Hashmi v. Bennett

BATTAGLIA, J. We are asked to consider whether, in a medical malpractice action, a judgment entered after a jury trial against a negligent tort-feasor, 1 already reduced by a settlement entered into with a hospital corporation, with an attendant release, may be further diminished by requesting a “judicial determination” of negligence against three employees of the hospital, who were never joined as parties in the action. In so doing, we are faced with the following questions on certiorari, Hashmi v. Bennett, 412 Md. 494 , 988 A.2d 1008 (2010), which we have renumbered: ⁷¹⁰ I. What are the standards for interpreting a joint tortfeasor release in favor of a hospital with multiple allegedly negligent employees or agents?

II

What are the standards for determining how many joint tort-feasors properly should be attributed to a hospital whose liability is vicarious only for the actions of its employees and agents?

III

What procedural recourse does a non-settling defendant have to challenge the allocation of joint tortfeasor shares made in a joint tort-feasor release in favor of a co-defendant hospital with multiple allegedly negligent employees or agents? We shall hold that the release of the hospital clearly and unambiguously encompasses all of its employees and agents; we shall further hold that a “judicial determination” of joint tort-feasor status of employees of the releasing hospital after the conclusion of all proceedings in the case, when they were never joined as defendants or cross-defendants, is impermissible. On September 8, 2005, Troy Bennett, Geraldine Bennett, Keion Bennett, Tyshaun Bennett, and Adam Gross, Respondents, (hereinafter “the Bennetts”) filed a survival and wrongful death action in the Circuit Court for Baltimore City against Emergency Physician Associates of Maryland, P.C., Shoaib A. Hashmi, M.D., and The Good Samaritan Hospital of Maryland, Inc., in connection with the death of twenty-seven year old Adrian Tyree Bennett from septic shock. Subsequently, on November 16, 2005, by a First Amended Complaint and Election for Jury Trial, Respondents joined Roman Kostrubiak, M.D. as a defendant.

The Bennetts asserted that the health care providers failed to diagnose and appropriately treat Adrian’s methicillin-resistant staphylococcus aureus infection, 2 alleging the following: ⁷¹¹ 9. At all times hereinafter set forth, the Defendant, Roman Kostrubiak, M.D., (hereinafter “Kostrubiak”) was an agent and/or apparent agent, servant, or employee of Defendants, Emergency Physician Associates, P.C., and The Good Samaritan Hospital of Maryland, Inc. (hereinafter “Good Samaritan Hospital”). 10. At all times hereinafter set forth, the Defendant, Shoaib Hashmi, M.D., (hereinafter “Hashmi”) was an agent and/or apparent agent, servant, or employee of the Defendant, Good Samaritan Hospital. 11. On or about April 22, 2003, at approximately, 3:15 p.m., twenty-seven year old Adrian Bennett presented to the Good Samaritan Hospital with a chief complaint of nausea, vomiting, generalized weakness and a bump on the head. * * * 14.

At or about 7:30 p.m., Defendant, Kostrubiak discharged Adrian from the emergency room and admitted him to the hospital under the service of Defendant, Hashmi. At that time, pneumonia and gastroenteritis were on his differential diagnosis. Defendant Kostrubiak ordered Adrian Bennett to be placed on respiratory isolation. 15. At or about 2:30 a.m., Adrian Bennett was transferred to the medical floor of the hospital.

Defendant Hashmi was Adrian’s attending physician at the time. Defendant Hash-mi failed to recognize Adrian’s progressive septic state and treat same on the night of April 22 and through the morning of April 23, 2003. 16. At or about 4:00 a.m. on April 23, Adrian Bennett was administered a dose of Unasyn. On or about 10 a.m. on April 23, Adrian Bennett was administered his first dose of Vancomycin and Ceftriaxone. 17.

Periodically, throughout the early morning hours of April 23, 2003, Adrian was seen by the nurses. During this ⁷¹² time, Adrian continued to demonstrate signs of progressive sepsis. 18. The nurses called a resident physician, Dr. Sahi, at approximately 4 a.m. concerning Adrian’s then-condition. Dr. Sahi prescribed Ambien in response to the call. 19.

The nurses did not call any health care provider from 7:30 p.m. on April 22 until 4 a.m. on April 23. 20. At or around 9:30 a.m., Adrian received medical attention for his sepsis (from medical physicians) for the first time. By this time, Adrian was suffering from severe septic shock. 21. At or about 12:45 p.m., Adrian Bennett was pronounced dead after several rounds of cardiopulmonary resuscitation.

