit against the medical provider, the emergency physician, and also the medical group. To comply with state law, the filing included an official CQE and a brief supporting report. The initial trial ended abruptly in an administrative mistrial due to severe winter weather, but not before the key medical expert witness provided full, detailed testimony under oath.

Parties’ Arguments

The second trial commenced more than six years after the lawsuit was initiated. Right before, the hospital filed a motion to dismiss the entire claim.

• The Medical Provider’s Position: The hospital argued that the court must dismiss the case because the expert report attached to the initial filing was legally deficient. The provider asserted that the brief report merely stated that the standards of care were violated. However, it did not provide a detailed explanation of what standard applied, how the staff breached it, or how the breach directly caused the injuries. Relying on strict interpretations of the statute, the defense maintained that a proper report is a mandatory condition precedent to lawsuit validity.
• The Injured Party’s Position: The plaintiff argued that the defense brought the motion far too late in the judicial process. Furthermore, they contended that the extensive sworn testimony provided by the expert during the first trial fully informed the defense of every technical detail regarding the alleged breach and causation.

Court’s Ruling on CQE Cured in Medical Malpractice

The circuit court initially denied the hospital’s motion to dismiss, finding that the defense had ample time over six years to understand the claims and prepare a proper defense. On appeal, the appellate court affirmed this denial.

The appellate court acknowledged that under established case law, an expert report must generally explain the standard of care and specific breaches to avoid dismissal. However, the court ruled that the unique circumstances of this case altered that requirement. Because the expert had already given detailed testimony in the first proceeding before the mistrial, the medical provider possessed every necessary detail well before the second trial began.

The court explained that the main purpose of the statutory certificate and report is to screen out non-meritorious claims early in litigation. The sworn mistrial testimony and the initial report effectively merged. Thus, the hospital had the functional equivalent of an exhaustive report. Rejecting the lawsuit on technical grounds under these specific conditions would create an absurd result. The defense already possessed all the factual disclosures the statute enforced.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on CQE Cured in Medical Malpractice

This decision upheld the practical purpose of the Healthcare Malpractice Claims Act without letting rigid formalism override justice. The legislative intent behind requiring a certificate and report is straightforward. The law aims to filter out frivolous claims before hospitals and doctors spend vast resources defending baseless lawsuits. The report acts as an early warning system that discloses the factual core of the allegations.

In this dispute, the defense did not suffer from any lack of notice. The medical provider had already cross-examined the expert under oath during four days of active trial. The defense knew the precise allegations, the specific standard of care, and the medical theories linking the triage error to the severe stroke. Dismissing a meritorious action on the eve of a second trial simply because the initial single-page attachment lacked descriptive prose would elevate form over substance.

The court recognized that when full disclosure actually occurs in the record, the preliminary screening objective of the law is completely satisfied. Accordingly, the CQE’s deficiency had been cured in this medical malpractice case.

Additional Blog Posts

You can read additional Blog posts on categories of Procedure and Expert Testimony, including the following HCADRO filing issues involving CQEs and reports:

• Identifying Defendant: Otto v. UPMC 2
• Related Specialty: Otto v. UPMC 1
• CQE & Report: Powell v. Wurm
• No Report: Wilcox v. Orellano
• Nurse CQE: Robinson v. Canton
• CQE Employees: Retina Group v. Crosetto
• CQE Extension Right: Dunham v. UMD 2
• CQE Agents: Dunham v. UMD
• CQE Extension: A.C. v. Kennedy
• CQE Teaching Experience: Jordan v. Elyassi’s
• HCADRO Refiling: Puppolo v. Adventist
• CQE Diagnosis: Canton Harbor v. Robinson 2

(Note: Stay tuned for Part 2 of this series It will analyze the court’s ruling on causation evidence.)

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.

Understanding foreign judgment enforcement and corporate standing rules is essential for judgment creditors and debtors. Below is an overview of the factual background, the arguments, the court’s ruling, and commentary.

Factual Background on Judgment Renewal

The dispute began when a District of Columbia professional law corporation obtained a money judgment against three individual defendants in the Superior Court of the District of Columbia in September 2012. Two months later, the law firm recorded the out-of-state judgment in the Circuit Court for Howard County, Maryland, where two of the judgment debtors lived.

Under Maryland law, a money judgment remains valid for 12 years. A judgment creditor may extend this period by filing a notice of renewal before the 12-year window expires.

On July 2, 2024, the creditor filed a timely notice of renewal in Maryland. Shortly after, the court clerk issued a notice of renewed judgment.

The debtors then moved to strike, stay, and vacate the renewed judgment. They pointed out that the District of Columbia had revoked the entity’s registration in September 2021 because it failed to file reports and pay fees. They also noted that the entity was not in good standing in Maryland due to an unfiled report. One debtor filed an affidavit stating she lived in Texas and had never resided at the Howard County address listed in the court filings.

In response to these motions, the creditor filed its missing reports and paid all outstanding fees in the District of Columbia. Consequently, the District of Columbia government restored the entity to active status. The creditor then opposed the debtors’ motions, showing it had achieved active standing. The circuit court denied the debtors’ motions to strike, stay, and vacate the judgment. The debtors then filed motions for reconsideration, raising additional challenges, but the circuit court denied those motions as well. The debtors appealed.

Parties’ Arguments

The Debtors’ Arguments

The debtors made several key points on appeal:

• Nullity of Action: They argued that a revoked entity is a non-entity. Therefore, any legal action taken while dissolved is a complete nullity.
• Lack of Good Standing in Maryland: They claimed that because the entity was not in good standing locally, state law prohibited it from maintaining a lawsuit.
• Allegations of Fraud: They contended that the entity obtained its corporate reinstatement fraudulently. They argued the law firm was no longer practicing law, its named partners were inactive or deceased, and it used an incorrect address.
• Personal Jurisdiction: The out-of-state debtor argued that local courts lacked personal jurisdiction over her because she lived in Texas.
• Statute of Limitations: The Texas resident also argued that Texas’s 10-year period for judgment enforcement should apply to her, rather than Maryland’s 12-year rule.

The Creditor’s Arguments

The entity countered with several points:

• Relation-Back Doctrine: Under District of Columbia corporate law, reinstatement relates back to the date of administrative dissolution. Thus, the entity acts as if the dissolution never occurred.
• Unforfeited Foreign Right: Although its local administrative standing had lapsed, the entity never forfeited its legal right to do business in the state.
• Separation of Entity and Owners: The debt collection activity was a valid corporate purpose. The status or death of individual partners did not extinguish the entity’s independent corporate existence.

The Court’s Ruling on Judgment Renewal

The Appellate Court of Maryland affirmed the trial court’s decision.

Case Summary Table

The court explained that home-state corporate law governs an entity’s internal status. Under District of Columbia law, corporate reinstatement operates retroactively. Once the entity resolved its administrative default, it restored its rights as if the dissolution had never occurred.

The court also addressed the local status argument. Maryland law limits lawsuit rights for foreign corporations that forfeit their right to do business. However, simple administrative non-compliance does not equal formal forfeiture. Because the entity never forfeited its business rights, it retained the ability to renew its judgment.

Additionally, the court dismissed the fraud allegations. It held that local courts cannot look behind a facially valid reinstatement certificate issued by another jurisdiction. The panel noted that collecting an outstanding judgment is a legitimate business activity. Therefore, changes in law practice operations or partner status do not erase corporate existence.

Finally, the court rejected the jurisdictional and choice-of-law arguments. Personal jurisdiction matters when a party initially records a foreign judgment, but it does not prevent a creditor from renewing an existing local record. Furthermore, once recorded under the Uniform Enforcement of Foreign Judgments Act, the debt became a local judgment. Consequently, local procedural timelines apply to all co-debtors, regardless of their state of residence.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Judgment Renewal

There are three key reasons supporting this outcome.

1. Retroactive Reinstated Standing Aligns with Corporate Law

First, administrative dissolution is primarily a revenue and record-keeping tool used by state regulators. It is not designed to give legal windfalls to judgment debtors. Corporate statutes across most jurisdictions—including the District of Columbia and Maryland—expressly state that reinstatement relates back to the effective date of dissolution.

If courts treated every act during a temporary administrative lapse as a permanent nullity, businesses would face chaotic disruption over minor administrative oversights. By allowing relation-back status, the court enforced the clear wording of corporate statutes. Because the plaintiff cured its administrative default promptly, the law properly treated the corporate entity as continuous.

“Under District of Columbia law… CHF’s reinstatement relates back to the effective date of CHF’s ‘administrative dissolution’… CHF was entitled to ‘resume carrying on its activities and affairs as if the administrative dissolution had never occurred.'” — Appellate Court of Maryland

2. Statutory Distinction Between Lack of Good Standing and Forfeiture

Second, the court distinguished between a temporary lack of good standing and formal business forfeiture. Maryland Code, Corporations and Associations Article § 7-301 restricts court access for foreign entities that forfeit their authority to operate.

However, failing to file an annual report does not automatically trigger total forfeiture. Extending the statutory bar to cover minor administrative lapses would misread the statute. The plaintiff never received a formal declaration of forfeiture. Therefore, the trial court correctly recognized that the entity maintained its legal capacity to protect its recorded assets.

3. Proper Application of the Foreign Judgments Act

Third, the court protected the integrity of foreign judgment enforcement. Under the Full Faith and Credit Clause and the Uniform Enforcement of Foreign Judgments Act, a properly recorded out-of-state judgment becomes a local judgment.

Once converted, local procedural rules govern enforcement duration. Accepting the debtor’s argument—that individual out-of-state residency changes the judgment’s lifespan—would create absurd results. A single judgment would expire at different times for different co-defendants. The court correctly preserved standard procedure by holding that local procedural timelines apply equally to all parties named in the judgment.

Ultimately, this ruling prevents debtors from using technicalities to avoid valid obligations. It confirms that corporate reinstatement cures procedural defaults and upholds long-established principles of finality in civil recovery.

You can read more Blog posts on issues involving Judgments.

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.

When a medical crisis occurs during transit, who bears the legal liability? The Maryland Court of Appeals tackled this crucial question in a major medical malpractice decision. The court examined whether a private, for-profit ambulance firm could claim statutory immunity for alleged negligence during a medical transfer.

The court ruled that private commercial companies cannot shield themselves using statutes designed for volunteer responders and public agencies. This decision clarifies the reach of statutory protections in transport cases.

