Board of Trustees, Community College of Baltimore County v. Patient First Corp.

McDonald, J. In an indemnification provision of a contract, one .party agrees to reimburse the other party for a liability, loss, or ⁴⁵⁹ damage that the other party might incur. 1 This case concerns the application of an indemnification provision in an agreement between a community college and a medical facility under which student medical technicians gained useful experience doing blood draws at the facility. The college agreed to indemnify the facility for any liability that the facility might incur (including attorneys’ fees) arising from a negligent act or omission of a student. As a result of an unfortunate incident involving a failed blood draw by a student, the facility paid money to settle a lawsuit and incurred attorneys’ fees. The community college contested its obligation to indemnify the facility for the settlement payment and attorneys’ fees, asserting that the liability arose from the facility’s own negligence.

After a bench trial, the Circuit Court decided in favor of the facility. We hold that: (1) the medical facility had the burden of proving its entitlement to indemnification — i.e., the existence of the indemnification agreement, negligent conduct of a student at the facility, its payment of money in settlement and for attorneys’ fees, and the failure of the college to indemnify it; (2) the college had the burden of proving, as an affirmative defense, that the facility itself was negligent and that the liability arose from that negligence; and (3) the trial court was not clearly erroneous in concluding that the facility bore its burden, but the college did not. We remand for further consideration of the reasonableness of the attorneys’ fee award. I Background The Agreement between CCBC and Patient First Among the programs offered by Petitioner Community College of Baltimore County (“CCBC”) is training for a Phleboto ⁴⁶⁰ my Technician Certification. 2 In connection with that program, CCBC entered into arrangements with local hospitals and medical providers in the Baltimore area to permit its students to obtain clinical experience at those facilities.

The terms of the arrangement were incorporated in a written agreement drafted by CCBC entitled “Community College of Baltimore County — Agreement for Clinical Program — Venipuncture” (the “Agreement”). The Agreement was to be executed by representatives of CCBC and the particular facility, referred to in the agreement as the Provider. The Agreement provided that CCBC and the Provider agreed to establish a “supervised clinical experience for the Venipuncture Students” at the Provider’s facilities. It then set forth various “rights and responsibilities” of CCBC and the Provider with respect to the program, the term of the Agreement, and various other general provisions.

Pertinent to this case, the Agreement included a section on indemnification, which reads, in pertinent part: 7. INDEMNIFICATION 7.1 [CCBC] will defend, indemnify and hold the Provider harmless from any and all losses, claims, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) which arise out of the negligent acts or omissions of [CCBC], its agents, employees or Venipuncture Students in connection with this Agreement. ... It is further understood and agreed that [CCBC] is not waiving or relinquishing in any manner any defenses that may be available to [CCBC] including, but not limited to, government sovereign immunity or breach of contract or otherwise, nor is [CCBC] relinquishing any defenses that may become available to it at any time during the term of this Agreement, but that [CCBC] is ⁴⁶¹ free to assert all defenses that may be available to it at law or in equity. 7.2 The Provider will defend, indemnify and hold the Program harmless for any and all losses, claims, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) which arise out of the negligent acts or omissions of the Provider, its agents or employees in connection with this Agreement or by any breach or default in the performance of the obligations of the Provider. In September 2003, CCBC entered into the Agreement with Respondent Patient First Corporation (“Patient First”). 3 Patient First is a provider of preventative, primary, and urgent care services at medical centers throughout the mid-Atlantic area, including several located in the Baltimore area.

The Blood Draw In January 2007, as part of the CCBC program and pursuant to the Agreement between CCBC and Patient First, a CCBC student worked as a student phlebotomist at Patient First’s medical center in Perry Hall, Maryland. At the end of her first week at the facility, the CCBC intern attempted to draw blood from Dimitris Politis, a six-year old patient. At the time of the attempted blood draw, the treating physician who had ordered the blood draw had left the examining room and only the child’s mother and grandmother were present. The CCBC intern accidentally nicked herself with a needle and then used the same needle to attempt, unsuccessfully, to draw blood from the child.