The Bennetts alleged that Dr. Kostrubiak negligently misdiagnosed and mistreated Adrian’s infection: 23. The Defendant, Roman Kostrubiak, M.D., was negligent and careless in the following respects: a. failed to properly and timely diagnose Adrian Bennett’s infection in the ER; b. failed to adequately treat Adrian Bennett’s infection in the ER; c. failed to call in appropriate and timely consults; d. failed to have Adrian Bennett admitted to the ICU; e. failed to order appropriate studies; and f. was otherwise negligent and careless. The Bennetts further alleged that Dr. Hashmi breached applicable standards of care: 24. The Defendant, Shoaib Hashmi, M.D. was negligent and careless in the following respects: a. failed to properly and timely diagnose Adrian Bennett’s septic state; b. failed to timely and adequately treat Adrian Bennett’s septic state; c. failed to call in appropriate consults; ⁷¹³ d. failed to timely assess Adrian Bennett; e. failed to order appropriate studies; f. failed to place Adrian Bennett in the ICU; and g. was otherwise negligent and careless.

Finally, the Bennetts alleged that Good Samaritan Hospital failed to timely diagnose and adequately treat Adrian’s infection and sepsis: 25. The Defendant, Good Samaritan Hospital, was negligent and careless in the following respects: a. failed to timely and adequately monitor and assess Adrian Bennett on the evening of April 22 and throughout the early morning of April 23; b. failed to timely call appropriate physicians for medical assistance on April 22 and April 23; c. failed to appropriately respond to nursing calls which were made; d. failed to properly and timely diagnose Adrian Bennett’s infection and septic state; e. failed to timely and adequately treat Adrian Bennett’s infection and septic state; f. failed to call in appropriate consults; g. failed to order appropriate tests; h. failed to timely recommend transfer to the critical care unit; i. failed to timely assess Adrian Bennett; and j. was otherwise negligent and careless. Dr. Kostrubiak along with Emergency Physician Associates of Maryland answered, as did Good Samaritan Hospital, generally denying liability, and asserting affirmative defenses including contributory negligence and assumption of risk. Dr. Hashmi also answered, generally denying liability and asserting contributory negligence and assumption of risk as affirmative defenses. ⁷¹⁴ On October 10, 2006, the complaints against Dr. Kostrubiak and Emergency Physician Associates of Maryland, as well as Good Samaritan Hospital, were dismissed with prejudice as a result of separate settlements, 3 in accordance with Rule 2-506(a). 4 The Bennetts executed a “Joint Tortfeasor Release,” discharging all claims against Emergency Physician Associates of Maryland and its employee, Dr. Kostrubiak, in exchange for $400,000. 5 The Good Samaritan “Settlement Agreement and Release,” 6 at issue in the present case, provided, in relevant part: RECITALS A. Plaintiffs filed a Statement of Claim in the Health Claims Arbitration Office of Maryland, HCA No.2005-418 naming, among other parties, Good Samaritan Hospital of Maryland, Inc., as a Defendant Health Care Provider and alleging negligent tortious acts and omissions by the parties named in the Statement of Claim.

The claim was waived out of Health Claims Arbitration and, on or about September 8, 2005, Plaintiffs filed a Complaint, Case No. 24-C-05-008202 OT in the Circuit Court for Baltimore City (the “Complaint”). ⁷¹⁵ B. The Releasing Parties identified herein and Good Samaritan Hospital of Maryland, Inc. ONLY desire to enter into this Settlement Agreement in order to provide for certain payments in full settlement and discharge of any and all claims which are or might have been the subject of the aforesaid Statement of Claim and Complaint against the Released Party identified herein on the terms and conditions set forth herein.... SECTION I Defínitions 2. The term “Released Party ” or “Releasee ” includes Good Samaritan Hospital of Maryland, Inc., and any partner, agent (actual or apparent), servant, employee, consultant, staff, or representative of the above named individual and entity, and its successors, predecessors, affiliates, principals, heirs, devisees, executors, assigns and insurers as well as all attending, resident or consulting physicians, nurses, nurse practitioners, therapists, aides, technicians, or other health care providers. The [tjerm “Released Party” does not include Shoaib Hashmi, M.D., the non-settling Defendant or any other Defendants who may have entered into separate Settlement Agreements or Releases with the Releasing Parties.