Factual Background

A young child suffered severe breathing difficulties and congestion in late 2007. A local hospital in Talbot County evaluated the minor and also inserted an endotracheal breathing tube. Because the facility lacked the specialized equipment to treat intubated pediatric patients, doctors arranged an emergency air transfer. Accordingly, they planned to transport the patient to the pediatric intensive care unit at a major medical center in Baltimore.

A specialized flight team managed the helicopter transport. The team included a pediatric intensive care nurse, a flight paramedic, and a flight nurse. A licensed paramedic employed by a commercial transport company also joined the flight for orientation purposes. The employer operated ground transport under a contract with the medical center.

Shortly after takeoff, the patient experienced a life-threatening emergency. The patient’s heart rate and blood oxygen levels then dropped rapidly. The legal complaint alleged that the breathing tube dislodged and then blocked the airway. The flight crew searched for a pediatric air mask to restore breathing, but they could not find one on board.

The helicopter made an emergency landing at a nearby airport. The flight paramedic retrieved a mask from a storage compartment and reintubated the patient. The child survived the flight, but the lack of oxygen caused severe, permanent hypoxic brain damage. The injury left the child blind, deaf, and disabled.

Parties’ Arguments

The plaintiff filed a medical malpractice lawsuit alleging negligence. The lawsuit targeted the private transport company, asserting vicarious liability for the actions of its paramedic.

The defendant requested summary judgment based on two statutory defenses:

• The Good Samaritan Act (CJ § 5-603): The company claimed status as an “ambulance squad.” It also argued that an employer cannot be held liable if its employee holds personal immunity.
• The Fire and Rescue Act (CJ § 5-604): The company argued that it functioned as a private “rescue company.” It claimed broad protection from liability for acts performed during official duties.

The plaintiff countered that these immunity statutes protect public and volunteer entities, not commercial enterprises. The plaintiff noted that the employer could not hide behind employee protections without an independent legal basis.

Court’s Ruling on Commercial Ambulance Immunity

The trial court originally granted summary judgment to the commercial entity. The intermediate appellate court reversed that ruling, and the state’s highest court affirmed the reversal.

Summary of Key Holdings:

• Good Samaritan Act Scope: The court held that CJ § 5-603(b)(3) applies only to volunteer squads, not for-profit ambulance entities.
• Vicarious Immunity: The court ruled that an employee’s personal immunity does not automatically shield the employer under common law agency principles. The employer must establish an independent shield.
• Fire & Rescue Act Scope: The court determined that CJ § 5-604 excludes commercial companies by default unless the firm proves it functioned as a public first responder in that specific context.

The court evaluated the plain language and legislative history of both statutes. It determined that the Good Samaritan Act protects individual care providers and volunteer squads. The word “volunteer” modifies ambulance squads in the statute. Therefore, for-profit ambulance businesses cannot claim this defense.

The court also rejected the vicarious immunity argument. Under agency law, an agent’s personal immunity does not automatically transfer to the principal. The employer must show an independent legal basis for protection.

Finally, the court reviewed the Fire and Rescue Act. The court noted that this statute mimics sovereign immunity for public first responders. Commercial ambulance services operate for profit and also must maintain liability insurance by law. They cannot claim broad municipal immunity unless they prove they acted as a public first responder.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Commercial Ambulance Immunity

This decision was a major victory for patient safety and accountability. The court correctly limited public immunity defenses to their intended recipients. Allowing commercial entities to exploit statutes meant for municipal responders would have injured patients.

The decision is sound for several reasons:

1. Preserving Legislative Intent

The legislature created the Good Samaritan Act to encourage bystander aid and support volunteer fire and rescue groups. It created the Fire and Rescue Act to grant sovereign-like protection to public responders. Lawmakers never intended these statutes to shield private businesses from ordinary negligence.

2. Profit and Public Duty

For-profit transport firms choose to enter the healthcare market to make a profit. They calculate business risks, charge fees, and carry liability insurance. The law requires these companies to maintain commercial coverage precisely because they face ordinary civil liability. Shielding them under volunteer statutes would grant an unfair financial windfall at the expense of injured patients.

3. Accountable Care Standards

Commercial responders must maintain a high standard of care. Patients in transport are vulnerable and rely completely on the technical skills of the crew. Holding private companies liable for negligence ensures proper training and complete equipment checks before takeoff.

Why Commercial Firms Cannot Claim Municipal Immunity

Private companies cannot claim municipal responder immunity because municipal immunity originates from public sovereignty. State and local governments perform essential public duties funded by taxpayers. Municipal responders act for the public good rather than financial gain.

In contrast, private ambulance companies operate under private contracts. They can accept or refuse business, set prices, and manage risks through commercial insurance. Allowing a commercial enterprise to hide behind municipal immunity would then create an unfair imbalance. The company would gain private profits while avoiding standard legal liability.

This decision ensures that commercial medical transport providers remain accountable to their patients. When a private transport company fails to meet professional standards, vulnerable patients retain the legal right to seek fair compensation.

You can read other Blog posts on issues involving immunity, including:

• County Immunity: Coit v. Nappi 3
• Paramedic Immunity: Coit v. Nappi 1
• Suing Ambulance EMTs: Stracke v. Butler

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 a jury awarded the family over five million dollars, the appellate court vacated the verdict and ordered a new trial. Before the new trial began, the law firm ended its relationship with the primary handling attorney. The clients then discharged the original law firm and hired the primary attorney and outside lawyer. When the underlying case later settled, the former law firm sued to collect a percentage of the contingency fee.

Factual Background

The litigation started when an injured patient suffered a severe heart attack following cardiac surgery. The patient and his spouse hired the original law firm under a standard contingency fee agreement. The contract called for a forty percent fee upon any financial recovery.

For several years, the associate attorney managed the case at the original law firm. He handled preliminary motions, took depositions, and met frequently with the clients. As trial approached, the initial law firm brought in a seasoned trial lawyer to assist with the medical malpractice claims. Together, the two attorneys tried the case for three weeks. Consequently, the jury awarded a judgment exceeding five million dollars in favor of the injured patient.

However, the trial court verdict did not stand. The appellate court vacated the judgment due to evidentiary errors and remanded the case for a new trial. Before the retrial took place, the original law firm ended its relationship with the associate attorney.

Because of this split, the original law firm informed the clients that their primary lawyer was leaving. The clients received notice that they could stay with the firm or hire new counsel. Unhappy with losing their primary lawyer, the clients promptly discharged the original law firm. Instead, they chose to retain the associate attorney and the co-counsel under a new contingency fee agreement.

The new attorneys continued the legal work for eighteen months. During this period, outside events created leverage against the medical providers. Ultimately, the new attorneys secured a confidential financial settlement. The total contingent fee was placed in an escrow account. Soon after, the original law firm filed a lawsuit against the successor attorneys and the clients. The firm sought to recover legal fees based on quantum meruit for its years of work.

Parties’ Arguments

The original law firm argued that it was entitled to a major share of the legal fee. First, it pointed out that its staff handled almost five years of intense work. Its team conducted discovery, tried the case to a multi-million dollar verdict, and defended the appeal. Furthermore, expert witness testimony showed that ninety-five percent of the docket entries occurred while the initial firm held the file. Thus, the original firm argued that its efforts created the foundation for the ultimate settlement.

In contrast, the successor attorneys argued that the original firm deserved no fee at all. They claimed that the original firm effectively abandoned the clients by firing the primary lawyer. Therefore, they asserted that the firm breached its duty and forfeited any claim to compensation.

In addition, the successor attorneys argued that quantum meruit claims cannot be brought directly against successor counsel. They asserted that such claims can only be brought against former clients. Finally, they argued that if any fee was due, the court had to enforce internal fee-sharing agreements. They claimed these agreements entitled the individual attorneys to specific percentages of any fee generated by the case.

Court’s Ruling on Quantum Meruit in Medical Malpractice

The circuit court ruled in favor of the original law firm. First, the trial judge rejected the argument that the firm abandoned its clients. The judge noted that the firm offered to continue representation with qualified staff. Furthermore, the transition of the case file was smooth and caused no harm to the clients. Therefore, the original firm did not forfeit its right to reasonable fees.

Second, the trial judge held that the quantum meruit award must come directly out of the total contingency fee already collected. The court stated that the clients did not owe any extra money. After deducting out-of-pocket expenses, the trial court awarded sixty-five percent of the remaining fee to the original law firm.

On appeal, the appellate court affirmed the finding that the original firm was entitled to quantum meruit fees. The appellate court agreed that no abandonment occurred. Additionally, the court confirmed that a discharged law firm can recover directly from successor counsel who hold the recovered fee. The court explained that when a contingency is fulfilled, the original firm may seek a fair share based on its contribution.

However, the appellate court reversed the circuit court on the fee-sharing issue. The court held that when a client discharges a law firm, the original contingency contract ends. As a result, any internal fee-splitting agreement linked to that contract also ends. The trial judge had mistakenly factored the old fee-split percentages into the final math. Consequently, the appellate court vacated the award and remanded the case for the trial court to re-calculate the reasonable value of the legal services.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Quantum Meruit

This decision offers guidance for personal injury and medical malpractice lawyers in Maryland. First, it reinforces the rule that clients retain freedom to choose their legal counsel. When a client fires a law firm, the underlying contingency contract ceases to exist immediately.

Second, the ruling protects law firms from losing all compensation when an associate leaves with a major case. Even if a firm fires the primary lawyer, it does not automatically abandon the client. As long as the firm offers competent ongoing counsel and hands over the file smoothly, it preserves its right to fair pay.

Third, the case highlights the legal mechanics of quantum meruit recovery. Discharged attorneys do not have to double-tax the client. Instead, they can claim a fair portion of the fee earned by successor counsel once the case resolves successfully. Courts will evaluate factors like labor, skill, time spent, and overall contribution to the result.

Finally, departing lawyers must remember that internal fee-split arrangements usually die when the client contract terminates. Neither the old firm nor the departing lawyer can rely on pre-existing split percentages once a fresh retainer is signed. Moving forward, law firms and departing associates may want to establish written exit agreements. Doing so can prevent costly post-settlement court battles over legal fees.

You can read another Blog post on issues involving attorney’s fees: Fee-Sharing Agreement: Bennett v. Ashcraft and Quantum Meruit Arbitration: Slocumb v. Quick.

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.

