Rivera v. Prince George's County Health Department

CATHELL, Judge. Appellant, Keisha T. Guadalupe Rivera, a minor, bringing suit by her mother and next friend, Maria Rivera, appeals the judgment of the Circuit Court of Prince George’s County (Femia, J.), that granted appellee’s, Dr. Soo Young Oh’s, Motion for Summary Judgment, and granted appellee’s, Prince George’s County Health Department’s, Motion to Dismiss. Appellant alleges that appellees were negligent in their medical treatment and care of Maria Rivera during the time she was pregnant and expecting appellant’s birth. The Health Department contends that it is immune from liability in this case.

Dr. Oh denies liability. Alleging error in the trial court’s judgment in favor of appellees, appellant poses the following questions for our review: I. Did the trial court err in ruling that the plaintiffs claims against the Health Department were barred by the doctrine of sovereign immunity? A. Pursuant to Maryland Code Annotated, Article 48A, section 480 if a defendant is both a charitable corporation and a governmental agency is the insurer of the defen ⁴⁶¹ dant estopped only from asserting that the insured is exempt as a charitable institution or is the insurer also estopped from asserting that the defendant is exempt as a governmental agency? B. May the action be brought pursuant to the Maryland Tort Claims Act?

C. Are the claims brought on behalf of Keisha Rivera barred as a consequence of the failure of the claimant to submit a written claim to the State Treasurer within 180 days after the injury to Keisha that is the basis of the claim? D. Are the claims brought on behalf of Keisha Rivera barred as a consequence of the failure of the claimant to submit any written claim to the State Treasurer?

II

Does the decision of the trial court dismissing the claims brought on behalf of Keisha Rivera against the Health Department bar any further claim or action brought by or on behalf of Keisha Rivera pursuant to the law of the case doctrine?

III

Does the release of Roberto Casas, M.D. operate to release the Health Department from liability asserted upon the doctrine of respondeat superior?

IV

Did Dr. Oh as the obstetrical attending physician have the right to control the conduct of the hospital residents such that he is liable for their negligence, and was his conduct in failing to properly exercise that control negligent? [1] On September 5, 1978, at 2:30 a.m. and 10:00 a.m., a pregnant Maria Rivera (“Ms. Rivera”), appellant’s mother, went to Prince George’s County Hospital Center (“the Hospital”), complaining of ruptured membranes and pains occurring ten minutes apart. She was examined by a hospital resident on both occasions and instructed to return home. Later that ⁴⁶² evening, Ms. Rivera sought treatment at a clime operated by the Prince George’s County Health Department (“the Health Department”) for the same symptoms. Dr. Roberto Casas examined Ms. Rivera and similarly instructed her to go home.

Two more visits to the Hospital on September 7, 1978 produced similar recommendations. Ms. Rivera was then taken to the Hospital the next morning by ambulance. She was admitted at 7:15 a.m. with evidence of fetal distress. A caesarean section was ultimately performed and completed by 9:25 a.m.

It was at this point that Dr. Oh was called to approve performance of the operation, as he was the “on call” physician during the first two weeks of September 1978. He is listed on the operative record as a “stand-by” physician. This both began and ended the extent of Dr. Oh’s contact with the child. The minor appellant was subsequently diagnosed as suffering from severe mental retardation caused by “hypoxia,” a condition where an infection invades the uterus and deprives the fetus of oxygen.

This damage to the child had, therefore, necessarily occurred before the caesarean section was performed. It was determined by expert testimony that a majority of the damage to the child occurred by September 8 at 7:35 a.m. and had undoubtedly been complete by 8:38 a.m., before the caesarean section was performed. There was some dispute as to the exact time Dr. Oh first became aware of Ms. Rivera’s condition. As the decision to perform the caesarean section was confirmed at 8:38 a.m. on September 8, it was adduced at trial that he was first contacted sometime between 8:15 a.m. and that time.

There was no allegation of any delay on Dr. Oh’s part or any negligent conduct by him after he was called. On January 29, 1990, a claim was filed with the Health Claims Arbitration Office (“HCAO”) on behalf of appellant by her mother and next friend, Ms. Rivera, and on behalf of Ms. Rivera, individually. 2 Listed as defendants in the action were ⁴⁶³ the Hospital, Dr. Oh, the Health Department, and Dr. Casas. The Health Department’s Motion to Dismiss was granted by the Health Claims Arbitration Panel on January 18, 1991. Appellant filed a Notice of Rejection of Award and Action to Nullify the Health Claims Arbitration Award on April 8, 1991.