The treating physician, who was also the medical director for the facility, later discovered what had happened and ordered that the CCBC intern be tested for infectious diseases. The CCBC intern subsequently tested ⁴⁶² positive for Hepatitis C. The child was tested for a year, but did not test positive for Hepatitis C. The Politis Negligence Action In December 2009, the child’s mother, Susan Politis, filed a complaint against Patient First, its affiliates, and the CCBC intern in the Circuit Court for Baltimore County. The complaint consisted of three counts alleging negligence on the part of the CCBC intern and Patient First and sought $5 million in damages as to each count. The specific allegations of negligence largely concerned the actions of the CCBC intern. 4 The complaint also alleged that the CCBC intern acted as “an actual and/or apparent agent, servant, and employee of’ Patient First and that she “was not supervised at the time she negligently attempted a blood draw from the minor Plaintiff.” The complaint alleged that the defendants collectively acted negligently in failing to utilize appropriate safeguards or procedures to protect the plaintiffs from injury or contaminated blood.

On January 26, 2010, Patient First’s General Counsel sent a letter to CCBC asserting that CCBC was obligated to defend and indemnify Patient First for any liability with respect to the Politis lawsuit pursuant to paragraph 7.1 of the Agreement between CCBC and Patient First. CCBC responded by referring Patient First to CCBC’s counsel. CCBC denied that it ⁴⁶³ was obligated to defend or indemnify Patient First. Patient First eventually hired its own outside counsel to defend against the Politis complaint.

The parties in the Politis lawsuit conducted discovery and participated in mediation. On March 16, 2011, they reached a settlement agreement in which the plaintiffs agreed to release the CCBC intern and Patient First from liability in exchange for a payment of $50,000. The insurance that CCBC had obtained to cover its students, including the intern placed at Patient First, contributed $40,000 toward the settlement and Patient First contributed $10,000. The settlement agreement recited that the CCBC intern and Patient First expressly denied all allegations of negligence and that they denied that any conduct on their part caused damage or injury to Ms. Politis or her child.

The settlement agreement also stated that the settlement was not to be construed as an admission of liability on behalf of the CCBC intern or Patient First “at any time for any purpose.” Patient First’s Action to Enforce Indemnification Provision In June 2011, Patient First initiated this action for breach of contract in the Circuit Court for Baltimore County, alleging that CCBC had failed to comply with the terms of their Agreement by failing to indemnify Patient First for (1) the $10,000 that Patient First had paid toward the settlement of the Politis lawsuit and (2) attorneys’ fees and costs in the amount of $78,937.39 5 related to the defense of that lawsuit. In its answer, CCBC generally denied liability for breach of contract and asserted a number of defenses, including that the Agreement did not obligate it to indemnify Patient First for Patient First’s own negligence. At the conclusion of a two-day bench trial in April 2013, 6 the Circuit Court ruled from the bench that Patient First was ⁴⁶⁴ entitled to indemnification. The court reasoned that, in light of the mutual indemnification provisions in the Agreement, resolution depended not on the allegations in the Politis complaint, but on “where liability rests.” The court found that negligence on the part of the CCBC intern had been established, but that there was insufficient evidence to show negligence on the part of Patient First — what the court referred to as an “independent breach” of a duty.

The court awarded Patient First $87,097.08 in damages, which included the $10,000 that Patient First contributed to the Politis settlement and attorneys’ fees and costs accrued in defending the Politis law suit. 7 A written judgment reflecting the oral ruling followed. CCBC appealed. The Court of Special Appeals affirmed the judgment of the Circuit Court. 219 Md.App. 69 , 98 A.3d 1072 (2014). We granted CCBC’s petition for a writ of certiorari to consider (1) whether the Circuit Court made an error of law when it ruled in favor of Patient First in the breach of contract action; and (2) whether the Circuit Court abused its discretion in allowing Patient First’s General Counsel to testify as to the reasonableness of the attorneys’ fees it had paid to defend the Politis lawsuit and erred in relying on that testimony to make the fee award.

