| |
|
Litigation in Brief
Spring 2010
|
|
|
DeCaro, Doran, Siciliano,
Gallagher & DeBlasis, LLP
|
|
|
|
|
Vicariously Liable Principal Forced to Stand Alone in the District of Columbia
By Jennifer C. Cook
In 1994, the Maryland Court of Special Appeals opined in Anne Arundel Medical Center, Inc. v. Condon, that the release of an agent from liability, by operation of law, also releases a principal whose liability is solely vicarious. 102 Md.App. 408, 649 A.2d 1189 (Md. App. 1994). Just recently, however, the District of Columbia Court of Appeals came to the opposite conclusion. It held that a release of an agent does not release the solely vicariously liable principal when the release is limited and clearly indicates the plaintiff’s intention to preserve claims against the principal. Convit, et. al v. Wilson, CAB4014-03 (September 17, 2009).
The medical malpractice case originated in the Superior Court of the District of Columbia as a two-count complaint brought by a husband and wife, the Wilsons, against Dr. John Barrett, Dr. Barrett’s employer, Washington Brain and Spine Institute, P.C. (“WBSI”), and another doctor, Dr. Rafael Jacinto Convit (not an employee of WBSI). Mr. Wilson claimed severe and permanent neurologic injuries resulting from the doctors’ and the hospital’s negligence. Mrs. Wilson claimed loss of consortium.
Prior to trial, Mrs. Wilson settled her loss of consortium claim with Dr. Barrett only. The agreement specifically provided that Dr. Barrett’s $4,050,000.00 was for partial settlement only and only as to Mrs. Wilson’s claims against Dr. Barrett. It would not release WBSI from any of Wilsons’ claims against WBSI for Dr. Barrett’s actions. Nor would it release Dr. Barrett from Mr. Wilson’s claim.
After the agreement was executed, WBSI moved for summary judgment, claiming that the settlement agreement extinguished all claims against WBSI, a solely vicariously liable party. The trial court denied the motion with respect to both claims.
At trial, the jury found WBSI and Dr. Convit jointly and severally liable to Mr. Wilson for his negligence claim in the amount of $20,109,000.00 and Mrs. Wilson for her loss of consortium claim in the amount of $2,500,000.00.
WBSI and Dr. Convit filed post-verdict motions for judgment as a matter of law or, in the alternative, a new trial. All motions were denied except the request that the jury verdict be reduced as a result of the settlement agreement between Mrs. Wilson and Dr. Barrett. With respect to the loss of consortium claim, the trial court gave WBSI pro tanto credit, resulting in the resolution of all WBSI liability on the loss of consortium claim. The court determined that Dr. Convit was entitled to a 50% pro rata credit on the loss of consortium claim, bringing his liability to Mrs. Wilson to $1.25 million.
Finally, the trial court applied the $1,550,000.00 in excess funds from Mrs. Wilson’s $4,050,000.00 settlement with Dr. Barrett to WBSI’s liability of $20,109,000.000 on the negligence claim, reducing it to $18,559,000.00. Dr. Convit remained liable for $20,109,000.00.
WBSI appealed the decision to the D.C. Court of Appeals, claiming the Wilson-Barrett settlement should have extinguished both claims against WBSI, as solely a vicariously liable employer. Alternatively, WBSI and Dr. Convit argued that the trial court erred when it failed to grant them a 50% pro rata credit and reduction of the total amount of the jury’s verdict on both counts of the complaint. The Court of Appeals reversed the trial court’s reduction of WBSI’s liability with respect to Mr. Wilson’s negligence claim and affirmed on all other aspects.
To come to its conclusion the court ultimately found that the “modern rule” pertaining to joint tortfeasors is equally applicable in the vicarious liability context. It adopted the reasoning that the Uniform Contribution Among Tort-feasors Act (“UCATA”) applies to “persons liable in tort,” including “persons liable in tort for the same injury.” Additionally, it found the carefully-crafted, unambiguous settlement agreement clearly indicated the parties’ intentions to not release WBSI for either claim.
The court reversed the trial court’s ruling with respect to the reduction of the negligence judgment by the excess settlement amount. The court noted the clear intent of the parties to settle only the loss of consortium claim. Since a loss of consortium claim is an independent claim, the excess proceeds relating to it should not be applied to reduce the amount of the judgment relating to the negligence claim.