SECTION IY Other Claims 1. If a lawsuit is filed or a claim otherwise made, including claims already made, by the Releasing Parties against any other person, firm, professional association or corporation other than a released party released under this Settlement Agreement, the Releasing Parties hereby irrevocably consent that said claims against any party not released by this ⁷¹⁶ Settlement Agreement shall be reduced to the extent of the pro rata shares of the Released Party or the amount paid for this Settlement Agreement, whichever is greater, pursuant to the Maryland Uniform Contribution Among Tortfeasors [sic] Act (codified in Maryland Code Annotated, Cts. & Jud. Proc. Art. § 3-1401, et seq.

(2002 Repl.Vol.)[) ], that such reduction shall occur whether or not any or all of the parties released under this Settlement Agreement are determined to be joint tortfeasors with the parties not so released, and that this Settlement Agreement may be introduced into evidence before any tribunal by any party in order to establish consent to the reduction pursuant to that Act. For purposes of this paragraph, the Released Party shall be deemed to be a Joint Tortfeasor, jointly and severally liable to the Undersigned, to the same extent as if the Released Party has been adjudicated to be a Joint Tortfeasor by a final judgment of a court of record after trial on the merits. Dr. Hashmi, however, did not settle, nor did he file any third-party claim alleging that another party’s negligence contributed to Adrian’s death. 7 During the one-week trial that ensued regarding the claims against him, moreover, Dr. Hash-mi did not implicate any other Good Samaritan Hospital employee or any one else as responsible for Adrian’s allegedly deficient care and subsequent death. The jury returned a verdict in favor of the Bennetts, and the verdict sheet provided as follows, regarding Dr. Hashmi’s liability: 1.

Did Plaintiffs prove by a preponderance of the evidence that Dr. Hashmi was negligent in the course of his care of Adrian Bennett? ⁷¹⁷ YES If you answered “NO” to Question 1, STOP. If you answered “YES” to Question 1, GO TO Question 2. 2. Did Plaintiff prove by a preponderance of the evidence that Dr. Hashmi’s negligence in the course of his care of Adrian Bennett was a cause of Mr. Bennett’s injuries and death on April 23, 2003? YES Judgment was entered on the verdict against Dr. Hashmi in the amount of $2,295,000, although he, thereafter, filed a “Motion for Remittitur or to Reduce the Verdict,” asserting that the total verdict exceeded the statutory cap on noneconomic damages established in Section 11-108 of the Courts and Judicial Proceedings Article, Maryland Code (1973, 2006 RepLVol.). 8 He also filed a “Supplemental Memorandum in Support of Motion to Reduce Verdict,” claiming entitlement to an additional reduction, pursuant to the Maryland Contribution Among Joint Tort-Feasors Act. 9 In this regard, he asserted that he was entitled to contribution under the Act, not only from Emergency Physician Associates of Maryland and Dr. Kostrubiak, as well as Good Samaritan Hospital, but also from ⁷¹⁸ “[t]hree distinct actors employed by Good Samaritan Hospital,” namely (1) Dr. Hina Sahi, a hospital resident; 10 (2) Nurse Kathleen Bosse, a hospital floor nurse; 11 and (3) an unidenti ⁷¹⁹ fied emergency room nurse, Nurse A. 12 The Bennetts resisted the reduction by three more “shares” 13 by countering that the alleged joint tort-feasors, Dr. Sahi, Nurse Bosse, and Nurse A, “were never named as defendants, never admitted liability to Plaintiffs, and never were found liable to Plaintiffs by a court or jury” and posited ⁷²⁰ that the clear and unambiguous language of the Good Samaritan Release contemplated only one joint tort-feasor.

After a hearing, Judge Kaye A. Allison reduced the judgment to $1,795,000, pursuant to the statutory cap on noneconomic damages set forth in Section 11-108 of the Courts and Judicial Proceedings Article. With respect to the issue of increasing the contribution Dr. Hashmi was to receive from the three alleged joint tort-feasors, Judge Allison determined that the $1.7 million verdict would be divided among Emergency Physician Associates along with Dr. Kostrubiak, Good Samaritan Hospital, as well as Dr. Hashmi, for three shares rather than five shares, calculated on the basis of the three Good Samaritan employees, Dr. Kostrubiak along with Emergency Physician Associates, and Dr. Hashmi. Accordingly, judgment was entered against Dr. Hashmi in the amount of $598,333.33, representing his one-third joint tort-feasor share. Dr. Hashmi appealed to the Court of Special Appeals, and our colleagues on the intermediate appellate court affirmed in a reported opinion, Hashmi v. Bennett, 188 Md.App. 434 , 982 A.2d 818 (2009), reasoning that the language of the Good Samaritan Release clearly and unambiguously identified Good Samaritan Hospital as the joint tort-feasor and that “Dr. Sahi, Nurse Bosse, and Nurse A, as non-parties to the settlement agreement, could not attain joint tortfeasor status.” Id. at 451 , 982 A.2d at 828 .