II Indemnification CCBC argues that the Circuit Court and the Court of Special Appeals improperly ignored the common law presumption that a party seeking indemnification cannot recover for liability resulting from the party’s own negligence. Patient First argues that, before CCBC can rely on the presumption, there must be a determination that Patient First was negligent and CCBC bears the burden of proving that Patient First’s liability arose from its own negligence. CCBC dis ⁴⁶⁵ agrees that it bears the burden of proof and argues that Patient First, as the plaintiff, must prove that its own actions were not negligent. In sum, CCBC argues that a misplaced burden of proof and un-used presumption caused the Circuit Court to reach an erroneous factual conclusion as to Patient First’s entitlement to indemnification.

To untangle these issues, it is useful to answer four questions: 1— Does the common law presumption apply to this case? 2— What liability is covered by the indemnification provision? 3— As a legal matter, did the Circuit Court correctly allocate the burdens of proof? 4— Was the Circuit Court clearly erroneous in its findings as to negligence? A. Whether the Presumption Applies Here CCBC argues that the trial court erred as a matter of law by failing to apply the presumption that an indemnitee cannot recover for its own negligence. However, there is no need to resort to that presumption in this case because the indemnification clause itself clearly negates any suggestion that it requires CCBC to indemnify Patient First for liability arising out of Patient First’s own negligence. The Presumption Against Indemnification for One’s Oum Negligence There is a common law presumption that an indemnification agreement ordinarily does not cover liability resulting from the indemnitee’s own negligence.

Applying that presumption, a court will not interpret an indemnification clause “to indemnify a person against his own negligence unless an intention so to do is expressed in those very words or in other unequivocal terms.” Crockett v. Crothers, 264 Md. 222, 227 , 285 A.2d 612 (1972); see also Farrell Lines, Inc. v. Devlin, 211 Md. 404, 421 , 127 A.2d 640 (1956). That presumption may be overcome when an indemnification clause of a contract expressly permits a party to recover for liability ⁴⁶⁶ arising from the party’s own negligence. Mass Transit Admin. v. CSX Transp., Inc., 349 Md. 299, 310 , 708 A.2d 298 (1998) (contract’s indemnification clause expressed in “unequivocal terms” the intent to indemnify a party for its own negligence); Kreter v. HealthSTAR Communications, Inc., 172 Md.App. 243 , 914 A.2d 168 (2007) (concluding that the presumption did not apply because it would belie the parties’ actual intent). Construing the Indemnification Clause in this Case As with any contract clause, a court construes language of an indemnification provision in accordance with its customary, ordinary, and accepted meaning.

See Atl. Contracting & Material Co. v. Ulico Cas. Co., 380 Md. 285, 300-01 , 844 A.2d 460 (2004). The construction of the pertinent paragraphs of the Agreement is straightforward.

Paragraph 7.1 of the Agreement provides that CCBC will indemnify Patient First for “any and all losses, claims, liabilities, damages, costs and expenses ... which arise out of the negligent acts or omissions of ... Venipuncture Students. ...” It is thus clear that CCBC has agreed to indemnify Patient First for liability Patient First may incur as a result of the negligence of a student like the one involved in the Politis incident. But there is no clear or unequivocal expression that CCBC has agreed to indemnify for the indemnitee’s own negligence — Paragraph 7.1 does not say that CCBC will indemnify Patient First for liability arising out of negligent acts or omissions of Patient First itself in the operation of venipuncture program. If there was any doubt on the latter score, it is quickly eliminated by reference to the next paragraph of the Agreement.