As a result of this decision, a District of Columbia principal may find itself standing alone in a legal battle sparked by its agent.
|
|
Recent Developments - Maryland
|
Doctrine of Informed Consent - No Requirement of Physical Invasion
Mother of Dylan McQuitty, who was born with cerebral palsy, sued Dr. Spangler alleging that he negligently breached his duty to obtain informed consent. As alleged by Mother, Dr. Spangler failed to advise her after she had been hospitalized for numerous pregnancy complications that baby Dylan could have been delivered at an earlier date, which, in turn, prevented her from determining the course of her own treatment. After a trial solely on the issue of informed consent, the jury returned a verdict of $13,078,515.00 in favor of Mother. Defendants moved for judgment notwithstanding the verdict, which was granted by the trial court on the basis that a violation of informed consent must be predicated on some violation of the patient’s physical integrity. After an exhaustive review of the common law approach to the doctrine of informed consent in the state, the Maryland Court of Appeals reversed, holding that there is no requirement of physical invasion when seeking to prove a violation of informed consent. In effect, the Court reaffirmed the seminal case Sard v. Hardy, which distinguished a claim of informed consent, sounding in negligence, and a claim for the intentional tort of battery, based on an unconsented physical invasion. McQuitty v. Spangler
|
Medical Malpractice - Disqualifying Plaintiff’s Expert Witnesses on the Basis of the “20 Percent Rule” - Court of Appeals Defines “Professional Activities”
Court of Appeals Defines “Professional Activities” - In 2002, Mrs. Waldt underwent a surgical procedure to treat an aneurysm in a blood vessel in her brain. The procedure was performed by the Chief of Interventional Radiology at the University of Maryland Medical System (UMMS), Dr. Zoarski. During the procedure, an artery was perforated, which caused internal bleeding in the brain and a stroke. Mrs. Waldt filed suit on the basis of professional negligence and a lack of informed consent. Mrs. Waldt named Dr. Debrun, an accomplished interventional neuroradiologist with 45 years of experience, as her expert witness in trial. Defendants, Dr. Zoarski and UMMS, challenged Dr. Debrun’s qualifications to be an expert witness on the basis of Maryland’s “20 percent rule.” Codified in Section 3-2A-04(b)(4) of the Courts & Judicial Proceedings Article, the “20 percent rule” requires that an expert must not devote more than 20 percent of his or her professional activities to testifying in personal injury cases. The trial court agreed with the Defendants and disqualified Dr. Debrun. Plaintiffs appealed and, ultimately, the Court of Appeals was left to define the term “professional services” for the purposes of the “20 percent rule.” Since retiring in 2001, Dr. Debrun testified that he spent approximately 50 hours per year working as an expert witness in personal injury cases. The Court of Appeals held that “professional activities,” as used in the statute, “must contribute to or advance the profession to which the individual belongs,” and not include “hours spent on personal or leisurely pursuits.” Thus, the Court was only willing to include the hours spent testifying and the hours that Dr. Debrun devoted to peer review of medical journals. That percentage being greater than the 20 percent allowed by law, Dr. Debrun was precluded from being an expert. University of Maryland Medical System Corp. v. Waldt
|
Non-Economic Damages - Cap
The Maryland Court of Appeals recently held that the cap on non-economic damages in medical malpractice actions applied to all healthcare malpractice claims including those for which arbitration has been waived. In the underlying medical malpractice action, the plaintiffs filed post trial motions requesting that the trial court not apply the cap on non-economic damages to the 3 million dollar award by the jury in the wrongful death and survival action. Plaintiffs argued that the cap on non-economic damages was not applicable to cases that had been waived out of arbitration. The Court of Appeals, however, held that the plain meaning of § 3-2A-09 and the specific provisions of §§ 3-2A-06A and 3-2A-06B, apply to all healthcare malpractice claims, whether they are 1) arbitrated; 2) arbitrated, but followed by a rejection; or 3) waived out of arbitration. Lockshin v. Semsker
|
| Recent Developments - Virginia |
|
Proximate Causation in Medical Malpractice Action Question for Jury
Whether a breach of applicable standard of care by a surgeon is a proximate cause of injury is a question for the jury. The Plaintiff underwent surgery to remove polyps. During surgery, the plaintiff developed a fistula, a complication of bowel surgery. As a result, the Defendants removed most of her colon leaving her with a lifetime of chronic diarrhea. Testimony from Plaintiff’s experts was that an alternative procedure existed that would have allowed her to retain more of her bowel. However, neither of Plaintiff's medical experts had criticism as to the development of the fistula, as it can occur in the absence of negligence. Additionally, both experts testified that “diarrhea is a known and acceptable side effect of any intestinal surgery [and] can happen in the absence of negligence.” The Circuit Court then struck Plaintiff’s evidence, holding that there was no proximate causation. In reversing, the Supreme Court explained that the Circuit Court erred in striking the Plaintiff’s evidence, explaining that the Circuit Court had invaded the province of the jury. Howell v. Sobhan