Discussion When multiple tort-feasors cause harm to an injured party, the issue arises as to whether one of them may be held liable for all of the negligence, or whether each tort-feasor may individually be held responsible in a proportionate or equal manner for the injury. The right of contribution among negligent joint tort-feasors was not recognized at common law, so that a single tort-feasor could bear the entirety of the loss sustained by the injured party. 1 Stuart M. Speiser, Charles F. Krause, & Alfred W. Gans, The American Law of Torts § 3:15 (2003); see also William L. Prosser, Law of Torts 305-07 (4th ed.1971). The right of “contribution,” in contrast, ⁷²¹ enables a tort-feasor “to collect from joint tortfeasors when— and to the extent that—the tortfeasor has paid more than his or her proportionate share to the injured party.” Black’s Law Dictionary 378 (9th ed.2009). The common law rule endured criticism for foisting the entire obligation on one tort-feasor, rather than “achieving equal or proportionate distribution of the common burden,” and was abrogated in many states, including Maryland, by the enactment of the Uniform Contribution Among Tortfeasors Act, promulgated by the National Conference of Commissioners on Uniform State Laws in 1939.

Unif. Contribution Among Joint Tortfeasors Act, Prefatory Note, 12 U.L.A. 196 (2008). The Act was developed to promote “some common policy” to legislatively establish contribution among joint tortfeasors. Id.

Section 3-1401 of the Act defines “joint tort-feasors” as follows: (c) Joint tort-feasors.—“Joint tort-feasors” means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them. Section 3-1402 codifies the right of contribution among joint tort-feasors, providing: (a) In general.—The right of contribution exists among joint tort-feasors. (b) Discharge of liability or payment of share.—A joint tort-feasor is not entitled to a money judgment for contribution until the joint tort-feasor has by payment discharged the common liability or has paid more than a pro rata share of the common liability. Section 3-1403 abrogates the prior rule, in which the recovery of a judgment against one joint tort-feasor discharged any other joint tort-feasors: The recovery of a judgment by the injured person against one joint tort-feasor does not discharge the other joint tortfeasor. ⁷²² Section 3-1404 describes the effect of a release on nonsettling joint tort-feasors, namely reducing the claim either “in the amount of the consideration paid” or the “proportion by which the release provides”: A release by the injured person of one joint tort-feasor, whether before or after judgment, does not discharge the other tort-feasors unless the release so provides, but it reduces the claim against the other tort-feasors in the amount of the consideration paid for the release or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.

Section 3-1405 states that a release of one joint tort-feasor may extinguish the right of contribution, so long as the release provides for a reduction in any recovery by the injured party of the pro rata share of the released tort-feasor: A release by the injured person of one joint tort-feasor does not relieve the joint tort-feasor from liability to make contribution to another joint tort-feasor unless the release: (1) Is given before the right of the other tort-feasor to secure a money judgment for contribution has accrued; and (2) Provides for a reduction, to the extent of the pro rata share of the released tort-feasor, of the injured person’s damages recoverable against all other tort-feasors. In the context of these contribution statutory provisions, Dr. Hashmi, not a party to the Good Samaritan Release, claims that the Release language is ambiguous, because it refers to multiple hospital employees and agents in defining “Released Party” or “Releasee.” As a result, Dr. Hashmi contends that the Release actually refers to three distinct joint tort-feasors, namely Dr. Sahi, Nurse Bosse, and Nurse A. The Bennetts, who were parties to the Release, counter that the Release unambiguously refers to Good Samaritan Hospital as “a Joint Tortfeasor” and that Dr. Hashmi “never proved (or even attempted to prove) ... that any specific Good Samaritan agents were separate individual joint tortfeasors, i.e. were negligent and caused Mr. Bennett’s death.” ⁷²³ In construing the Good Samaritan Release, we resort to principles of contract interpretation. Owens-Illinois, Inc. v. Cook, 386 Md. 468, 496 , 872 A.2d 969, 985 (2005). The principle of the objective interpretation of contracts governs, Clancy v. King, 405 Md. 541, 557 , 954 A.2d 1092, 1101 (2008), quoting Cochran v. Norkunas, 398 Md. 1, 16 , 919 A.2d 700, 710 (2007), so that if a release is clear and unambiguous, “there is no room for construction, and a court must presume that the parties meant what they expressed.” Cook, 386 Md. at 496 , 872 A.2d at 985 (citation omitted). “Under the objective law of contract interpretation, the court will give force and effect to the words of the contract without regard to what the parties to the contract thought it meant or what they intended it to mean.” Langston v. Langston, 366 Md. 490, 507 , 784 A.2d 1086, 1095 (2001).

