Rosebrock v. Eastern Shore Emergency Physicians, LLC

WOODWARD, J. On May 14, 2009, appellant, Sean Rosebrock individually and as guardian of Judith Phillips, filed a complaint for medical malpractice in the Circuit Court for Baltimore City, against, among others, appellees, Deborah Davis, M.D.; Eastern Shore Emergency Medicine Physicians, LLC; and Shore Health System, Inc. (“Shore System”). The matter was subsequently transferred by agreement to the Circuit Court for Queen Anne’s County, where a jury trial commenced on March 28, 2011. On April 7, 2011, the jury returned a verdict in favor of appellees, concluding that Dr. Davis was not negligent in her care and treatment of Phillips. On appeal, appellant presents five issues for our review, which we have condensed and rephrased into two questions: 1 ⁵ 1.

Did the trial court err or abuse its discretion by admitting, as “habit” evidence under Maryland Rule 5-406, Dr. Davis’s testimony regarding her customary practice when presented with a patient immobilized on a backboard? 2. Did the trial court abuse its discretion, under Rules 5-702 and 5-703, by allowing appellees’ experts to testify regarding Dr. Davis’s compliance with the standard of care in her examination of Phillips? Appellees filed a conditional cross-appeal and present three issues, 2 which, as stated in their brief, are: 1. Whether the trial court erred in denying Appellees’ Motion for Judgment on the statute of limitations, and refusing to instruct the jury on that issue[.] 2.

Whether the trial court erred in refusing to instruct the jury on contributory negligence[.] 3. Whether the trial court incorrectly allowed Appellant to present evidence of and argue non-economic damages for a period after [ ] Phillips entered a persistent vegetative state[.] In addition, appellees filed a motion to dismiss the instant appeal, which, for the reasons stated herein, we shall deny. We answer both of appellant’s questions in the negative and thus shall affirm the judgment of the circuit court. As a result, we need not address the issues raised in appellees’ conditional cross-appeal.

BACKGROUND On November 21, 2003, Phillips slipped and fell on a wet floor in a patient’s room while on duty as a nurse’s aide at the Ruxton Nursing Home located in Denton, Maryland. Emergency Medical Technicians arrived at the scene of the incident and noted that Phillips complained of “right hip pain, right ⁶ knee pain, and slight pain to the lumbar region of the lower back.” Phillips was immobilized on a backboard and transported by ambulance to the Emergency Department of Shore System’s Memorial Hospital in Easton, Maryland. Upon arrival at the hospital at 2:20 a.m., Phillips was assessed by triage nurse Richard Brooks, who documented that Phillips was experiencing pain in the right knee, right hip, and lower back. At 2:35 a.m., Dr. Davis, as attending physician, took a history of the incident from Phillips and then examined her.

The Emergency Physician Record of Dr. Davis’s examination of Phillips indicated that Phillips was experiencing pain in her right knee and right hip. Dr. Davis’s assessment did not include any notation of Phillips experiencing back pain, and the portion of the Emergency Physician Record that provides for documentation of a back examination was left blank. After reviewing the x-rays of Phillips’s right knee and right hip, which were negative for fractures, Dr. Davis diagnosed Phillips as having knee and hip contusions. Phillips was discharged from Memorial Hospital at 3:30 a.m.

On November 24, 2003, Phillips consulted Richard Bourgogne, M.D., complaining of soreness in her hip, knee, and back. Dr. Bourgogne assessed Phillips as having “leg pain” and increased her dosage of Celebrex. Dr. Bourgogne planned to do an MRI if significant pain continued without improvement for 48 hours and advised Phillips to go to the emergency room if her condition worsened. On December 1, 2003, Dr. Bourgogne ordered an MRI of Phillips’s right hip that showed the hip to be “unremarkable” and without fracture.