An action commenced in the Prince George’s County Circuit Court was stayed pending arbitration of the remaining claims. Appellant entered into settlement agreements with Dr. Casas and the Hospital on April 28, 1992. On April 29, 1992, a Motion for Summary Judgment was then granted by HCAO in favor of Dr. Oh. A second Notice of Rejection and Action to Nullify was filed.

In the circuit court, the Health Department once again moved to dismiss the case, based on a defense of sovereign immunity. In the alternative, the Health Department argued that a release of Dr. Casas, its agent, operated to release the Health Department as his principal. Dr. Oh similarly renewed his Motion for Summary Judgment, denying any negligent conduct or a lack of proximate cause thereof. A January 7, 1994 hearing resulted in a grant of both of appellees’ motions by the circuit court.

This appeal was then timely filed. I Appellant assigns error in the trial court’s judgment that her claim against the Department is barred by the doctrine of sovereign immunity. 3 Before the trial judge, she claimed that, in accordance with Maryland law, sovereign immunity had been waived; she had been given permission to sue the State and/or its instrumentalities and provision for the payment of judgments had been made. See Jackson v. Housing Opportunities Comm’n, 289 Md. 118, 123 , 422 A.2d 376 ⁴⁶⁴ (1980). She asserts that the waiver can be found in Article 48A, § 480 of the Annotated Code of Maryland (1957, 1994 Repl.Vol), which involves charitable immunity. 4 Appellant is mistaken in relying thereon for several reasons.

Appellant contends that, according to Cotham v. Board of County Comm’rs, 260 Md. 556 , 273 A.2d 115 (1971) (a case involving a hospital operated by the county), “when there’s [a] specific waiver as to charitable immunity it doesn’t matter whether it’s a governmental entity. The charitable immunity applies.” We reject that contention. While there can be no doubt that the Health Department is a governmental entity, and appellant concedes as much, the characterization of the Health Department as a charitable institution is less clear. 5 An organization’s charitable status is determined by an “examination of the stated purposes of the organization, the actual work performed, the extent to which the work performed benefits the community and the public welfare in general, and the support provided by donations.” Supervisor of Assessments v. Group Health Ass’n, Inc., 308 Md. 151,157 , 517 A.2d 1076 (1986). The Health Department is not a separate entity operated by the county as a proprietary function, nor is it supported by donations.

Rather, it is established and supported as an agency with public tax-generated funds. It performs governmental functions. These facts would tend to preclude its inclusion within the category of charitable organizations. ⁴⁶⁵ Therefore, any argument predicated upon a charitable immunity theory is inapposite in the case sub judice. 6 Appellant, however, argues that, once the Health Department stated that it was charitably immune in its Answer, it became bound thereby and cannot now argue to the contrary. See Thomas v. Solis, 263 Md. 536 , 544 n. 4, 283 A.2d 777 (1971); Matthews v. Kernewood, Inc., 184 Md. 297, 306 , 40 A.2d 522 (1945); Parker v. Tilghman v. Morgan, Inc., 170 Md. 7, 25 , 183 A. 224 (1936); People’s Counsel v. Mangione, 85 Md.App. 738, 745-46 , 584 A.2d 1318 (1991).

An organization or institution is either charitable or it is not. It is patently clear that the Health Department is a public governmental agency and, in performing its function as such, is providing governmental, not charitable, services. The Health Department, despite the fact that some of its governmental features may resemble charitable services offered by private entities, encompasses no separate and distinct “charitable” features within the meaning of the phrase. Accordingly, it cannot waive its immunity, particularly by way of an erroneous assertion contained in a pleading.

See Maryland Rule 2-324(a). The trial court, therefore, correctly held that the Health Department was immune from liability by virtue of its status as an entity of the sovereign, absent any waiver thereof. See Condon, 332 Md. at 492, 632 A.2d 753 (“The doctrine is applicable to the State’s agencies and instrumentalities, unless the legislature has explicitly or by implication waived governmental immunity.” (citing Godwin v. County Comm’rs, 256 Md. 326, 334 , 260 A.2d 295 (1970)). ⁴⁶⁶ We, therefore, now turn to the issue of whether sovereign immunity was waived in this case. In so doing, we pay close attention to Judge Rodowsky’s comments in Jackson v. Housing Opportunities Comm’n, 289 Md. at 123 , 422 A.2d 376 : A court should not hold that immunity has been waived except in cases of positive consent given, or by necessary and compelling implication.