Our task when interpreting a contract is to “[determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated.” Calomiris v. Woods, 353 Md. 425, 436 , 727 A.2d 358, 363 (1999) (citation omitted). Dr. Hashmi emphasizes that the definition of “Released Party” or “Releasee” in Section I encompasses all hospital employees and agents, with the exception of himself, as follows: The term “Released Party” or “Releasee” includes Good Samaritan Hospital of Maryland, Inc., and any partner, agent (actual or apparent), servant, employee, consultant, staff, or representative of the above named individual and entity, and its successors, predecessors, affiliates, principals, heirs, devisees, executors, assigns and insurers as well as all attending, resident or consulting physicians, nurses, nurse practitioners, therapists, aides, technicians, or other health care providers. The [t]erm “Released Party” does not include Shoaib Hashmi, M.D., the non-settling Defendant or any other Defendants who may have entered into separate Settlement Agreements or Releases with the Releasing Parties. ⁷²⁴ As a result, he contends, the Release language is ambiguous regarding whether a single joint tort-feasor share or multiple shares for Dr. Sahi, Nurse Bosse, and Nurse A are included. In contrast, the Bennetts highlight the language of Section IV of the Release, which identifies Good Samaritan Hospital as “a Joint Tortfeasor,” as follows: If a lawsuit is filed or a claim otherwise made, including claims already made, by the Releasing Parties against any other person, firm, professional association or corporation other than a released party released under this Settlement Agreement, the Releasing Parties hereby irrevocably consent that said claims against any party not released by this Settlement Agreement shall be reduced to the extent of the pro rata shares of the Released Party or the amount paid for this Settlement Agreement, whichever is greater, pursuant to the Maryland Uniform Contribution Among Tortfeasors [sic] Act (codified in Maryland Code Annotated, Cts. & Jud.

Proc. Art. § 3-1401, et seq. (2002 Repl.Vol.)[) ] .... For purposes of this paragraph, the Released Party shall be deemed to be a Joint Tortfeasor, jointly and severally liable to the Undersigned, to the same extent as if the Released Party has been adjudicated to be a Joint Tortfeasor by a final judgment of a court of record after trial on the merits.

It is true that Section I defines “Released Party” or “Releasee” globally, releasing all employees and agents of Good Samaritan Hospital, with the exception of Dr. Hashmi. Section TV, however, identifies Good Samaritan Hospital, the “Released Party” as “a Joint Tortfeasor,” such that the Release both broadly encompasses hospital employees and agents, while nevertheless representing one joint tort-feasor share. Our interpretation comports with that of our colleagues on the intermediate appellate court, who determined that the Release clearly and unambiguously identifies Good Samaritan Hospital only as “a joint tort-feasor.” As the Court of Special Appeals aptly noted, “an agreement could only determine joint tort-feasor status of one who was a party thereto,” 188 Md. ⁷²⁵ App. at 451, 982 A.2d at 828 , quoting Jacobs v. Flynn, 131 Md.App. 342, 371 , 749 A.2d 174, 189 (2000), and only the Bennetts and Good Samaritan Hospital were parties to the Release. Thus, we decline to embrace Dr. Hashmi’s tortured analysis, as the Release contains no admission or other statement that Dr. Sahi, Nurse Bosse, or Nurse A are deemed to be joint tort-feasors. 14 Even if we were to determine that the Good Samaritan Release was ambiguous, we would not countenance the separate, post-trial proceeding Dr. Hashmi proposes, in which he suggests that the proffer of evidence in a separate post-judgment judicial proceeding against Dr. Sahi, Nurse Bosse, and Nurse A, who are not parties to the action, would be sufficient to establish their status as joint tort-feasors in order to reduce his