This post provides an analysis of the Scott decision. It examines the factual background, the arguments raised by the parties, and the appellate court’s ruling. The post also gives a legal commentary. It explains why this case was decided correctly to safeguard plaintiffs’ statutory venue rights.

Factual Background on Plaintiff’s Choice of Venue in Medical Malpractice

The litigation arose from alleged medical negligence resulting in severe, irreversible brain damage. It happened to a minor child due to untreated hyperbilirubinemia and subsequent kernicterus. Kernicterus is a rare, preventable neurological condition. It is caused by extremely high levels of bilirubin accumulating in brain tissue. It then leads to permanent cognitive and physical impairment, profound developmental delays, and severe seizure disorders.

The minor plaintiff was born on June 3, 2001, at a county hospital in Calvert County, Maryland. The day after birth, an attending pediatrician practicing in Calvert County diagnosed the infant with jaundice . They then ordered bilirubin testing, which placed the child in the medium-to-high-risk category for kernicterus. The child was discharged home on June 5 with instructions for follow-up testing, which subsequently confirmed elevated high-risk bilirubin levels. On June 8, the child was readmitted to the county hospital. He received double phototherapy and was discharged the following day for home phototherapy. However, on June 9, the pediatrician advised discontinuing the home phototherapy and instructed the parents to return in three to four weeks. Despite multiple office visits in June and July during which the mother voiced significant clinical concerns, the child’s condition went improperly addressed.

Care Transferred to Baltimore

On July 11, 2001, the mother obtained a referral to specialists at a major medical center in Baltimore City. The pediatrician consulted by telephone with a specialist at the hospital, and the child was evaluated in Baltimore City on July 12 by a physician assistant and attending doctors. Following this evaluation, the hospital medical personnel advised the parents that the child was “normally developing and healthy” and discharged him without further evaluation, care, or diagnostic testing.

Regrettably, by August 21, 2001, the child’s condition had dramatically deteriorated, requiring emergency referral for seizure activity. Over subsequent months and years, the minor plaintiff readmitted to specialized pediatric facilities. This happened between 17 and 34 times per day for ongoing seizure management and severe developmental impairment. It also required round-the-clock lifelong care. On October 11, 2011, the mother, acted individually and as mother and next friend of her minor son. She filed a medical malpractice action in the Circuit Court for Baltimore City. It was against both the pediatrician and the hospital. She asserted that separate, independent acts of negligence by both healthcare providers substantially contributed to the minor child’s ultimate permanent brain damage.

The Parties’ Arguments on Plaintiff’s Choice of Venue in Medical Malpractice

Defendants’ Motions to Transfer (Seeking Calvert County Venue)

The pediatrician moved under Maryland Rule 2-327(c) to transfer the action to the Circuit Court for Calvert County on the grounds of forum non conveniens. The hospital subsequently joined in seeking the transfer. The defendants presented several core arguments in support of removal from Baltimore City:

• Foreign Plaintiffs Weight: The defendants argued that because the plaintiffs resided in Calvert County, their choice of Baltimore City as a forum was entitled to significantly less deference under established case law.
• Locus of Treatment & Volume of Care: The defendants emphasized that the primary pediatric care occurred in Calvert County over fifteen to sixteen visits, whereas the treatment provided by the hospital consisted of a single, brief visit in Baltimore City lasting only a few hours. They argued that thousands of medical records resided in Calvert County compared to a sparse medical record at the hospital.
• Convenience of Defendants and Witnesses: The pediatrician resided and practiced exclusively in Calvert County. To overcome the inconvenience to the Baltimore City entity, the hospital offered to waive its own inconvenience and guaranteed that it would produce its medical staff and treating physicians in Calvert County for trial.
• Public Interest & Jury Burden: The defendants argued that citizens of Baltimore City had no public interest in judging the quality of outpatient pediatric care rendered in Calvert County.

Plaintiffs’ Opposition (Maintaining Baltimore City Venue)

The plaintiffs vigorously opposed the transfer, establishing that:

• Proper Statutory Venue: Venue was unquestionably proper in Baltimore City under Maryland Code, Courts & Judicial Proceedings Article § 6-201(b). The hospital’s principal place of business was located in Baltimore City and a key negligent omission occurred there.
• Substantial Contact and Treatment History: The plaintiffs identified eighteen treating physicians and specialists in Baltimore City who had provided ongoing medical care to the child over eleven years, balancing out any witness convenience arguments.
• Equipoise of Factors: The plaintiffs asserted that when two independent tortfeasors commit distinct negligent acts in different jurisdictions contributing to a single indivisible injury, the factors supporting each venue cancel each other out. Consequently, the balance does not “weigh strongly” in favor of transfer.

The Court’s Ruling on Plaintiff’s Choice of Venue in Medical Malpractice

The Circuit Court for Baltimore City granted the defendants’ motions, transferring the case to Calvert County. The trial court reasoned that the plaintiffs did not reside in Baltimore City, that the majority of care leading to the injury occurred in Calvert County, and that the hospital was willing to accept the transfer to Calvert County.

The Court of Special Appeals of Maryland reversed the circuit court’s transfer order and remanded the case back to the Circuit Court for Baltimore City. The CSA emphasized the following key legal principles:

1. Plaintiff’s Choice of Forum and Deference: Under Maryland Rule 2-327(c), a motion to transfer for forum non conveniens should be granted only when the balance weighs strongly in favor of the moving party. While a foreign plaintiff’s choice receives somewhat less deference, that choice is still entitled to significant weight where the chosen forum has a substantial and meaningful connection to the litigation.
2. Meaningful Ties to Baltimore City: Unlike cases where a forum has zero connection to the dispute, Baltimore City was the principal place of business of the hospital defendant and the physical situs of one of the independent acts of alleged malpractice.

Additional Points

1. Irrelevance of Comparative Negligence or Care Volume: The trial court erred in focusing on the volume of visits in Calvert County versus Baltimore City. Under Maryland law, joint and several liability applies if both defendants’ negligence substantially caused the indivisible injury. It is immaterial which party saw the patient more often. If the hospital’s single failure to diagnose was a substantial factor in causing the harm, the hospital is fully liable.
2. Improper “Thumb on the Scale” by Co-Defendant: The appellate court held that the trial court committed an abuse of discretion. It allowed the hospital to “put its thumb on the scale” by volunteering to travel to Calvert County. A defendant cannot artificially manipulate the forum non conveniens balancing test by waiving its own local venue conveniences to force a transfer away from a plaintiff’s properly chosen forum.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Plaintiff’s Choice of Venue

There are three primary legal pillars that demonstrate why this case was decided correctly:

1. Preservation of Statutory Venue and Protection Against Strategic Defense Manipulation

Maryland law grants plaintiffs the initial privilege to choose among proper statutory venues. A plaintiff sues multiple independent corporate and individual defendants. He can pick a forum where one defendant maintains its principal place of business and where actionable negligence occurred. That choice is a statutory right. The trial court’s initial ruling allowed defense tactics to unfairly subvert this right. It allowed the institutional hospital defendant to “volunteer” its witnesses for travel to another county. Thus, the court effectively permitted two defendants to collude to strip away a venue that was completely lawful and convenient for the plaintiff. As the appellate court correctly observed, allowing a corporate defendant to waive its own locality advantages converts an objective convenience analysis into a subjective tactical maneuver.

2. Alignment with Joint and Several Liability Doctrines

The trial court relied on the “duration and number of visits” as a basis for transfer. This represented a flaw in tort doctrine analysis. Maryland is a traditional joint and several liability jurisdiction without comparative fault among joint tortfeasors. Whether a doctor saw a patient fifteen times or a hospital saw a patient once for two hours is legally irrelevant to liability. There is liability if both acts of negligence constituted a substantial proximate cause of the indivisible harm (kernicterus). The CSA clarified that trial judges should not conduct a pseudo-comparative fault or “quantified care” analysis at the preliminary motion stage. The CSA ensured that venue transfers remain tied to genuine witness convenience rather than judicial speculation about trial strategy.

3. Proper Application of the “Near Equipoise” Standard

The cornerstone of forum non conveniens jurisprudence is that the court will generally not overthrow a plaintiff’s selection of forum. The exception is when the balance of public and private convenience factors weighs strongly in favor of transfer. Where two independent torts occur in two different jurisdictions, witness locations, medical records, and local public interests are inherently divided between the two forums. Under such conditions, the convenience factors exist in near equipoise. When factors evenly balance, the legal tie breaks in favor of the plaintiff’s chosen forum. Reversing the transfer restored the proper legal burden back onto moving defendants.

Key Takeaways for Medical Malpractice Practitioners

• Multiple Defendants & Multiple Venues: If malpractice occurs in more than one county across independent healthcare providers, venue is proper in any county where a corporate defendant resides/conducts business or where an act of negligence took place.
• Defense Waivers Cannot Alter Balance: A co-defendant cannot manipulate the venue balancing test under Rule 2-327(c) by offering to waive its own local inconvenience.
• Focus on Substantial Causation: Do not let defense counsel minimize an institutional defendant’s liability during venue hearings based on the duration of care. A single negligent consultation can establish full joint and several liability.

Caveat: UM v. Kerrigan

Maryland courts continue to cite Scott v. Hawit. However, practitioners dealing with a motion to transfer based on forum non conveniens should consider the Court of Appeals (now Maryland Supreme Court) decision in UM v. Kerrigan. You can read the Blog post on it: Plaintiff’s Forum: UM v. Kerrigan. The court emphasized that Scott does not create a blanket rule keeping non-resident cases in Baltimore City simply because of subsequent medical care. It also reaffirmed that trial judges enjoy wide discretion in deciding transfer motions.

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 and Procedural History on Writ of Mandamus & Medical Malpractice

In large civil cases, the boundary between administrative efficiency and a trial judge’s judicial power can become sharply contested. This case presents an examination of judicial administration. Specifically, the limits of an administrative judge’s authority, and the extraordinary remedy of a writ of mandamus or prohibition. The controversy arose out of nearly 300 related medical malpractice lawsuits. The plaintiffs filed in the Circuit Court for Baltimore County against a hospital, doctor and practice group. There were several representative test cases. The assigned trial judge issued orders bifurcating the medical negligence claims. They separated from fraud and intentional tort claims to prevent severe jury prejudice. However, the administrative judge issued administrative orders striking the trial judge’s bifurcation orders. He denied bifurcation, and reassigned the cases to another judge. His order also referred to all future bifurcation motions in the circuit court. He would decide them exclusively as administrative judge.