Any waiver of immunity must come from the Legislature whose intent we strive to effectuate. The test is two pronged. An asserted waiver of immunity is ineffective “unless specific legislative authority to sue the agency has been given, and unless there are funds available for the satisfaction of the judgment, or power reposed in the agency for the raising of funds necessary to satisfy a recovery against it.” [Katz v. Washington Suburban Sanitary Comm’n, 284 Md. 503, 513 , 397 A.2d 1027 (1979) ]. See also State v. Harris, 327 Md. 32 , 607 A.2d 552 (1992).

Appellant’s first contention, that the “specific legislative authority to sue” the Health Department “is found by necessary and compelling implication in the language of Article 48A, section 480,” is erroneous. Not only do courts of this State disfavor waiver by implication, but we have also previously stated the general inapplicability of the aforementioned statutory provision to this case. Appellant, however, alternatively cites, as authority to institute and maintain the action against the Health Department, the Maryland Tort Claims Act (MTCA), Maryland Code (1984, 1993 Repl.Vol.) §§ 12-101 to 12-110 of the State Government Article (SG). 7 It is to this that we now turn. The MTCA was enacted by the General Assembly in 1981 by Chapter 298 of the Acts of 1981 with a view to “affording] a remedy for individuals injured by tortious conduct attributable to the State.” Condon, 332 Md. at 492 , 632 A.2d 753 . ⁴⁶⁷ Until its enactment and absent its applicability, the State and its various agencies could not be sued without legislative authorization and an availability of funds.

See Board v. John K. Ruff, Inc., 278 Md. 580 , 366 A.2d 360 (1976); University of Maryland v. Maas, 173 Md. 554 , 197 A. 123 (1938). The 1981 version of the Act contained a limited waiver of the State’s sovereign immunity in certain tort actions to the extent of coverage by a program of insurance established by the State Treasurer. By Chapter 538 of the Acts of 1985, the General Assembly amended the MTCA to broaden the State’s liability by extending the waiver of immunity to tort actions generally. Unlike the original Act, however, which allowed a claimant to file a claim anytime within the three year limitations period and, on occasion, even after its expiration, the 1985 amendments significantly narrowed the time within which claims could be filed under the Act.

See, generally, Condon, 332 Md. at 492-94 , 632 A.2d 753 ; Simpson v. Moore, 323 Md. 215, 218-219 , 592 A.2d 1090 (1991). See also Dean v. Board of Educ., 71 Md.App. 92, 101 , 523 A.2d 1059 (1987). As it now stands, claimants must file a written claim with the State Treasurer “within 180 days after the injury to [the] person or property that is the basis of the claim....” 8 SG § 12-106. See also Simpson v. Moore, 323 Md. 215, 219 , 592 A.2d 1090 (1991) (Filing a claim within 180 days after injury is a condition precedent to bringing an action under the Maryland Tort Claims Act.). “The whole purpose of the notice requirement [is] to enable the public body to make a timely investigation of the facts in order ‘to ascertain the character and extent of the injury and its responsibility in connection with it.... ’” Dean, 71 Md.App. at 99 , 523 A.2d 1059 (quoting Jackson v. Board of County Comm’rs, 233 Md. 164, 167 , 195 A.2d 693 (1963)). ⁴⁶⁸ Appellant places heavy reliance on Foor v. Juvenile Servs.

Admin., 78 Md.App. 151 , 552 A.2d 947 , cert. denied, 316 Md. 364 , 558 A.2d 1206 (1989), for the proposition that her case was appropriately brought as an action “filed on or after July 1,1985,” within the meaning of Act, as amended. In Foot, the cause of action arose in 1983, when the original MTCA was in effect, but suit was brought in 1986, following amendment thereof. The State sought to bar the Foors from recovery by arguing that the 1981 Act governed the cause of action and its sovereign immunity remained intact. Chief Judge Wilner, writing for this Court, iterated the legislative intent underlying such legislation and concluded that, in sharp contrast to prior, as well as similar legislation on the subject, the 1985 amendment had expanded certain aspects of the MTCA.

We held that the amendment, which simply stated that it “shall take effect July 1, 1985,” was intended “to apply to actions filed on or after July 1, 1985, and not just to actions accruing after that date.” 9 Foot, 78 Md.App. at 162-64 , 552 A.2d 947 . The Foors, therefore, were permitted to proceed within the ambit of the 1985 Act and obtain recovery based thereon. It was, however, not necessary in Foor to point out that, while the cause of action at issue arose prior to the date of the 1985 amendment, it did so during a period when sovereign immunity could be waived, i.e., 1983, provided certain procedural requirements were met. In the case sub judice, the cause of action arose in 1978 (though the claim was not filed in the HCAO until 1990), prior to enactment of any of the State Tort Claims Acts, at a time when immunity had not yet been waived by any statute.