|
Adults Who Supervise and Care for Children Owe a Duty to Exercise Reasonable Care
In this case, the Defendants agreed to watch the Plaintiffs’ teenage daughter and allow her to spend time with their daughter. The Plaintiffs testified that their daughter was not to be driven by any inexperienced drivers or that she spend time with any young men. The Defendants dropped both girls off at a local shopping mall. The two girls then met two boys at the shopping mall who had reputations for engaging in street races. The girls watched a movie with the boys. The boys offered to drive the girls home, and being unable to contact the Defendants on their cell phone, the girls agreed. The four entered the vehicle of one of the boys who proceeded to fly into oncoming traffic, striking another vehicle, and killing the Plaintiffs’ daughter. The Supreme Court held that the allegations were sufficient to support a common law cause of action in negligence. The Court explained that when a parent relinquishes supervision and care of a child to an adult who agrees to supervise and care for child, supervising adult must discharge that duty with reasonable care. In addition, alleged actions of driver did not, as a matter of law, constitute a superseding cause that would preclude a finding that Defendants’ alleged breach of duty proximately caused death of Plaintiff’s daughter. However, dismissal was in part appropriate as Defendants did not have a special relationship with Plaintiff’s daughter, giving rise to a duty to protect her from criminal acts of third parties. Kellermann v. McDonough
|
Suit for Contractor’s Mis-representations Regarding Adequacy of Materials Sounds in Contract, Not Tort
In this case, the defendant contractor misrepresented that repairs to foundation were adequate to repair cracks; however, the entire foundation needed to be replaced. The Court held that the matter sounded in contract, not tort. The Court explained that even though the contractor lied, the Court would not allow every breach of contract action to be brought as a negligence or fraud claim simply because of misrepresentations in a contract. Dunn Const. Co. v. Cloney
|
|
Recent Developments -
District of Columbia
|
|
Workers’ Compensation - Employer Not Required to Present Medical Expert of its Own
Claimant injured her back while working at Washington Hospital Center in 1993. In 1996, she had surgery as a result of the accident. Since that time, she has received temporary total disability benefits. Twelve years after the initial accident, in 2005, Claimant fell down some stairs in her home when, as she claims, her left leg gave out. As a result of the fall, she tore the rotator cuff in her left shoulder. Shortly thereafter, she sought an award of permanent partial disability based on the 20% loss of use of her left leg. Before an ALJ, Claimant testified as to the long-history of complications with her leg and regular falls of a similar nature. She also presented evidence from her treating physician, in the form of a letter, that opined that she had a 20% impairment in her left leg. The ALJ found this evidence to be unpersuasive and denied the request for permanent partial disability. The District of Columbia Court of Appeals affirmed the ruling of the ALJ, noting that the ALJ was the ultimate judge of credibility. The Court held that “it is not absolutely necessary for the employer to present medical evidence of its own,” rather it is the petitioner’s burden to present evidence sufficient to prove their claim. Golding-Alleyne v. District of Columbia Department of Employment Services
|
|
Negligent Infliction of Emotional Distress - ‘Zone of Danger’ Requirement Upheld But May Be Reconsidered
In 2000, after his girlfriend informed him that she had become HIV positive, Plaintiff visited the Whitman Walker Clinic for testing. Although he tested negative for HIV, certain errors in his record led one attending clinician to inform Plaintiff that he was HIV positive. Over the course of the next five years, Plaintiff sought treatment for a disease that he did not have, became severely depressed, resorted to drugs, and watched as his professional and personal lives crumbled around him. In 2005, Plaintiff was tested again, and informed that he was HIV negative and that there must have been an error in his previous diagnosis. Plaintiff sued the Whitman Walker Clinic on a theory of negligent infliction of emotional distress. The clinic moved for summary judgment, and in reply, Plaintiff offered detailed evidence regarding the trauma that stemmed from the original mis-diagnosis in 2000. The trial court, however, ruled in favor of the clinic. In so doing, the court determined that under Williams v. Baker, a 1990 en banc D.C. Court of Appeals case, plaintiff was required to show that he was within the applicable “zone of danger,” something that he failed to do. The D.C. Court of Appeals affirmed the trial court’s ruling. Hedgepeth v. Whitman Walker Clinic, et al.