Paragraph 7.2 provides that Patient First will indemnify CCBC for “any and all losses, claims, liabilities, damages, costs and expenses ... which arise out of the negligent acts or omissions of ...” Patient First or its agents or employees. This paragraph negates any notion that CCBC would be required to indemnify Patient First under paragraph 7.1 for ⁴⁶⁷ Patient First’s own negligence. If CCBC were required under paragraph 7.1 to indemnify Patient First for its own negligence, that would be a loss arising out of the negligent acts of Patient First, for which CCBC would in turn be entitled to indemnification from Patient First under paragraph 7.2. Thus, it is clear that CCBC is not to incur liability — or pay indemnification for liability — for actions arising from Patient First’s own negligence.

In sum, the Agreement is clear on its face that Patient First would not be entitled to indemnification for its own negligence. The common law presumption, which is simply an aid to construction, is not needed here. B. Identifying the Type of Liability Covered by Paragraph 7.1 It is useful to consider, more concretely, the type of tort liability subject to indemnification by CCBC under paragraph 7.1 and distinguish it from tort liability that is not covered. A provider like Patient First might be held liable for negligent actions of those who work for it under a theory of respondeat superior.

Under that doctrine, an entity may be held vicariously liable for the negligent acts or omissions of its employees or agents, acting within the scope of their employment or agency, even if the entity itself is without fault. Southern Management Corp. v. Taha, 378 Md. 461, 480-81 , 836 A.2d 627 (2003). 8 ⁴⁶⁸ Under the doctrine of respondeat superior, there would be no need for a tort plaintiff to prove that a provider like Patient First itself was negligent in order for Patient First to be held liable for the negligence of a student intern participating in the venipuncture program. In such a case, CCBC would be obligated to indemnify Patient First under paragraph 7.1 because Patient First’s liability arose “out of the negligent acts or omissions of a Venipuncture Student.” In contrast, one might imagine a situation in which a medical facility where a student was working had failed to maintain its equipment properly and a patient suffered an injury as a result. The resulting tort action seeking compensation for that injury would likely focus on the facility’s negligent maintenance of its equipment and not on a theory of respondeat superior based on the actions of the student, although the student might also be named as a defendant in the tort action.

In such a case, the provider would not be entitled to indemnification from CCBC for its liability because the liability did not arise out of an act or omission of the student. Indeed, if CCBC incurred some liability as a result of the incident, it would be entitled to indemnification from the provider under paragraph 7.2 of the Agreement. 9 In theory, then, it is clear what type of tort liability is subject to the indemnification provision and what type is not. In practice, things are never so easy. The allocation of the burden of proof becomes important in determining, in the Circuit Court’s words, “where liability rests.” ⁴⁶⁹ C. Whether the Circuit Court Correctly Allocated the Burdens of Proof In its answer to the complaint in this case, CCBC asserted as a defense that the liability for which Patient First was seeking indemnification arose out of Patient First’s own negligence.

At trial it identified that negligence as Patient First’s alleged failure to adequately supervise the CCBC intern and argued that Patient First was required to demonstrate that it was not negligent to qualify for indemnification. In analyzing the evidence presented to it, the Circuit Court allocated the burden of proof on that issue to CCBC and ultimately concluded that CCBC did not meet that burden. On appeal, CCBC reiterates its contention that the burden of proof should have been placed on Patient First to prove that it was not negligent in order to make out its claim for indemnification. Burdens of Proof “In Maryland, as in the majority of states, it is the rule, in either breach of contract or tort cases, that the burden of proof is on the plaintiff, or on the party who asserts the affirmative of an issue, and that burden never shifts.” Kruvant v. Dickerman, 18 Md.App. 1, 3 , 305 A.2d 227 (1973); Operations Research, Inc. v. Davidson & Talbird, Inc., 241 Md. 550, 574 , 217 A.2d 375 (1966) (“The burden of proof rests on the party who has the affirmative of the issue”); Burgess v. Lloyd, 7 Md. 178, 197 (1854) (noting the “general rule, that he who holds the affirmative must prove it”).