Appellant now seeks to use our interpretation of the 1985 amended Act in Foor to provide justification for filing a claim against appellees more than eleven and one-half years after the injury occurred—an injury that occurred at a time during which sovereign immunity was in full effect. As previously stated, we distinguish that case by the fact that the original ⁴⁶⁹ cause of action in Foot arose at a time when some version of the MTCA was in effect, while in the case sub judice, the cause of action arose prior to any enactment of any applicable statute waiving state tort immunity. Moreover, we need not even address under which State Act appellant may proceed, as she failed to comply with the filing requirements mandated by both versions. Under the 1981 MTCA, litigants were required to file a claim with the State Treasurer at any time within the three year statute of limitation.

This would have required the mother’s claim to be filed by 1984. 10 Under the 1985 amended Act, however, appellant is required to file a notice within 180 days of the injury. Even if appellant could bring a cause of action following enactment of the 1985 amendments, roughly seven years after the injury occurred, she would have been required to give notice or file within 180 days of the effective date of the amendment or by about January 1, 1986. 11 Her filing in 1990 therefore clearly falls outside the applicable notice period and comes too late to preserve any remedy. While it is true that SG § 12-102 contemplates broad construction of the MTCA “to assure that injured parties have a remedy,” we will not extend or suspend the filing requirements when they are so clear and unambiguous. In so ⁴⁷⁰ stating, we are mindful of the Court of Appeals’s admonition that the MTCA cannot serve as a springboard for judicial legislation.

Provisions such as this, and the canon of construction favoring a liberal interpretation of remedial legislation, are helpful in resolving ambiguities in statutes, but do not permit us to expand the statute to afford relief where the words of the statute bar that relief. Simpson, 323 Md. at 227 , 592 A.2d 1090 . Appellant cites Dean v. Board of Educ., supra, in support of suspension of the filing requirement in the case sub judice. Dean, however, is inapposite, as it did not involve any version of the MTCA. .Rather, the law at issue in Dean was Maryland Code (1974, 1989 Repl.Vol.) § 5-306 of the Courts and Judicial Proceedings Article, predecessor of the current § 5-404, which applied to claims for unliquidated damages made against a county or municipal organization.

Section 5-306 was originally a public local law applicable only to Montgomery County, and was ultimately repealed and later readopted to apply throughout the State. The statutory provision involved in Dean permitted, “for good cause shown and in the absence of prejudice to the defendant,” entertainment of the action even in the absence of the requisite notice. See Dean, 71 Md.App. at 96 , 523 A.2d 1059 . No such “escape” mechanism exists in the MTCA. 12 ⁴⁷¹ Nevertheless, “substantial compliance with the requirements of the MTCA is sufficient to satisfy the condition precedent to the State’s waiver of sovereign immunity.” Con-away v. State, 90 Md.App. 234, 242 , 600 A.2d 1133 (1992).

Simpson v. Moore, 323 Md. 215 , 592 A.2d 1090 , is illustrative in this regard. There, a wrongful death claim against the State was filed three years after the deceased was killed, outside the requisite 180-day time frame. The claimant sought to carve out of SG § 12-106 the exceptions to the notice provisions contained in § 5-306—namely, for good cause and lack of prejudice to the defendant—so as to permit an excuse for late filing. Judge McAuliffe, speaking for the Court, refused to “ ‘judicially place in the statute language which is not there’ in order to avoid a harsh result.” 323 Md. at 225 , 592 A.2d 1090 (quoting Gotham, 260 Md. at 565 , 273 A.2d 115 ).

The Court noted that, despite the dissatisfaction presented by the 180-day requirement, it was for the legislature to resolve; “ ‘[t]o supply omissions transcends the judicial function.’ ” Id. at 228, 592 A.2d 1090 (quoting Iselin v. United States, 270 U.S. 245, 251 , 46 S.Ct. 248, 250 , 70 L.Ed. 566 (1926)). Following an analysis of the Act’s legislative history, the Court concluded: In the absence of statutory authority to excuse the late filing, the claim against the State must fail. The doctrine of substantial compliance has no application to an outright failure to comply, and compliance in this case was a condition precedent to the maintenance of a claim against the State. Id. at 228-29, 592 A.2d 1090 .