Claims

The cases underlying this administrative conflict involved a massive cluster of complex tort actions. Nearly 300 individual lawsuits were against a treating doctor, operating at a regional medical center with the support of a cardiovascular medical practice. They claimed the defendants performed medically unnecessary cardiac catheterization procedures and put unnecessary cardiac stents into patients. The patient plaintiffs brought multi-count complaints. The causes of action included medical negligence, lack of informed consent, fraud by intentional misrepresentation, fraud by concealment, civil conspiracy, negligent hiring and supervision, and loss of consortium.

There were multiple allegations for both standard-of-care medical malpractice and intentional fraud. The petitioning defendants were the hospital, the doctor, and the medical group. They filed pretrial motions to bifurcate the proceedings under state procedural rules. Specifically, the petitioning defendants requested that the court separate Count I (medical negligence) for an initial, independent trial, while pushing the remaining fraud, conspiracy, and punitive liability counts back to a subsequent trial if necessary.

Bifurcation Ruling

The specially assigned trial judge held full hearings in open court on the bifurcation requests. In oral rulings and subsequent written opinions, the trial judge granted the motions to bifurcate in the test cases. The trial judge found that presenting evidence of intentional fraud, corporate conspiracy, and bad acts alongside evidence of standard medical practice would create a risk of unfair jury prejudice against the doctor and the hospital. Furthermore, the trial judge stated that a unified trial with all eleven counts would be unwieldy, running four to six weeks and suffering evidentiary interruptions. Conversely, a bifurcated trial focused solely on medical negligence would last approximately one week. If the jury determined that the doctor was not medically negligent, the necessity of trying the complex fraud and conspiracy claims would be completely eliminated, thereby saving time, money, and judicial resources.

Administrative Judge’s Reversal

Shortly after the trial judge issued these bifurcation rulings, the administrative judge of the circuit court got involved. Citing internal case flow management and judicial economy, the administrative judge issued an order vacating the trial judge’s bifurcation orders and denying the petitioning defendants’ requests for separate trials. In his administrative order, the administrative judge stated that bifurcation would cause additional trials to be held, adversely impacting the court’s overall calendar. He further determined that the clerk’s office had erred by routing bifurcation motions to the assigned trial judge rather than to the administrative judge. Consequently, the administrative judge said that all motions affecting case flow—including all bifurcation motions—must henceforth be decided solely by the administrative judge. Finally, the administrative judge struck the trial judge’s orders and reassigned the cases to another circuit court judge for trial.

In response to these administrative actions, the petitioning defendants filed a petition for a writ of mandamus and/or writ of prohibition in the state’s highest court, seeking immediate relief to overturn the administrative judge’s orders and reinstate the trial judge’s bifurcation rulings.

Parties’ Arguments on Writ of Mandamus & Medical Malpractice

Arguments of the Petitioning Defendants

The petitioning defendants argued that the administrative judge had committed an usurpation of judicial power. They maintained that the decision to bifurcate trial issues under state civil procedure is a core judicial function committed to the sound discretion of the trial judge presiding over the case. According to the petitioning defendants, an administrative judge possesses purely managerial authority over internal court workflow and docketing, but possesses no constitutional, statutory, or procedural authority to sit as an appellate court reviewing or reversing the substantive legal rulings of a coordinate trial judge.

Furthermore, the petitioning defendants claimed that waiting for a final judgment after a consolidated trial to appeal the ruling would provide a completely inadequate remedy. With nearly 300 pending stent cases subject to the administrative judge’s blanket directive, forcing the parties through weeks of unified, prejudicial trials would result in an irrevocable waste of public and private resources. The petitioning defendants emphasized that immediate extraordinary relief was required to protect the integrity of the judicial system, preserve the constitutional authority of circuit court trial judges, and guarantee due process to the parties.

Arguments of the Respondent Administrative Judge and Amici Plaintiffs

The respondent administrative judge, supported by amicus curiae briefs filed on behalf of the patient plaintiffs, claimed that extraordinary writ relief was inappropriate. The respondent argued that the state high court rarely grants writs of mandamus or prohibition and should not entertain what was effectively an immediate interlocutory appeal of a discretionary trial management decision.

Substantively, the administrative judge said that his actions fell within his broad authority under state court rules as circuit and county administrative judge. He argued that the question of bifurcation directly impacts case flow management, overall scheduling, and court resource allocation. Under state rules on differentiated case management and administrative supervision, the administrative judge said that he had full authority to control the court calendar, assign and reassign judges, and decide preliminary motions that materially affect the court’s overall trial docket. He maintained that denying bifurcation promoted judicial economy by preventing multiple piecemeal trials for the same parties.

Court’s Ruling and Opinions on Writ of Mandamus in Medical Malpractice

The state high court granted the petition for a writ of mandamus/prohibition, vacating the administrative judge’s orders, reinstating the trial judge’s bifurcation orders, and returning the underlying cases to their original procedural posture.

The Majority Opinion

The majority opinion delivered a critique of the administrative judge’s overreach, establishing clear boundaries between judicial decision-making and court administration.

Standard for Extraordinary Writs

The majority acknowledged that a writ of mandamus or prohibition is an extraordinary remedy granted only with great caution. However, citing precedents such as Philip Morris v. Angeletti, the court repeated that a prerogative writ is fully justified when judicial power has been usurped, when an official grossly exceeds their authority, or when immediate intervention is necessary to preserve the integrity of the judicial system. Here, it affected nearly 300 related cases. Waiting for post-trial appeals across hundreds of multi-week consolidated trials would cause irreparable waste of time and financial resources.

Constitutional Authority vs. Administrative Management

The majority said that under Article IV of the state constitution, judicial power is vested in the circuit courts. Every resident circuit court judge acting in a judicial capacity exercises the full jurisdiction of the court. When a trial judge is assigned to preside over a case, that judge possesses the inherent authority and discretion to make judicial rulings affecting the rights of litigants—including rulings on evidence, severance, and bifurcation under Rule 2-503(b).

Title 16 of the court rules grants an administrative judge broad authority over internal management, docket control, and judge assignments. However, it does not confer appellate jurisdiction over coordinate judges. The majority ruled that authority over internal court management is not equivalent to authority over substantive judicial decisions that happen to affect case flow. The administrative judge’s act of reviewing and vacating the trial judge’s orders constituted an unauthorized de facto appellate review. It usurped both trial court discretion and appellate court jurisdiction.

Protection of Litigant Rights

The majority said that Rule 2-503(b) explicitly bases bifurcation on two primary factors: convenience and the avoidance of unfair prejudice. The trial judge evaluated both factors, finding that a unified trial would cause severe prejudice to the doctor and hospital. In contrast, the administrative judge focused solely on calendar flow, completely ignoring the crucial factor of litigant prejudice. The court noted that administrative convenience can never override a trial judge’s duty to ensure a fair, impartial trial free from prejudicial evidence.

The Concurring Opinion

A concurring opinion agreed with the majority’s core holding. That is, that the administrative judge lacked authority to vacate the trial judge’s bifurcation orders. However, the concurring judge dissented from a narrow portion of the remedy. That was the reinstatement of the specific trial judge to the cases.

The concurring judge pointed out that state court rules explicitly empower an administrative judge to assign and reassign cases among trial judges in the ordinary course of court administration. Even though the administrative judge acted improperly regarding bifurcation, his baseline managerial authority to reassign cases to another judge remained valid. The concurring judge argued that the court should not restrict the administrative judge’s conceded reassignment power, noting that any newly assigned trial judge would have the inherent authority to review or maintain prior interlocutory rulings in their own discretion.

The Dissenting Opinion

A dissenting opinion argued against issuing the extraordinary writ, saying that the administrative judge had neither grossly abused his discretion nor usurped judicial power.

The dissenting judge said that state court rules mandate that administrative judges implement comprehensive case management plans. They also establish procedures for the prompt disposition of preliminary motions. The dissent added that the local circuit court’s written administrative procedures specifically designated the administrative judge to hear bifurcation motions. This was a practice also used in other judicial circuits. The administrative judge acted in good-faith reliance on administrative guidelines and procedural rules on case flow. Thus, the dissent said that his actions did not rise to the level of an egregious legal error justifying mandamus.

Furthermore, the dissent suggested that rather than issuing an extraordinary writ, the high court should use its rulemaking authority. They can clarify the precise division of responsibility between administrative judges and specially assigned trial judges regarding trial management motions.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Writ of Mandamus in Medical Malpractice

Evaluation of the different opinions in this case is a close call. The majority, concurring and dissent all made good points. The dissent pointed out that a writ of mandamus is an extraordinary remedy. It also added that the court has ability to give guidance to future such situations through rule making. That was certainly a wise suggestion. I tend to doubt to doubt that this was a prime example of the proper use of writs of mandamus.

The concurring opinion recognized that the administrative judge’s removal of the trial judge was within his discretion. That was separate from the bifurcation orders issue.

Whether a writ of mandamus was appropriate is debatable. However, the reversal of the administrative judge’s action on the bifurcation orders seems to be a wise one. Parties should be able to rely upon a trial judge’s ruling. It should not be reversed in a way that is not provided for in the rules.

Revision to Rules

It appears that the high court did clarify the rules on this issue in 2016 with the following changes:

1. Reorganization of Title 16 (2016):  In 2016, the Court of Appeals undertook a massive overhaul. It reorganized Title 16 of the Maryland Rules. This governs Court Administration. This was its 178th Rules Report. The Standing Committee on Rules of Practice and Procedure explicitly cited this case in the Committee Notes. The official note added to the updated Title 16 says a county administrative judge has broad authority to assign and reassign cases. However, they do not have the authority to countermand judicial decisions made by a judge to whom a case has been assigned.
2. Establishment of “Special Case Management Magistrates” for Complex Cases: The court refused to give individual administrative judges appellate-like authority over trial judges’ legal rulings. However, it did address the underlying administrative challenge. That is, managing massive, multi-case tort litigation through procedural rules. Under updated administrative provisions (such as Rule 16-302(d)), the Chief Judge can appoint a Case Management Special Magistrate. They can  oversee consolidated case management plans across multiple circuit courts for large-scale litigation. These plans allow for standardized discovery, coordinated scheduling, and streamlined motions practice before cases go to trial. They do not empower an administrative judge to unilaterally overrule an assigned trial judge’s discretionary rulings once a case is before them.