The phrase “burden of proof’ encompasses two distinct burdens: the burden of production and the burden of persuasion. Commodities Reserve, Corp. v. Belt’s, 310 Md. 365 , 368 n. 2, 529 A.2d 822 (1987) (quoting C. McCormick, McCormick on Evidence § 336, at 947 (3d ed. 1984)). The party that bears the burden of production must produce sufficient evidence on an issue to present a triable issue of fact and avoid a directed verdict. L. McLain, 5 Maryland Evidence, § 300:6.

The burden of production is “usually cast first upon the party who has pleaded the existence of the fact ... but may shift to the adversary ⁴⁷⁰ when the pleader has discharged its initial duty.” 2 McCormick on Evidence, § 386 (7th ed., Kenneth S. Broun, ed.). The burden of persuasion comes into play only after the parties have sustained their burdens of production and then only if the fact finder finds the evidence supporting each party of equal weight. Commodities Reserve, 310 Md. at 371 , 529 A.2d 822 ; Kassap v. Seitz, 315 Md. 155, 170-71 , 553 A.2d 714 (1989). In that case, the fact finder must find against the party bearing the burden of persuasion.

Kassap, 315 Md. at 170-71 , 553 A.2d 714 ; 5 Maryland Evidence § 300:4 (noting the burden of persuasion is also termed “the risk of nonpersuasion, because if two possible conclusions can be inferred from the evidence adduced and neither can be said to have been proved, the judgment must go against the party on whom the burden rests”). Unlike the burden of production, the burden of persuasion never shifts from one party to another during the course of a trial. Operations Research, 241 Md. at 574 , 217 A.2d 375 . A plaintiff initially bears both the burden of production and the burden of persuasion as to its claims.

The burden of production may shift to the defendant, who can either do nothing or present evidence to disprove the plaintiffs allegations. 10 A defendant does not assume the burden of persuasion merely by presenting a defense. An exception is when a defendant asserts an affirmative defense. When a defendant asserts an affirmative defense, the defendant has taken the affirmative of an issue and therefore assumes the burden of production and the burden of persuasion as to the elements of that defense. Crowther v. Hirschmann, 174 Md. 100 , 197 A. 868 (1938) (“it is equally well settled that when the defendant sets up an affirmative defense, he is required to ⁴⁷¹ offer legally sufficient evidence of the fact upon which he relies”).

Allocating the Burden of Proof on Claims of Negligence A party alleging negligence initially bears the burden of production and persuasion that the other party was negligent. See, e.g., Schultz v. Bank of Am., N.A., 413 Md. 15, 27 , 990 A.2d 1078 (2010) (noting the elements a plaintiff must prove in order to establish negligence); Suburban Hosp. Ass’n v. Mewhinney, 230 Md. 480, 485 , 187 A.2d 671 (1963) (reversing judgment because plaintiff failed to present sufficient evidence to prove negligence). In other words, a party is presumed to have acted with due skill and care and a party alleging otherwise bears the burden of overcoming that presumption.

See Schultz, 413 Md. at 28-29 , 990 A.2d 1078 (plaintiff alleging negligence of a professional bears the burden of overcoming the presumption that due skill and care were used); John Hancock Mut. Life Ins. Co. of Boston v. Plummer, 181 Md. 140, 144 , 28 A.2d 856 (1942) (a court will presume that a professional, such as a dentist or physician, has performed his work carefully and skillfully in the absence of proof to the contrary). Consistent with this principle, a defendant alleging contributory negligence by a plaintiff bears the burden of proof on that issue.

In such a case, “[t]here is no burden on the plaintiff to free himself from the charge of contributory negligence.” Sheriff Motor Co. v. State, for Use of Parker, 169 Md. 79 , 179 A. 508 (1935); see also Sergeant Co. v. Pickett, 285 Md. 186, 203 , 401 A.2d 651 (1979) (defendant in a contract dispute alleging that the plaintiff failed to use ordinary care in mitigating damages bears the burden of proof on that issue). Burdens of Proof in an Action to Enforce Indemnification Agreement Patient First, as the plaintiff in this action to enforce the indemnification agreement, had the burden to prove that CCBC owed it a contractual duty and that CCBC breached ⁴⁷² that duty. See Taylor v. NationsBank, N.A, 365 Md. 166, 175 , 776 A.2d 645 (2001). Specifically, in order to establish a breach of the contract, Patient First had the burden to prove that it incurred liability arising out of a negligent act or omission of a venipuncture student and that CCBC had not reimbursed it for that liability.