It is uncontroverted that appellant filed nothing with the State Treasurer at any time. She commenced her action against appellees when she filed her claim with the Health Claims Arbitration Office in January of 1990. There is no suggestion or evidence that appellant complied with the filing requirements in any respect. Compliance with the conditions laid out in SG § 12-106 is mandatory to a waiver of sovereign immunity.

Absent such compliance, the immunity remains intact. ⁴⁷² The trial court granted the Health Department’s Motion to Dismiss. A motion to dismiss lies where there is no justiciable controversy. Broadwater v. State, 303 Md. 461, 467 , 494 A.2d 934 (1985). Judge Harrell, speaking for this Court in Tafflin v. Levitt, 92 Md.App. 375, 379 , 608 A.2d 817 , cert. denied, 328 Md. 447 , 614 A.2d 974 (1992), set forth our standard of review of such motions: “The appropriate standard of review of the grant or denial of a motion to dismiss is whether the well-pleaded allegations of fact contained in the complaint, taken as true, reveal any set of facts that would support the claim made.” (citing Flaherty v. Weinberg, 303 Md. 116, 135-36 , 492 A.2d 618 (1985)).

See also Waller v. Maryland National Bank, 95 Md.App. 197, 234-35 , 620 A.2d 381 , vacated on other grounds, 332 Md. 375 , 631 A.2d 447 (1993). Moreover, “[i]f any material facts alleged in [the] complaint tend to support her right to recover, the order to dismiss must be reversed; we limit our consideration ... to allegations of fact and the inferences deducible therefrom, and not ‘merely conclusory charges.’ ” Lee v. Denro, Inc., 91 Md.App. 822, 828 , 605 A.2d 1017 (1992) (quoting Parker v. The Columbia Bank, 91 Md.App. 346 , 604 A.2d 521 , cert. denied, 327 Md. 524 , 610 A.2d 796 (1992)). Although the trial court failed to enumerate the grounds on which the grant was made, we look to all allegations and hold that, indeed, no “justiciable controversy” existed. We see nothing to support a claim against the Health Department and, therefore, see no error in the trial court’s grant of the Health Department’s Motion to Dismiss.

II In posing her second issue, appellant seeks to exact from this Court, in essence, a determination as to whether her claims would be barred by the doctrine of res judicata in a subsequent action by virtue of the grant of the Motion to Dismiss. Appellant alleges that the trial court granted the motion based on the fact that the MTCA is not applicable to appellant’s cause of action. She believes, however, that the MTCA does apply, and that a grant of the motion should have ⁴⁷³ been based, instead, on the fact that she failed to comply with the 180 day filing requirement. Appellant fears that “[t]he erroneous ground relied on by the trial court could defeat forever the claims made on [her] behalf ... against the Department were the decision of the trial court not appealed.” The trial court failed to enunciate its rationale for granting the Health Department’s motion. 13 Therefore, any review thereof would be mere surplusage.

Moreover, we hesitate to address such an inquiry, as it would require us to issue an advisory opinion. “[T]he addressing of non-justiciable issues would place courts in the position of rendering purely advisory opinions, a long forbidden practice in this State.” Halt v. Anderson, 297 Md. 42, 46 , 464 A.2d 1076 (1983). “[A] controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.” Id. at 45-46 , 464 A.2d 1076 (citing Reyes v. Prince George’s County, 281 Md. 279, 288 , 380 A.2d 12 (1977)). Having previously determined that no justiciable controversy exists in the case sub judice respecting appellant’s claim against the Health Department, we further hold that we are precluded from addressing this portion of appellant’s case. 14 Ill Appellant alleges that the Health Department improperly relies on the release of Dr. Casas to disclaim liability. Although we hold that the Health Department is immune from liability and appellant failed to take any proper action to ⁴⁷⁴ invoke a waiver of that immunity, we address this issue to clarify the law underlying it. The Health Department believes that appellant’s release of Dr. Casas also operated to release it, as his principal, from liability.