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 an opinion that protects a patient’s right to a jury trial, the court held that the existence of a medical provider-patient relationship triggers a duty of care that is not dictated solely by statutory detention powers.

Factual Background

On December 31, 2008, a 25-year-old patient arrived at the emergency room of the hospital. He was accompanied by his mother and sister. The patient had an extensive, documented history of severe mental illness, including diagnoses of bipolar disorder, schizoaffective disorder, and schizophrenia. The hospital was familiar with his psychiatric history. It had admitted him to their specialized psychiatric unit at least four times previously. The most recent was just six months prior.

Upon arrival, the patient complained of chest pains and heart palpitations. However, his mother alerted the nursing staff that he was undergoing a severe psychiatric crisis. She informed them that the patient had been non-compliant with his psychiatric medications for five days. He had not eaten, drank, or slept during that time. Also, he was actively excited, delusional, and hearing voices. Furthermore, a patient care technician overheard the mother begging staff to watch her son closely. She knew he would attempt to flee the emergency room if left unmonitored. This would be a key fact in the issue of the ER’s psychiatric duty of care.

The emergency room doctor evaluated the patient. They ruled out acute cardiac distress. Then they formally ordered an evaluation by a crisis counselor to initiate a psychiatric admission. While awaiting this evaluation, the patient grew increasingly restless, pacing his room and stepping out into the hallways. The staff administered a sedative, Ativan, to calm him down. Shortly thereafter, the patient went to the bathroom, ripped out his IV line, and emerged bleeding.

No Sitter

Despite these warning signs of escalating agitation and a clear flight risk, the hospital did not assign a “sitter.” That is, a hospital employee dedicated to monitoring a high-risk patient one-on-one. They claimed they were short-staffed. Instead, the charge nurse attempted to monitor him visually from the nurses’ station. At approximately 6:15 p.m., the patient slipped out of his room unnoticed. He exited through an alarmed rear door clad only in a hospital gown. Then he walked into the freezing winter night toward his home.

When the police—alerted by the hospital—spotted the patient on a bridge, the suspicious and delusional patient attempted to evade them. Believing in his psychotic state that “it wouldn’t be such a big deal,” he jumped over the side of the bridge. He plummeted 30 to 40 feet onto concrete, fracturing his pelvis, wrist, and both legs.

The plaintiff subsequently filed a medical malpractice lawsuit against the hospital in the Circuit Court for Baltimore City, alleging that the facility breached the standard of care by failing to properly monitor and secure a known, vulnerable psychiatric patient.

The Parties’ Arguments on ER Psychiatric Duty of Care

The Hospital’s Defense

The hospital moved for summary judgment, raising a multi-pronged defense. First, they argued a lack of proximate causation. They claimed that even if they had assigned a sitter, that employee would have lacked the physical authority to stop the patient from walking out. They asserted that the arrival of the police broke the chain of causation, and that the patient chose to leave because he felt “nothing was happening”. Additionally, the hospital argued that the plaintiff’s claims were barred under the doctrines of contributory negligence and assumption of risk, asserting that a reasonably prudent person would not jump off a bridge.

The Plaintiff’s Response

The plaintiff counter-argued that a standard medical malpractice duty of care arose directly from the established provider-patient relationship. Supported by emergency medicine and psychiatric expert witnesses, the plaintiff argued that the applicable standard of care required the hospital to place him in a safe and secure environment—via a one-on-one sitter, appropriate chemical sedation, or a locked room—until the crisis evaluation took place. The plaintiff noted that he had been easily redirected by verbal commands earlier in the day, meaning a sitter could have easily intervened without force. Furthermore, the plaintiff contended that under Maryland Health-General § 10-625, the hospital did have the emergency authority to involuntarily detain an individual who posed a clear danger to themselves.

The Court’s Ruling

The procedural path to the appellate court was unusual. On the second morning of the trial, after a jury had already been selected, the trial judge took action on his own initiative. Invoking Maryland Rule 2-502—a rule meant to allow judges to decide discrete legal questions that fall solely within the court’s province—the trial judge dismissed the case. The trial court ruled as a matter of law that because the patient was voluntarily present, the hospital lacked the legal authority to detain him against his will, and therefore owed him no duty to prevent him from leaving.

On appeal, the Court of Special Appeals reversed this ruling, remanding the case for a trial. The court clarified that the trial court committed two errors:

1. Misapplication of Duty vs. Scope: The appellate court held that because a provider-patient relationship indisputably existed, the hospital did owe the patient a legal duty of care. The true dispute centered on the nature and scope of that duty (i.e., the standard of care). That is a fact-dependent question driven by expert testimony and reserved entirely for the jury.
2. Procedural Violations of Rule 2-502: Rule 2-502 is reserved for purely legal, preliminary issues. For example, statutes of limitations or res judicata. By resolving disputed facts regarding the patient’s mental competency and standard of care requirements without giving the parties advance notice or an opportunity to argue, the trial court stripped the plaintiff of his right to a trial by jury.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on ER Psychiatric Duty of Care

The Court of Special Appeals’ ruling prevents medical facilities from using a patient’s “voluntary” admission status as a shield against operational negligence.

The trial court’s logic was flawed. It conflated a state-sanctioned involuntary hold with a medical provider’s foundational standard of care. A hospital’s duty to keep a patient safe does not suddenly vanish simply because formal, involuntary commitment paperwork has not been stamped. When an emergency department accepts a patient who is actively psychotic, delusional, and unmedicated, it assumes the responsibility to manage that vulnerability competently.

As the appellate court rightly highlighted, the hospital’s defense that a sitter could not “legally restrain” the patient is a red herring. The standard of care asserted by the plaintiff’s experts did not call for immediate physical combat. It called for basic, vigilant monitoring. A dedicated sitter would have noticed the patient moving toward a back exit. They could have used verbal redirection, called for immediate medical re-evaluation, or requested an adjustment in sedation.

Furthermore, the trial judge’s dismissal ignored the reality of medical emergency laws. Maryland law explicitly provides mechanisms to temporarily detain individuals experiencing severe psychiatric crises to prevent self-harm. By ruling that the hospital was powerless to act, the trial court created a dangerous incentive for emergency rooms to simply look the other way when high-risk psychiatric patients wander out into dangerous conditions.

ER Psychiatric Duty of Care Reaffirmed

By restoring this case to a jury, the appellate court reaffirmed a principle of Maryland medical malpractice law. When a hospital undertakes the treatment of a mentally incapacitated patient, it must exercise the degree of care and skill that a reasonably competent hospital would provide under similar circumstances. Fact-finding belongs to the jury, and this ruling ensures that vulnerable patients receive their day in court. This does not mean that the plaintiff wins. merely, that he got to go to the jury.

The trial court docket reveals that this case was dismissed on remand. This likely means that the parties reached a settlement.

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 underpinnings of this litigation began in August 2020.  A nine-year-old child had a historical diagnosis of chronic constipation. He suffered an episode of acute abdominal pain and advanced bowel symptoms. On August 28, 2020, the child went to an urgent care pediatric facility. The attending doctor performed a physical evaluation and administered an enema. The child was discharged that same evening despite having not passed a bowel movement. Tragically, the next morning, the child collapsed at home, became unresponsive, and suffered a severe cardiac arrest alongside gastrointestinal bleeding. The child passed away on August 30, 2020, from complications relating to a severe bowel obstruction.

Nearly three years later, on August 16, 2023, the plaintiff mother initiated a medical malpractice claim. She filed it with the Maryland Healthcare Alternative Dispute Resolution Office (HCADRO). It targeted the attending doctor and the operating corporate medical entities. On that very same day, the plaintiff mother formally waived arbitration to clear the path for circuit court litigation. Following statutory waiver timelines, the plaintiff mother filed her formal complaint. It was in the Circuit Court for Prince George’s County on September 22, 2023. The complaint enumerated causes of action for negligence, wrongful death, and a survival action. It explicitly named the child’s father as a “use plaintiff” within the pleadings. The issue became the statute of limitations for the use plaintiff’s claim.

Use Plaintiff

The filing plaintiff served the use plaintiff father with the complaint and the mandatory statutory notice on September 26, 2023. This was less than a month after the true three-year anniversary of the child’s tragic passing. The use plaintiff father attempted to file a formal motion to intervene. He filed it at the circuit court clerk’s office on October 19, 2023. 

However, the court clerk refused the submission, providing a case summary that mistakenly indicated he was already an active plaintiff in the action under the same legal representation as the mother. Following direct communications with the mother’s counsel, who explicitly clarified that he did not represent the father and that formal intervention remained mandatory, the use plaintiff father retained separate counsel and formally filed a Motion to Intervene on June 7, 2024. Both the plaintiff mother and the defendant doctor filed timely oppositions, arguing that the law had already extinguished the father’s right to participate. On February 11, 2025, the circuit court denied the father’s motion as untimely, paving the way for appellate review.

The Parties’ Arguments on Use Plaintiff Statute of Limitations

On appeal, the use plaintiff father admitted that his formal intervention fell outside the strict temporal constraints of Maryland Rule 15-1001. However, he argued that a plain language reading of the rule caused a fundamentally absurd and unfair result. He noted that because the HCADRO statute allows a primary claimant 60 days post-arbitration waiver to file a complaint in circuit court, a primary plaintiff can routinely and legally serve a use plaintiff well after the three-year statute of limitations has run. He asserted that this dynamic effectively “iced out” secondary beneficiaries before they were ever given a realistic opportunity to act after receiving formal notice. To remedy this tension, the use plaintiff father urged the court to apply the relation back doctrine, which would theoretically tie the date of his intervention back to the mother’s timely initial filing before the HCADRO.

Conversely, the plaintiff mother and the defendant doctor countered that the plain language of Maryland Rule 15-1001 is unambiguous and absolute. They emphasized that the rule clearly states that any individual who fails to file a complaint or a motion to intervene before the statutory deadline is barred from participating in the action or claiming a recovery. They argued that the three-year window acts as a substantive condition precedent to maintaining a lawsuit, meaning that a failure to meet it permanently extinguishes the underlying right to sue rather than merely blocking a procedural remedy. Furthermore, the defendants contended that applying the relation back doctrine would impermissibly expand their liability by “pyramiding” separate emotional and mental anguish damages after the statutory limitations period had closed.