CCBC argues that Patient First also had the initial burden to demonstrate that the liability did not arise from its own negligence. This would seemingly create a presumption that a party seeking indemnification was negligent, unless and until it proves that it was not. CCBC’s argument is inconsistent with how this Court has consistently applied the burden of proof in negligence cases. 11 CCBC has presented no convincing reason why the allocation of the burdens of proof should be reversed. CCBC admits Patient First’s basic factual premise — that the contract provides for indemnification of Patient First for liability arising out of the negligence of venipuncture students and that the CCBC intern was negligent — but argues that Patient First is nevertheless barred from recovering indemnification because Patient First was also negligent and that its payment to ⁴⁷³ settle the Politis litigation arose out of that negligence, instead of the negligence of the CCBC intern.

In our view, this should be treated as an affirmative defense. See Kruvant, 18 Md.App. 1 , 305 A.2d 227 (“An affirmative defense is one which directly or implicitly concedes the basic position of the opposing party, but which asserts that ... the opponent is not entitled to prevail because he is precluded for some other reason.”) (citation omitted). The Circuit Court correctly allocated the burden of proof to CCBC (the indemnitor), to prove that the liability incurred by Patient First itself arose out of Patient First’s (the indemnitee’s) own negligence. 12 D. Whether the Circuit Court’s Findings as to Negligence are Clearlg Erroneous CCBC contends that, even if the burden of proof was properly placed on it to establish Patient First’s negligence as ⁴⁷⁴ an affirmative defense, it met that burden. It thus disputes the Circuit Court’s determination of that issue.

When reviewing the results of a bench trial, as in this case, an appellate court “will not set aside the judgment of the trial court on the evidence unless clearly erroneous, and will give due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Maryland Rule 8-131(c). Whether the Allegations of the Politis Complaint Control CCBC argues that the allegations in the Politis complaint are sufficient to establish that Patient First acted negligently. As noted above, that complaint named both Patient First and the CCBC intern as defendants. The complaint asserted, somewhat cryptically, at least two theories of liability with respect to Patient First: (1) that Patient First was liable because the CCBC intern acted as “an actual and/or apparent agent, servant, and employee” of Patient First — liability based on a theory of respondeat superior and (2) that Patient First was liable because the CCBC intern was unsupervised at the time of the incident and because both defendants failed to use “appropriate safeguards or procedures” — allegations that appear to allege some independent negligence on the part of Patient First.

No trial was held in the Politis case that would have resolved whether Patient First itself was negligent or whether any liability it incurred would be solely as a result of the actions of the CCBC intern under a theory of respondeat superior or on the basis of some independent negligent act or omission. 13 Although Patient First settled the case, it specifically denied fault in the settlement agreement — as did the CCBC intern. In our view, neither the obligation to indemnify — nor the affirmative defense that the liability was attributable to ⁴⁷⁵ the negligence of the party seeking indemnification — are established by the unproven allegations of a complaint. 14 Accordingly, the trial of this action was necessary to determine whether the parties met their respective burdens. Trial — Patient First’s Claim In order to meet its burden of proof, Patient First presented the testimony of the treating physician at its Perry Hall facility, its director of training, and its General Counsel. The treating physician, who also happened to be the medical director of the facility, related the facts of the failed blood draw as recounted to her by the CCBC intern and Ms. Politis. ⁴⁷⁶ While CCBC cross-examined the physician to suggest that she had failed to properly supervise the CCBC intern, it was essentially uncontested that the CCBC intern was negligent in attempting to draw blood from the child with the same needle with which she had stuck herself.