Appellant seeks instead to obtain judgment against the Health Department notwithstanding the release. At issue is the fundamental difference between the vicarious liability of a master for the negligent acts of a servant and the joint liability of two or more negligent actors who act in concert to produce harm. We set forth the pertinent language of the release: SETTLEMENT AGREEMENT AND JOINT TORTFEASOR RELEASE 1.1 In consideration of the payments set forth in Section 2, Claimant Keisha T. Guadalupe Rivera, a Minor, by her Mother and Next Friend, Maria D. Rivera, and Maria D. Rivera, Individually, hereby release and forever discharge Health Care Provider, Roberto Casas, M.D., his Insurers, his heirs, executors, administrators, and assigns from any and all claims, demands, obligations, actions or causes of action, whether existing in law or in equity, for all damages, costs, pain and suffering, expenses, compensation, consequential damages of any other thing whatsoever, whether now known or unknown, which Claimants presently have or in the future may have by reason of any matter relating to the alleged negligent acts and omissions of the Health Care Provider, Roberto Casas, M.D. which are the subject of the lawsuit captioned, in the Health Claims Arbitration Office of Maryland, HCA Number 89-401. The release and discharge and the payments to be made shall a fully binding and complete settlement agreement between the parties to this Settlement Agreement and Joint Tortfeasor Release all parties represented by or claiming through the Claimants.

It is further understood and agreed that the Claimants are not releasing any claims, demands, actions and causes of ⁴⁷⁵ action, which have been accrued or may hereinafter accrue to the Claimant against ... [the] Prince George’s County Health Department and Soo Young Oh, M.D---- It is understood and agreed that this payment made is not to be construed as an admission of liability on the part of the Releasee; however, the Releasee, Roberto Casas, M.D. is deemed to be a joint tortfeasor for the purposes of this Release.... Appellant argues that the Health Department should be characterized as a “joint tortfeasor” within the meaning contemplated by the Uniform Contribution Among Joint Tortfeasors Act (UCATA), codified in the Annotated Code of Maryland (1957,1994 Repl.Vol.), Article 50, §§ 16-24. 15 The Health Department, on the other hand, seeks characterization of its relationship with Dr. Casas as that of a principal and an agent so that it may reap the benefits flowing therefrom. It states that “[t]he only liability asserted against [it] is vicarious liability for the acts of its alleged agent, Roberto Casas, M.D.” We, therefore, turn to whether the Health Department’s liability is derived from a joint or a vicarious relationship with Dr. Casas. Joint liability is predicated on the existence of two or more individuals who have each committed wrongs and are both legally responsible for the damage caused to a person or property by the commission of those wrongs.

Vicarious liability is, instead, the attribution of a wrongdoer’s actions to an innocent third party by virtue of the relationship between the wrongdoer and the third party. ⁴⁷⁶ The rules of vicarious liability respond to a special need in the law of torts: how to fully compensate an injury caused by the act of a single tortfeasor. Upon a showing of agency, vicarious liability increases the likelihood that an injury will be compensated, by providing two funds from which a plaintiff may recover. If the ultimately responsible agent is unavailable or lacks the ability to pay, the innocent victim has recourse against the principal. If the agent is available or has means to pay, invocation of the doctrine is unnecessary because the injured party has a fund from which to recover.

The system of contribution among joint tortfeasors, of which the [UCATA]’s apportionment rules are a key component, has arisen completely apart from the system of vicarious liability and indemnity and meets an entirely distinct problem: how to compensate an injury inflicted by the acts of more than one tortfeasor. Unlike the liability of a principal, the liability of a joint tortfeasor is direct (because the tortfeasor actually contributed to the plaintiffs injury) and divisible (since the conduct of at least one other also contributed to the injury). [Emphasis added.] Mamalis v. Atlas Van Lines, Inc., 522 Pa. 214 , 560 A.2d 1380, 1383 (1989) (quoting Mamalis v. Atlas Van Lines, Inc., 364 Pa.Super. 360 , 528 A.2d 198, 200-01 (1987)). 16 With regard to either form of culpability, a release of the tortfeasor’s liability may be effected in order to discharge a party’s obligations to the injured party. The question then becomes: to whom does the release extend? At common law, two rules governed the release of parties in a case.

First, the release of one joint tortfeasor released all other potentially liable parties. Gunther v. Lee, 45 Md. 60, 67 (1876). See also Swigert v. Welk, 213 Md. 613 , 133 A.2d 428 (1957); Loh v. Safeway Stores, Inc., 47 Md.App. ⁴⁷⁷ 110 , 422 A.2d 16 (1980). Second, the release of an agent automatically released the principal.

The former rule was statutorily abrogated in Maryland in 1941 with the adoption of the UCATA. The latter rule remains unchanged. The UCATA applies solely to joint tortfeasors, ie., more than one direct wrongdoer. As such, its provisions do not come into play unless the party released is a “joint tortfeasor” as contemplated by § 16 of the statute. 17 Enactment of the UCATA provided that a joint tortfeasor, who previously was released from liability upon the release of a cotortfeasor, continued to be liable to the injured party, regardless of whether a release of a co-tortfeasor had been executed. 18 UCATA § 19; Martinez v. Lopez, 300 Md. 91, 102 , 476 A.2d 197 (1984); Loh v. Safeway Stores, Inc., 47 Md.App. at 118 , 422 A.2d 16 .