The Court’s Ruling

The Appellate Court of Maryland affirmed the circuit court’s decision to deny the intervention. The court conducted a plain text analysis of Maryland Rule 15-1001(e)(2). It concluded that the rule’s mandate is absolute. An individual who fails to file a complaint or motion to intervene by the statutory deadline may not participate in the action or recover damages. The court made clear that even though the statutory notice framework requires a use plaintiff to respond within 30 days of service, that window is bounded by the phrase “no later than the earlier of” the statutory deadline or the served notice deadline. Thus, if the statutory deadline passes before service occurs, the right to intervene is lost under a plain reading.

The court rejected the father’s invocation of the relation back doctrine. The court highlighted Maryland precedent establishing that the three-year limitation period in wrongful death actions is not a mere statute of limitations. It is a substantive condition precedent. 

Because a condition precedent is an essential element attached to the right to sue, its expiration extinguishes the liability. Therefore, the court held that the relation back doctrine is incapable of reviving a right that has ceased to exist. Additionally, the court noted that even if the deadline were a standard statute of limitations, the relation back doctrine is restricted to situations where an additional party merely shares in an existing pool of damages. Because wrongful death claims allow individual beneficiaries to claim distinct damages for mental anguish and emotional suffering, introducing a new plaintiff would “pyramid” the doctor’s potential liability, creating unfair prejudice after the limitations period expired.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Use Plaintiff Statute of Limitations

There are not many reported opinions involving use plaintiffs. Many use plaintiffs are estranged family members whose claims have questionable value because of their distance from the deceased. In those instances, after the filing plaintiff gives notice, at some point after the use plaintiff fails to participate, the active parties seek summary judgment on the use plaintiff’s claim. This is the course many use plaintiff’s claims follow.

This case was different. While the outcome of this case feels undeniably harsh to a grieving father who faced confusing administrative pushback from a court clerk, the Appellate Court’s ruling is legally sound. As the court stated, the use plaintiff father was never legally dependent on the actions or timing of the primary plaintiff mother. Under Maryland law, any eligible beneficiary possesses an independent, equal right to file their own statement of claim or lawsuit within three years of a tragedy. If multiple beneficiaries file separate claims, the court simply consolidates them to satisfy the “one action rule”. 

The clear language of the rule allows the exact situation that happened in this case. By waiting for another family member to take the lead, a use plaintiff assumes an operational risk. Their filing might occur at the tail-end of the limitations window. This can make the resulting notice beyond the statute of limitations deadline for the use plaintiff to join.

Amend the Rule?

The court’s job was to apply the rule, and it did. Should the General Assembly amend the rule? Perhaps. There may be a solution that provides for the filing plaintiff to give prompt notice. Then the use plaintiff promptly files, such that there is not inordinate delay for the lawsuit. For now, the law continues to be clear. Use plainitffs must be aware that the outcome in this case is a possible one.

You can read other Blog posts on cases involving Statute of Limitations 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 on Medical Malpractice Offered Care: Negligence Versus Informed Consent

This case arose from a medical malpractice birth injury action filed in the Circuit Court for Baltimore City. The plaintiff was a minor acting through his parents. He alleged that the defendant hospital’s labor and delivery team negligently failed to perform a timely Caesarian section. This delay, the plaintiff contended, caused severe oxygen deprivation, resulting in cerebral palsy (CP), brain damage, and other developmental disorders.

The mother initially attempted a natural home birth with a registered nurse-midwife. After a prolonged labor and obstructed labor, the midwife administered intramuscular injections of Pitocin. She also applied fundal pressure. Realizing the labor was failing, the midwife called an ambulance.

Upon arrival, the hospital’s treating doctors evaluated the mother. They determined to do an “urgent”—but not immediate “emergency”—C-section. The fetal heart monitor indicated the baby was still adequately receiving oxygen. For an urgent C-section, the standard practice is to perform blood testing before administering spinal or epidural anesthesia, which is the safest approach. The hospital staff alleged that the mother was highly uncooperative, combative, and resisted care. This delayed the collection of sufficient blood samples.

Ultimately, after blood results returned and the providers gave anesthesia, they performed the C-section, and the child delivered in poor condition. The plaintiff’s lawsuit rested on a theory of general negligence, asserting that the medical team should have recognized signs of fetal distress and converted the procedure into an emergency C-section, which utilizes rapid general anesthesia rather than waiting for blood work.

Trial

During the two-week trial, a central point of contention was whether the plaintiff was ever “offered” general anesthesia. The plaintiff’s expert witnesses testified that the medical records showed the option was never given to the mother. Moreover, the mother explicitly testified that she was never granted a choice. The hospital repeatedly objected to this line of questioning, arguing that the plaintiff had never filed an informed consent claim. The trial court overruled the objections, and following a $55 million jury verdict, the hospital appealed the admission of this evidence.

The Parties’ Arguments on Appeal – Medical Malpractice Offered Care: Negligence Versus Informed Consent

The Defendant Hospital’s Position

The hospital contended that the trial court committed an abuse of discretion by allowing the plaintiff to introduce evidence that the mother was never offered general anesthesia. They argued that under Maryland law, any allegation that a physician failed to explain a procedure, discuss alternatives, or offer choices belongs within a separate count for a lack of informed consent.

Because the plaintiff only pled general medical negligence, the hospital argued that injecting an “option” or “choice” framework into the trial was irrelevant and prejudicial. It allowed the plaintiff’s counsel to argue during closing statements that a “reasonable mother” would have chosen general anesthesia to save her baby, thereby distracting the jury from the actual technical standard of care governing the doctors’ actions.

The Plaintiff’s Position

The plaintiff argued that the trial court’s evidentiary ruling was proper. They asserted that the failure to offer a treatment required by the standard of care constitutes ordinary medical malpractice, not an informed consent issue.

Furthermore, the plaintiff maintained that the evidence was relevant to rebut the hospital’s defense strategy. The hospital had spent considerable energy painting the mother as combative and blaming her resistance for the timeline delays. The plaintiff argued that showing the hospital never even offered the faster option of general anesthesia was necessary to prove that the delay was caused by systemic hospital inefficiency, rather than any refusal or lack of cooperation on the part of the mother.

The Court’s Ruling on Offered Care & Negligence Versus Informed Consent

The Court of Special Appeals agreed with the hospital. It held that the trial court abused its discretion in admitting the evidence that the hospital did not offer the mother general anesthesia. To provide clear guidance for the trial court on remand, the appellate court outlined the boundaries separating medical negligence from informed consent under Maryland law.

The court emphasized the foundational principle established in Sard v. Hardy: informed consent requires a physician to explain a proposed treatment, disclose material risks, and explain available alternatives so a patient can make an intelligent choice. However, the law is settled that a breach of informed consent must be pled as a separate count. Without an informed consent claim in the complaint, evidence regarding what a patient was or was not offered is irrelevant and carries a potential to confuse the jury.

The court highlighted that the plaintiff’s core theory was that the medical team should have executed an emergency C-section. Under Maryland law:

• The Emergency Exception: Medical emergencies suspend the duty to obtain informed consent, where gravity and urgency make it impractical.
• The Malpractice Metric: If an emergency C-section was required by the standard of care, the doctors had an absolute duty to immediately administer general anesthesia and deliver the child. The patient’s input or “choice” does not factor into that urgent clinical directive.

Irrelevance

Therefore, the question of whether the doctors explicitly offered the mother general anesthesia had no legal relevance to whether they breached the standard of medical care. By allowing the plaintiff’s counsel to hammer home the lack of an “offered option” during closing arguments—asking the jury what a “reasonable mother” would do—the trial court improperly permitted the plaintiff to blend an unpled informed consent theory into a general malpractice case.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Medical Malpractice Offered Care: Negligence Versus Informed Consent

The appellate court’s discussion of pleading rules with respect to negligence and informed consent is legally sound. However, the specific facts of this case show how messy these concepts can become in the heat of a trial.

First, there is a compelling argument that the plaintiff’s line of questioning was logically relevant to the defense’s narrative. The hospital’s defense regarding the delay focused on the mother being uncooperative and resisting care. Specifically, the hospital claimed that the patient did not want a C-section. In a trial dynamic, if a hospital asserts that a patient refused a procedure, the court should permit the plaintiff to show that the medical staff never offered the procedure.

Second, when evaluating an emergency medical scenario, distinguishing between “offering a treatment” and “performing a treatment” quickly devolves semantics. In an emergency C-section context, a doctor does not sit down with a clipboard to offer choices. They inform the patient of what must happen immediately to save a life. Asking a witness if general anesthesia was “offered” is structurally identical to asking whether the doctors “recognized the need for and prepared to execute” an emergency intervention.

Be Careful With Language Choice

These are unique, overlapping factual layers. Thus, this case is ultimately not the cleanest or best opinion for a definitive discussion on the separation of negligence and informed consent. In a standard elective procedure case, the line can be bright. The doctor messed up the surgery (negligence). Alternatively, they failed to warn the patient of the risks beforehand (informed consent). In a chaotic labor and delivery room, seconds dictate lifelong neurological outcomes. The failure to perform a rapid procedure and the failure to tell the patient you are doing it happen simultaneously.

The court used this case to reinforce strict pleading boundaries. However, practitioners should use it to carefully review the language they choose to prove claims.

You can read other Blog posts on issues of informed consent and other causes of action:

• Informed Consent: Street v. UCMC 3
• Informed Consent Expert: Shannon v. Fusco 1

If you believe your child suffered a preventable birth injury due to medical mismanagement or a failure to properly execute emergency procedures in a hospital, contact us today for a comprehensive evaluation of your legal rights.

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.

This post is Part 1 of a series looking at this decision. In this first post, I focus on the admissibility of non-party medical negligence in a complete denial of liability defense.

Factual Background on Nonparty Cause of Medical Malpractice

The medical malpractice action started from a home birth attempt. It was difficult before the mother transferred to a major medical institution. The mother was ten days overdue with her first child. She initially elected to undergo a natural birth at home. It was under the supervision of a private registered nurse-midwife and a labor coach. There was prolonged labor. It lasted 14.5 hours in the first stage and and also an additional five hours in the second stage. Complicating the delivery, the baby was in an occiput posterior position. The baby was facing forward rather than toward the mother’s spine. This frequently impedes progress through the birth canal.