|
|
Personal Injury - Negligence - Evidence that a Defect Existed is Insufficient to Alone Establish Constructive Notice
Plaintiff, a 46-year old woman, injured her foot at the Anacostia Metro Station when she stepped into a missing section of a “tree grate.” Plaintiff sued WMATA for her personal injuries. At the close of trial, the jury returned a verdict in favor of the plaintiff. The trial judge overruled defense counsel’s motions for directed verdict based on Plaintiff’s failure to present any evidence of actual or constructive notice of the defect by WMATA. The D.C. Court of Appeals agreed with WMATA and reversed the judgement. The Court concluded that “the fact that a defect exists is not sufficient in and of itself to provide constructive notice of that defect to the entity that maintains the property.” Washington Metropolitan Area Transit Authority v. Ferguson
|
|
 |
 |
 |
|
17251 Melford Boulevard
Suite 200
Bowie, Maryland 20715
(301) 352-4950
Fax - (301) 352-8691
3930 Walnut Street
Suite 250
Fairfax, Virginia 22030
(703) 255-6667
Fax - (703) 299-8548
740 Stagwell Road
Mail: P.O. Box 338
Queenstown, Maryland 21658
(410) 827-5013
Fax - (410) 827-4323
www.decarodoran.com
|
|
 |
 |
 |
| In This Issue |
| Vicariously Liable Principal Forced to Stand Alone in the District of Columbia |
| Recent Developments - Maryland |
| Md. - Doctrine of Informed Consent - No Requirement of Physical Invasion |
| Md. - Medical Malpractice - Disqualifying Plaintiff’s Expert Witnesses on the Basis of the “20 Percent Rule” |
| Md. - Non-Economic Damages - Cap |
| Recent Developments - Virginia |
| Va. - Proximate Causation in Medical Malpractice Action Question for Jury |
| Va. - Adults Who Supervise and Care for Children Owe a Duty to Exercise Reasonable Care |
| Va. - Suit for Contractor’s Mis-representations Regarding Adequacy of Materials Sounds in Contract, Not Tort |
| Recent Developments - District of Columbia |
| D.C. - Workers’ Compensation - Employer Not Required to Present Medical Expert of its Own |
| D.C. - Negligent Infliction of Emotional Distress - ‘Zone of Danger’ Requirement Upheld But May Be Reconsidered |
| D.C. - Personal Injury - Negligence - Evidence that a Defect Existed is Insufficient to Alone Establish Constructive Notice |
| About The Firm |
|
|
About The Firm
DeCaro, Doran will be holding its 33rd annual Defense Litigation Seminar at Martin’s Crosswinds in Greenbelt, Maryland on Tuesday, May 4, 2010 from 11:00 a.m. through 5:30 p.m. If you have not yet received an invitation to this event, please contact Cindy Cavanaugh, or any of the attorneys at DeCaro, Doran to arrange to attend. The program, which includes lunch and cocktail reception, is free of charge.
This year our guest speaker will be Richard B. Loucks, Ph.D., P.E. Dr. Loucks is the principal engineer and senior technical consultant of the Loucks Group in Leesburg, Virginia. He will speak on the benefits of forensic engineering in the defense of personal injury cases and will also address issues specifically related to the Toyota recall.
As always, our attorneys will address topics of interest applicable to defense litigation.
James Liskow will be addressing the ins and outs of litigating cases against pro se plaintiffs. In particular, he will address the difficulties presented in litigation when the claimant is unrepresented.
In the face of the boom of social engineering networks, Erik Nyce and Jennifer Cook will speak on methods to utilize internet based sites, such as Facebook and Twitter, to obtain impeachment information for cross-examination of plaintiffs.
Tom Doran will speak on two recent decisions from the highest courts in Maryland and the District of Columbia in the medical malpractice cases of Locksin v. Semsker and Convit v. Wilson. Both decisions addressed significant issues regarding the interpretation and application of releases in personal injury litigation.
Jeff DeCaro will address tort reform in the new millenium, with a focus on what, if any, impact recent legislation has had on the defense of personal injury claims.
Warren Stephens will revisit one of his favorite topics, defending against junk science. For a number of years, the appellate courts had been strengthening the ability of the defense to preclude experts offering opinions without a scientific basis and Warren has investigated, and will discuss, the current state of affairs in this very important defense area.
On the issue of investigation and discovery, Sam DeBlasis will offer a presentation on interpreting medical records. He will focus on a discussion of medical terms and conditions commonly outlined in the medical reports we receive in the pre-suit and discovery phase of litigation.
Finally, we can always rely on Chuck Gallagher to give his annual presentation on recent developments in insurance defense law in the Commonwealth of Virginia
|
|
|
|
|
|
| |
|