Indeed, a co-tortfeasor remains liable unless specific language in the release states otherwise. Oftentimes, courts resort to the actual language of the release to determine a settling defendant’s liability where it has not been determined by a trier of fact. 19 Accordingly, the issue becomes: what is the effect of a settling defendant’s agreement to be classified as a “joint tortfeasor” on the nonsettling defendant? ⁴⁷⁸ It is axiomatic that the contractual agreement between a plaintiff and a co-defendant cannot serve to define the liability of another co-defendant not a party to the agreement. Appellant and Dr. Casas cannot simply agree that Dr. Casas will be deemed a “joint tortfeasor” and contemplate that the Health Department be taken as the party with whom Dr. Casas “joined” in acting tortiously, as the word “joint” necessarily implies the existence of two or more within § 16’s definition. Appellant alleges that the Health.

Department acted in the capacity of a joint tortfeasor. As an independent basis on which to find the Health Department liable, appellant now states that complete examinations were not performed on Maria Rivera at the [Health Department] clinic because necessary supplies, i.e. nitrazine paper, had been exhausted. When supplies were exhausted it was the policy of the clinic to send patients to the hospital. While that procedure was followed in this case, it is alleged that the Department was negligent in failing to adequately supply the clinic and that this negligence contributed to the damages alleged.

Dr. Casas had nothing to do with the shortage of supplies at the clinic. [Emphasis added.] Appellant raises this argument for the first time on appeal. It was not raised in her Second Amended Complaint, on which the trial court ruled, or in any other pleading submitted to the court. We will not decide an issue “unless it plainly appears by the record to have been raised in or decided by the trial court....” Md. Rule 8-131(a). See also State v. Hutchinson, 287 Md. 198, 202 , 411 A.2d 1035 (1980); Adams v. Wilson, 264 Md. 1, 11 , 284 A.2d 434 (1971); Young v. State, 220 Md. 95, 98-99 , 151 A.2d 140 (1959), cert. denied, 363 U.S. 853 , 80 S.Ct. 1634 , 4 L.Ed.2d 1735 (1960); Passamichali v. State, 81 Md.App. 731, 737 , 569 A.2d 733 (1990), cert. denied, 319 Md. 484 , 573 A.2d 808 (1990).

This Court has stated, however, that whether to review an issue not raised and decided below is discretionary with the appellate court. Booth v. State, 62 Md.App. 26, 38 , 488 A.2d 195 (1985), aff'd, 306 Md. 313 , 508 ⁴⁷⁹ A.2d 976 (1986). This discretion should be exercised in favor of review when the “unobjected to error [is] compelling, extraordinary, exceptional or fundamental.... ” Smith v. State, 64 Md.App. 625, 632 , 498 A.2d 284 (1985) (quoting Hutchinson, 287 Md. at 203 , 411 A.2d 1035 (bracketed material in original)) (both Booth, supra, and Hutchinson, supra, were plain error-instruction cases). It is clear that no such exceptional or compelling error presents itself in the case sub judice and, therefore, appellant’s characterization of the Health Department as a joint tortfeasor, i.e., directly negligent, cannot be premised on that which she presents for the first time on appeal.

In regards to the vicarious nature of liability, the Court of Appeals has said that “where the liability of the master is vicarious, master and servant comprise but one ‘pro rata share.’ ” Chilcote, 300 Md. at 114 , 476 A.2d 204 . See Anne Arundel Medical Center v. Condon, supra. Moreover, “the tortious act of [a] servant done in the course of his employment is ordinarily the legal act of the master, and in this sense, the employer is not free of ‘fault.’ ” Embrey v. Holly, 293 Md. 128, 136 , 442 A.2d 966 (1982). See also Rowley v. Mayor of Baltimore, 305 Md. 456 , 505 A.2d 494 (1986).

It is settled law, and fundamental to the concept of vicarious liability under the doctrine of respondeat superior, that the tortious actor must be the servant or agent of the one sought to be held liable, that is, that a master-servant or principal-agent relationship must exist. Once this first step is established, then the plaintiff must show that the offending conduct occurred within the scope of the employment of the servant or under the express or implied authorization of the master. Cox v. Prince George’s County, 296 Md. 162, 165 , 460 A.2d 1038 (1983). Thus, if a party produces any legally sufficient evidence to prove the existence of an agency or employment relationship, it becomes a question of fact that must be submitted to the fact finder.