The director of training introduced the indemnification agreement. Patient First’s General Counsel testified that Patient First was sued as a result of the CCBC intern’s negligent actions. He testified that CCBC refused Patient First’s request that it defend and indemnify Patient First and that Patient First was required to defend the Politis lawsuit for 15 months, including discovery, mediation, and settlement. He further testified that Patient First agreed to contribute $10,000 in order to settle all the allegations of negligence alleged against Patient First in the Politis complaint and had incurred attorneys’ fees.

There was no dispute that the CCBC intern was negligent, that in her capacity as a student intern she was Patient First’s agent with respect to the Politis child, and that she was acting within the scope of her employment or agency at the time of the incident. There was more than sufficient evidence for the Circuit Court to conclude that Patient First had carried its burden of proving that there was an agreement for indemnification, that Patient First was subject to tort liability under a respondeat superior theory, and that it incurred monetary liability and attorneys’ fees as a result. Trial — CCBC’s Affirmative Defense CCBC contended that Patient First’s potential liability — and therefore the $10,000 it had contributed to the settlement — was more related to Patient First’s own negligence in allegedly failing to supervise the CCBC intern adequately. CCBC attempted to establish at trial that Patient First was negligent in two respects: (1) allowing a venipuncture student to draw blood from child under the age of 10; and (2) failing to ⁴⁷⁷ provide adequate supervision of a venipuncture student during a blood draw.

It was undisputed that nothing in the Agreement or any other document set forth requirements for supervision of the student phlebotomists. 15 Several CCBC officials testified, including the coordinator of the college’s phlebotomy program at the time of the incident and one of its faculty members. They described their understanding of “supervised clinical experience” — the phrase used in the Agreement — that students would have while placed at a facility like Patient First. According to the coordinator of the program, it contemplated a progression under which a student would first shadow facility staff, then do blood draws with direct supervision, and then work independently. While he did not expect that Patient First staff would directly observe every “needle stick” by a student, he believed that students would either not do “hard sticks” (ie., young children, elderly, or obese patients) or would be directly supervised when doing so.

He said that, because of the physical layout of Patient First facilities— where examining rooms were in close proximity to one another — it was not anticipated that a supervisor would always be in a room with a student. The faculty member testified that, while he himself had never allowed a student to draw blood from a six-year old child, he had not instructed his students to refrain from drawing blood from young children. CCBC also noted that Patient First had admitted that, on the day of the incident, the CCBC intern was under the general supervision of the treating physician (who was also the medical director of the facility) and that the physician testified that she was unaware that a student was doing the blood draw for the Politis child. Finally, CCBC noted that Patient First’s General Counsel stated on cross-examination that Patient First had contributed $10,000 to the settlement of the Politis ⁴⁷⁸ case to settle allegations of negligence against Patient First.

CCBC asserted that this testimony was an admission by Patient First that the funds for which its sought indemnification related to liability for its own negligence. In its oral ruling at the conclusion of the trial, the Circuit Court observed that the Agreement itself “was very nonspecific about what the supervised clinic was supposed to be,” that the testimony revealed different understandings of the extent of supervision, and that it was difficult for the court to “figure out what is the standard of care ... and whether it was breached.” The court noted that “it’s not something that’s apparent on its face and it’s not something, even looking at the people who testified in front of me who have experience in this field there were differences of opinion----” In the absence of expert testimony establishing the standard of care for supervision of a student phlebotomist, the court stated that it was left with “a question mark as to whether the evidence is sufficient to show a breach by Patient First” of a duty of care. Accordingly, the court found that CCBC had faded to carry its burden of proof as to its affirmative defense. In our view, the Circuit Court’s assessment of the evidence concerning CCBC’s affirmative defense is not clearly erroneous.

The Circuit Court’s finding on this issue was based primarily on the absence of evidence of the standard of care. As with any negligence