In an effort to expedite the delivery at home, the midwife then performed several highly controversial medical interventions:

• Fundal Pressure: The midwife applied forceful manual pressure to the mother’s abdomen two or three times to push the child through the birth canal.
• Pitocin Injections: The midwife administered multiple intramuscular injections of Pitocin. It is a hormone to increase the strength and frequency of contractions. This also was in a home setting where there was no fetal heart rate monitoring.
• Premature Episiotomy: The midwife performed an episiotomy to enlarge the vaginal opening. This was while the baby was only at a +1 station. This was long before the baby’s head was crowning.
• Alternative Bacterial Treatment: Rather than administering standard IV antibiotics for the mother’s positive Group B Streptococcus status, the midwife instructed her to use a probiotic treatment.

Hospital

Realizing the delivery was failing, the midwife sutured the episiotomy and called an ambulance. The mother arrived at the hospital as an unknown patient at 3:30 a.m. Hospital doctors determined that a vaginal delivery was impossible due to cephalopelvic disproportion. This means the baby’s head could not pass through the pelvic area. They ordered an urgent Caesarean section. To perform the surgery safely via spinal or epidural anesthesia, the hospital ordered mandatory “stat” blood test. This was to check the mother’s platelet count and blood type.

The hospital encountered severe delays in obtaining these blood samples. It alleged that the mother was highly uncooperative, combative, and actively resisted care by removing medical devices and shouting at medical providers. After blood tests were successfully re-ordered and evaluated, the mother was taken to the operating room, and the baby was delivered at 5:40 a.m. in poor condition. The child now suffers from permanent cerebral palsy (CP), developmental delays, and other severe disorders.

The plaintiff filed suit against the hospital, saying that its medical team negligently delayed performing the Caesarean section. The plaintiff asserted that the standard of care required a delivery by 4:15 a.m. and that the hospital failed to recognize ominous signs of fetal distress on the heart monitor. Following a two-week trial, a Baltimore City jury returned a verdict, awarding the plaintiff $4 million for lost wages, $25 million for future medical expenses, and $26 million for non-economic damages, culminating in a $55 million judgment. The trial court subsequently reduced the non-economic damages to $680,000 under Maryland’s statutory cap and adjusted lost wages, leaving the medical expenses intact. Both parties filed cross-appeals.

The Parties’ Arguments on Nonparty Cause of Medical Malpractice

The primary issue on cross-appeal focused on a pre-trial motion in limine filed by the plaintiff. It sought to entirely exclude any testimony regarding the professional standard of care applicable to nurse-midwives or any assertion that the midwife breached that standard.

The Hospital’s Arguments

The hospital opposed the motion, arguing that the midwife’s gross deviation from the standard of care was central to its defense. The hospital asserted a complete denial of liability, contending that it was not negligent and did not cause the child’s brain damage. Instead, the hospital argued that the injuries were entirely and irreversibly inflicted hours prior to the patient’s arrival at the hospital due to the midwife’s actions.

To support its position, the hospital pointed to:

1. Expert Witness Deposition: Expert testimony stating that the midwife’s unmonitored, massive intramuscular injections of Pitocin caused “uterine tetany” (continuous contractions without relaxation), completely cutting off the oxygen supply to the fetus and causing the ultimate neurological damage.
2. Physical Trauma: Expert evidence showing that the baby suffered a cephalic hematoma due to physical trauma from the midwife trying to force the baby’s head through a narrow pelvis using fundal pressure during a five-hour second-stage labor.
3. State Board Actions: An emergency order from the Maryland Board of Nursing that had suspended the midwife’s license for violating the Nurse Practice Act during her treatment of the mother.

The Plaintiff’s Arguments

The plaintiff argued that under Maryland’s system of joint and several liability, any negligence by a non-party was completely irrelevant to whether the hospital’s independent delays also contributed to the injury. The plaintiff maintained that if the jury found the hospital was even a partial cause of the injury, the hospital would be fully liable. Therefore, introducing standard of care violations of a non-party would only serve to unfairly prejudice the plaintiff, confuse the jurors, and waste time by putting an “empty chair” on trial.

The Court’s Ruling on Nonparty Cause of Medical Malpractice

The trial court originally granted the plaintiff’s motion in limine. It forbid the hospital from using words like “negligence” or “deviation from the standard of care” when describing the midwife’s interventions. It restricted the hospital to introducing only the raw physical facts of what the midwife did and how the hospital staff reacted.

The Court of Special Appeals reversed the judgment. It remanded the case for a brand-new trial, holding that the trial court committed an abuse of discretion that denied the hospital a fair trial.

1. Issue Preservation and Waiver

The court first dismissed the plaintiff’s procedural argument that the hospital had waived the issue by failing to repeatedly proffer the excluded evidence during the trial. The appellate court said that when a trial judge makes an explicit, unconditional final ruling on a motion in limine to exclude evidence, the proponent is not required to disrupt the trial with futile offers of proof to preserve the issue for appeal.

2. Relevancy of a Non-Party’s Negligence

The court addressed a novel question in Maryland. Is evidence of a non-party’s professional negligence relevant when a defendant asserts a complete denial of liability? The court answered with a yes. It ruled that negligent medical treatment is fundamentally more likely to cause severe trauma than non-negligent, standard care.  The trial court stripped away the context of the midwife’s breach of care. It left a “logical hiatus” in the narrative presented to the jury.

“With no one allowed to show what part the [non-party’s] conduct played, the jury would be left to wonder whether anyone other than the defendant could have caused [the] plaintiff’s injuries.” 

3. Contributory vs. Comparative Negligence Context

The court rejected the plaintiff’s argument that “empty chair” defenses are only appropriate in states with comparative negligence systems. That’s where fault is apportioned among tortfeasors. The court explained that when a defendant seeks complete exoneration on the grounds of sole proximate causation, the underlying tort system (comparative or contributory) is irrelevant. If a non-party’s negligence is the 100% sole cause of an injury, the defendant cannot be “a” cause of the injury. This means liability never attaches to the defendant in the first place.

4. The Ruling Was Not Harmless Error

The appellate court specifically emphasized that the error was prejudicial. The plaintiff actively exploited the trial court’s restrictive ruling. During the trial, the plaintiff’s counsel and experts suggested to the jury that the midwife’s actions were standard, benign, and completely appropriate. They portrayed her as an experienced professional whose methods were just “how midwives practice”. The trial court barred the hospital from demonstrating that these methods were actually dangerous, illegal, and flagrant standard of care violations. Thus, the evidence gave the jury a one-sided picture of the facts.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Nonparty Cause of Medical Malpractice

Defendants in medical malpractice cases rarely admit their errors. It is amazing that in nearly every case, defendant doctors can find some “expert” doctor to state under oath that the defendant did not commit malpractice. You would think that there is never any malpractice being committed. However, those same defendant doctors agree to large settlements in a high percentage of cases.

That defense testimony often involves blaming a nonparty for solely causing the injury. This can be frustrating for plaintiffs. The defendants do not bring those other actors into the case as parties. That would allow those actors to defend themselves. As a result, the plaintiffs are then forced to take that role.

These concerns are weighed against the important principle that juries should generally be given a complete of picture of what happened in a case. Of course, this is subject to rules of evidence that prevent irrelevancy and prejudice. However, when it comes to who caused an injury at issue, both parties should be allowed to put on their expert cases.

Here, the trial court had precluded the defense from showing that the actual sole cause of the baby’s injury was the midwife. That left the jury without any way to assess the actions of the midwife that preceded the hospital’s involvement.

Plaintiffs can be frustrated when such evidence is a weak attempt to evade responsibility. However, the answer is for plaintiffs to demonstrate that weakness, not to prevent the defense from putting on the expert supported evidence.

Notes

The docket shows that the case was closed out several months after returning to the trial court. That means that the parties likely settled the case.

You can also read other Blog posts on cases with causation issues., and specifically involving nonparty malpractice:

• Nonparty Malpractice: American v. Reiss 1
• Verdict Sheet Nonparty Malpractice: American v. Reiss 2
• Intervening & Superseding Negligence: Copsey v. Park
• Settlement Admissibility: Glory Days v. Fletcher
• Subsequent Negligence: Browne v. State Farm

Stay tuned for Part 2 of this series. I will then cover the remainder of the court’s opinion. It focused on the distinctions between ordinary medical malpractice claims and unpled informed consent theories. Specifically regarding the utilization of general anesthesia.

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.

Medical malpractice litigation often involves complex objective data, from electronic medical records to advanced diagnostic imaging. When a catastrophic surgical complication occurs, both sides search for pieces of physical or radiological evidence that can vindicate their theory of the case. However, just because a piece of medical data exists does not mean a witness has a legal right to introduce it to a jury.

In Part 1, I explored how the defense “opened the door” to letting the jury know the defendant doctor lacked board certification. They did so by extensive credential-bolstering.

Background on Fact Witness Evidence: The Battle Over the Aorta Sizing

As detailed in my previous post, the plaintiff suffered catastrophic, life-altering injuries, including permanent paralysis from the waist down. This followed a botched aortobifemoral bypass surgery. The core dispute that went before the Harford County jury came down to a question of anatomy and millimeter measurements.

The plaintiff’s primary theory of negligence was that the surgical team committed a critical error. This was when they selected a 16×8 mm synthetic graft.  She presented evidence showing that her native abdominal aorta was only 7–8 mm in diameter. This meant the large graft choice created a severe, dangerous size mismatch. That caused her blood vessels to shred and hemorrage.

The defense rejected this narrative.  The doctor maintained that the patient’s aorta actually measured 14 mm in diameter, which would have made the 16×8 mm graft appropriate and anatomically sound.

The doctor, a vascular surgeon, sought to break this deadlock and prove his measurements were correct. He tried to introduce a chest CT scan of the patient. Crucially, this specific CT scan was captured during an entirely separate, unrelated hospital visit. The doctor proffered that looking at the objective calibration markers on this specific chest image can calculate the true size of the patient’s abdominal aorta.

The trial judge blocked the defense from using this imaging. Following the jury’s multi-million dollar verdict for the plaintiff in the trial, the intermediate appellate court reversed the trial judge, ruling that excluding the CT scan was a reversible error. The plaintiff then appealed the issue to the state’s highest court.

The Parties’ Arguments on Fact Witness Evidence: Relevancy vs. Personal Knowledge

The legal battle over the diagnostic scan forced both sides to clash over two foundational building blocks of evidence law: what makes a document “relevant,” and what gives a witness the legal right to talk about it?