Faya v. Almaraz, 329 Md. 435, 460 , 620 A.2d 327 (1993). In the case sub judice, appellant did not present below any manner in which the Health Depart ⁴⁸⁰ ment directly acted tortiously, but rather only implicated its secondary liability as Dr. Casas’s employer. Chilcote v. Von Der Ahe Van Lines, 300 Md. 106 , 476 A.2d 204 (1984), is instructive in reaching a determination as to the nature of the relationship between Dr. Casas and the Health Department and the effect of the release. In that case, the appellants were involved in a three-party vehicular collision.

An employee of Von Der Ahe Van Lines was driving one vehicle owned by Von Der Ahe and another party was driving the third vehicle. A release of the third party prior to trial prompted an appeal based on the appropriate pro rata share of the employer’s and employee’s liability. The Court of Appeals analyzed the UCATA’s legislative history and held, given the derivative nature of an employer’s liability and the fact that it was not shown that the employer was “personally and directly guilty of any [tort] ... by reason of what she personally did or omitted to do,” the employer and employee to have committed the same act of negligence, for which the appellants could only recover once. Chilcote, at 118, 476 A.2d 204 (citation omitted).

See also Anne Arundel Medical Center v. Condon, supra. Accordingly, the Health Department’s Motion to Dismiss was properly granted. IV Appellant is also aggrieved by the trial court’s grant of Dr. Soo Young Oh’s Motion for Summary Judgment. She contends that Dr. Oh was negligent in the performance of his supervisory duties over the residents at the Prince George’s County Hospital Center.

Appellant further asserts that Dr. Oh’s liability stems from his status as the Hospital residents’ “special employer,” within the meaning of the “borrowed servant rule.” 20 In addition to denying liability, Dr. Oh ⁴⁸¹ challenges appellant’s contentions on public policy grounds. 21 We do not accept appellant’s characterization of Dr. Oh’s relationship vis-á-vis the residents. We explain. A “borrowed servant” can create liability in a third party who is not his master for the servant’s negligent acts, when that third party essentially “borrows” him from his actual master. Depending on the degree of control exercised by the third party over the servant and the degree of autonomy given to the servant, the third party may be liable for the other’s servant’s negligent acts as his “special employer.” The Court of Appeals, in Dippel v. Juliano, 152 Md. 694, 699-700 , 137 A. 514 (1927), held: Evidently full dominion and control is not necessary, for that would imply the right to hire and discharge, and that is nowhere regarded as essential, while the mere right to point out and direct the servant as to the details of the work and the manner of doing it, leaving to the servant or his general employer the right to determine what work he shall do and what means he shall employ to do it, ordinarily is not enough.

But where the work to be done is the borrower’s work, and a part of his business, and he has the power and authority to direct when and where and how it shall be done, and where the work is not within the scope of the general employment of the servant, it may fairly be said that so far as that work is concerned he is under the control ⁴⁸² ofthe borrower and that the latter will be responsible for his negligent acts. [Emphasis added, citation omitted.] Appellant alleges it is this “borrowed servant” relationship which creates derivative liability in Dr. Oh for the negligence of the residents who provided Ms. Rivera with medical care. We disagree. In the case sub judice, the work to be done was the Hospital’s—the master of the attending residents. The work was part of the Hospital’s business—providing medical services.

Furthermore, the work done by the residents was within the scope of their relationship with the Hospital. See also Baltimore Transit Co. v. State, 184 Md. 250, 267-68 , 40 A.2d 678 (1945). The residents were not being “borrowed” by Dr. Oh. If anything, Dr. Oh’s services were being “borrowed” by the Hospital.

The question thus becomes what is the nature of the relationship between the Hospital, the residents, and Dr. Oh or, stated differently, what is the nature of an “on call” relationship in the hospital/doctor/patient context? We can find no agreement in the record defining the specific relationship in the case sub judice. There is also no evidence regarding the duties and responsibilities encompassed by being “on call.” 22 In the case sub judice, no evidence regarding Dr. Oh’s ability to control the residents prior to being called was presented. Moreover, evidence was adduced that, in respect to his “on call” status, Dr. Oh was an independent contractor and, as such, not an employee in the strict sense of the word.

In his capacity as an independent contractor of the Hospital, Dr. Oh was “on call” for a two week period each year.