The Defendant’s Argument: Crucial Objective Evidence

The doctor argued that because the primary battleground of the trial was the actual physical size of the patient’s aorta, a diagnostic scan capable of measuring that aorta was relevant under Maryland Rule 5-401.

The defense contended that even though the doctor was testifying exclusively as a fact witness and not an expert, he should be allowed to look at the CT scan on the witness stand, identify the aorta, and compare it to the calibration on the image. The defense warned that if physicians are banned from explaining objective factual images simply because they didn’t review them during treatment, they would be stripped of the ability to properly defend themselves against negligence claims.

The Plaintiff’s Argument: A Total Lack of Personal Knowledge

The plaintiff’s legal team countered that the scope of a fact witness’s testimony is strictly confined to what they actually saw, heard, and did during the active treatment window.

The plaintiff pointed out in the trial record: the doctor had never looked at, reviewed, or relied upon this specific chest CT scan while making medical decisions or operating on the patient. In fact, the doctor did not even know the scan existed at the time of the alleged malpractice. Therefore, the plaintiff argued, the doctor possessed no personal knowledge regarding the scan, rendering any testimony he might give about it legally inadmissible.

The Court’s Ruling on Fact Witness Evidence: Fact Witnesses are Tethered to Personal Knowledge

The Court of Appeals ultimately reversed the intermediate appellate court and ruled that the trial judge acted within his discretion when he prohibited the doctor from testifying about the diagnostic scan.

The court first clarified that the plaintiff’s definition of “relevancy” was a bit too narrow. Under Maryland Rule 5-401, any evidence that has a tendency to make a fact of consequence more or less probable is relevant. The actual size of the patient’s aorta was the central issue of the lawsuit. Thus, the scan itself could technically be deemed relevant if properly introduced.

However, the court noted that establishing relevancy is merely the first step of the evidentiary hurdle. A party must still have a legally qualified witness on the stand to identify, interpret, and explain that relevant evidence to a jury.

The court emphasized the strict boundaries governing fact witnesses in professional malpractice actions:

Witness Testimony Criteria

The court reviewed the record. It found that none of the defense’s designated expert witnesses had reviewed or relied upon this chest scan to form their trial opinions.  That left only the defendant doctor to introduce it.

It was undisputed that the doctor had never used, reviewed, or even known about this chest scan while treating the patient. Thus, he fundamentally lacked the personal knowledge required of a fact witness under Maryland law.

Conclusion

Then the court concluded:

“Clearly, then, it was within the trial judge’s discretion to prohibit [the doctor] from testifying about this CAT scan because such testimony would have gone outside the realm of [the doctor’s] personal knowledge regarding what he did and what he observed in the treatment of [the patient]”.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Fact Witness Evidence

The Court of Appeals struck the correct balance in this opinion on fact witness evidence. There was an aspect of relevancy to the CT scan. That is, if it showed the size of the aorta at a relevant time. However, the court appropriately ruled that a fact witness who had no personal knowledge of the scan could not testify about it. A party can use a properly designated and disclosed expert witness to testify about the scan if it is part of their opinions.

It is not clear why the defense did not have their experts use the CT scan. The court’s opinion states that none of the defense experts reviewed the CT scan. Nor did they rely on it in forming their opinions. So it does not sound like it was not used in discovery. But the question is why. The answer is not apparent from the opinion. It is not clear when the defense discovered the CT scan. That timing may have played into their ability to use it.

This decision stands as a reminder to trial practitioners. A fact witness must remain exactly that—a witness to the actual facts they personally experienced.

You can read additional Blog posts on cases involving evidence issues.

Thank you for reading our two-part series on this Maryland case. You or a loved one may have suffered life-altering injuries due to a surgical error, surgical mismatch, or medical malpractice in a hospital. Reach out to us today for an assertive, highly experienced analysis of your case.

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 to Evidence of Board Certification

In May 2007, the patient sought medical care at a vascular surgery practice. This was after experiencing persistent and severe pain in her thighs and buttocks. Medical evaluations revealed that a severely blocked aorta caused her symptoms. Medical providers scheduled her to undergo an aortobifemoral bypass surgery on July 16, 2007. This was to restore proper blood flow to her pelvis and lower extremities. The defendant doctor, a vascular surgeon and a colleague would perform the procedure.

During an aortobifemoral bypass, surgeons cut the abdominal aorta below the renal arteries. They utilize a synthetic graft to reconnect the aorta to the femoral artery. The surgeon must determine the proper size of the graft intraoperatively through visual inspection of the patient’s aorta.

A critical error allegedly occurred during the operation. The surgical team elected to utilize a 16×8 mm graft. However, the sutures used to attach the patient’s natural tissue to the synthetic graft failed to hold. This caused massive, immediate hemorrhaging. The doctors attempted to secure the bypass multiple times. However, with each subsequent attempt, the sutures ripped open, causing the patient to lose more blood.

Failed Graft

The surgeons relaized that the primary aortobifemoral bypass was failing. They aborted the procedure. Then they converted it into an emergency axillobifemoral bypass. This connects the axillary artery to the femoral artery, and they used a much smaller 8 mm graft.

Though they successfully completed the alternative bypass, the damage was already done. By the time the hemorrhaging was controlled, the patient had lost 5,100 ccs of blood—virtually her entire bodily blood volume. This profound loss of blood and oxygen resulted in devastating, permanent injuries: the patient was left permanently paralyzed from the waist down and suffered temporary failure of her kidneys, liver, heart, lungs, and spinal cord.

This is the factual background to the issue of admissibility of evidence that the defendant doctor did not have board certification.

The Trial and the Verdict

At trial, the plaintiff’s primary theory of negligence centered on a sizing mismatch. She argued that her native aorta was only 7–8 mm in diameter. That made the 16×8 mm graft choice inappropriate and negligent. The defendant doctor countered, claiming her aorta was 14 mm and that his graft choice was sound.

The jury ultimately believed the plaintiff, finding that the doctors had departed from the standard of care. They awarded her a total of $2,874,398 ($224,398 for past medical expenses, $2,000,000 for future medical care, and $1,333,000 for pain and suffering, which was reduced to the statutory non-economic damages cap of $650,000).

The defendant appealed, and the intermediate appellate court reversed the verdict on two key evidentiary points. The plaintiff then successfully petitioned the state’s highest court for review.

The Parties’ Arguments: Bolstering vs. Rebuttal

The central issue involves whether the jury was allowed to receive evidence that the defendant doctor did not have board-certification in vascular surgery.

The Defendant’s Argument: Legally Irrelevant Under Precedent

Pretrial, the defense team won a motion in limine keeping the doctor’s lack of board certification out of evidence. They relied heavily on established Maryland precedent holding that a physician’s failure to pass a board exam is generally irrelevant because it does not make it more or less probable that the physician botched a specific procedure.

The vascular surgeon argued that his choice not to obtain board certification in vascular surgery was not proper evidence because it had no bearing on whether he met the standard of care on the specific day of the operation. He argued that the trial judge committed a reversible error by later reversing this motion and allowing the jury to hear evidence about his lack of board certification.

The Plaintiff’s Argument: The Defense “Opened the Door”

The plaintiff’s legal team argued that while board certification status might be initially irrelevant, the defendant altered the rules of engagement during the trial.

When called to the stand, the defendant doctor’s counsel engaged in an extraordinary, 11-page examination detailing his extensive academic honors, his residency at a prestigious hospital, his teaching history, his elite surgical numbers, and his unpaid community board service. The plaintiff argued that because the defense chose to paint the doctor as a paragon of vascular surgery, fairness dictated that after the defendant “opened the door,” the plaintiff should be allowed to show that the defendant lacked board certification in that very specialty.

The Court’s Ruling: The Doctrine of “Opening the Door” to Evidence of Board Certification

In an unanimous decision, the judges reversed the intermediate appellate court and firmly ruled that the trial judge did not abuse his discretion in allowing the plaintiff to inquire into the defendant’s lack of board certification.

The court began by noting a fundamental distinction in medical malpractice law: the difference between an expert witness and a fact witness. The defendant was testifying exclusively as a fact witness—meaning his testimony was legally constrained to a recitation of what he did, saw, and observed while treating the patient.

Witness Accreditation Limits

The court noted that while “witness accreditation” (eliciting a witness’s background to make them relatable to a jury) is standard practice, it has strict boundaries for fact witnesses. The court explained the equitable concept of “opening the door”:

“‘Opening the door’ is simply a way of saying: ‘My opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.’ It is a method by which we allow parties to ‘meet fire with fire’… the doctrine is really a rule of expanded relevancy.”

The doctor’s counsel ignored explicit warnings from the trial judge and engaged in extensive “puffing.” This lasted across 11 pages of transcript. Thus, the defense effectively placed the doctor’s professional qualifications at issue. Fairness dictated that if the defense could “puff up” his reputation, the plaintiff had every right to “puff down” by exposing his lack of board certification.

The court also briefly addressed the defense’s complaint that the plaintiff’s counsel used this information during closing arguments to attack the doctor’s overall credibility. The court noted that because the defense counsel failed to lodge an immediate objection during the closing argument, they legally waived any right to appeal that specific point.

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Evidence of Board Certification

The Little opinion strikes a good balance. It recognizes the general rule that a defendant doctor’s lack of board certification ordinarily will not be admissible into evidence. However, if the defense goes too far in building up the doctor’s qualifications, admission of the lack of board certification into evidence is appropriate to balance the picture. It helps the juries receive a truthful, realistic portrait of the witness.

Moreover, if a physician wishes to testify as an expert and command the wide-ranging credibility that comes with extensive professional accreditation, their counsel must designate them as an expert subject to discovery.

The defense team attempted to have it both ways. They insulated the doctor as a mere fact witness while trying to extract the persuasive benefits of an elite expert witness. The court correctly identified this tactic. If a fact witness is allowed to spend lengthy time discussing matters wholly irrelevant to the actual operation—such as their charitable fundraising or undergraduate honors—they have left the realm of a fact witness and must face standard impeachment.

Trial Judge’s Correct Rulings

Here, the trial judge initially granted the doctor’s motion in limine. Then the judge warned the defense multiple times that they were playing with fire. He only reversed his ruling when the defense flagrantly overstepped.

You can read other Blog posts on cases involving Evidence issues.

Be sure to check back for Part 2 of this series. I will analyze the second half of the case regarding the exclusion of an unrelated chest CT scan. If you or a loved one has suffered a life-altering injury due to surgical error, contact us for an evaluation of your rights.

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.