The MRI also showed degenerative disc disease in the lower lumbar spine. On December 9, 2003, with her condition worsening, Phillips visited Glenn Hardy, M.D., at the Orthopedic Center in Easton, Maryland. 3 Dr. Hardy ordered X-rays of Phillips’s back, which revealed an acute compression fracture of the L3 verte ⁷ brae, “with possible retropulsed fragments] causing nerve root compression.” Due to “significant nerve root impairment,” Phillips was sent by ambulance to Memorial Hospital to see Benjamin Knox, M.D., for a CT scan and evaluation. The CT scan revealed that Phillips had a “burst fracture” of the L3 vertebrae, and she was subsequently transported to the University of Maryland Shock Trauma Center for further treatment. The Orthopedics department “decided to have a trial of [Thoracic-Lumbar-Sacral Orthosis] bracing.” Because her condition failed to respond to the bracing treatment, on December 15, 2003, Phillips underwent a “posterior spinal fusion and anterior spinal fusion” to correct the L3 burst fracture.

On December 19, 2003, Phillips was discharged to Corsica Hills Center to begin rehabilitation. When she experienced an “elevated white blood cell count and fever,” Phillips was transferred back to the University of Maryland on December 27, 2003, where she received treatment for an infected surgical wound. Unexpectedly, on January 4, 2004, Phillips “sustained a ventricular fibrillation arrest in which she suffered anoxic brain injury.” As a result, Phillips entered into a persistent vegetative state and stayed in that condition until her death on June 12, 2011. On May 14, 2009, Phillips, by and through appellant, as her guardian, filed a complaint in the Circuit Court for Baltimore City, asserting, among other claims, one count of negligence against appellees.

On January 13, 2010, the case was transferred by agreement to the Circuit Court for Queen Anne’s County. A jury trial commenced on March 28, 2011, and, on April 7, 2011, the jury found that Dr. Davis was not negligent in her care and treatment of Phillips on November 21, 2003. On April 15, 2011, appellant filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial, claiming error in the trial court’s admission of “habit” testimony pertaining to Dr. Davis’s examination of individuals who are presented in the emergency room on a backboard. On May 18, 2011, without a hearing, the circuit court denied appellant’s motion.

On June 12, 2011, Phillips passed away. ⁸ On June 13, 2011, appellant’s counsel filed a timely notice of appeal. PROCEDURAL HISTORY IN THE COURT OF SPECIAL APPEALS On December 9, 2011, while the appeal in the instant case was pending in this Court, but before any briefs were filed or oral argument was held, appellees filed a motion to dismiss the appeal. In their motion, appellees stated that they had recently received information that Phillips died after judgment was entered in the trial court, but before the Notice of Appeal was filed. As a result, according to appellees, appellant, as guardian of Phillips, did not have the authority to file the Notice of Appeal.

Appellees further asserted that appellant was required to substitute the Personal Representative of Phillips’s estate as a party in the instant appeal prior to any further proceedings, and that as of the time of the filing of the motion to dismiss, appellees had been “unable to determine that an Estate had] been opened for [] Phillips or that a Personal Representative had] been properly granted Letters of Administration.” Appellees concluded that the failure to substitute the Personal Representative as a proper party rendered all filings by appellant subsequent to Phillips’s death nullities, including the Notice of Appeal. Appellees also argued that appellant’s counsel “similarly lacked the legal authority to file an appeal after [ ] Phillips died.” Appellees cited to “well-established agency law principles,” which provide that “an attorney has no authority to act for a client who has died.” Thus, according to appellees, appellant’s counsel did not have authority to file an appeal on behalf of Phillips after she passed away, and because an appeal was filed when counsel lacked authority to do so, the Notice of Appeal was a nullity, and the appeal must be dismissed. Apparently unbeknownst to appellees, one day prior to the filing of their motion to dismiss, December 8, 2011, Letters of Administration for Phillips’s estate were granted to appellant ⁹ by the Register of Wills for Queen Anne’s County. On December 21, 2011, appellant filed a Notice of Substitution in this Court, in which appellant advised us of his appointment as Personal Representative and requested that the “parties herein [ ] reflect the Plaintiff [sic] as Sean Rosebrock as] Personal Representative of the Estate of Judith Phillips.” Also on December 21, 2011, appellant filed an Opposition to the Motion to Dismiss.

In the opposition, appellant stated, among other things, that (1) Phillips died at 10:28 p.m. on June 12, 2011; (2) “[pursuant to instructions given to counsel prior to the passing of [ ] Phillips, a Notice of Appeal was prepared and filed in the above matter on June 13, 2011”; and (3) “[counsel was unaware of [ ] Phillipsfs] passing when the Notice of Appeal was filed subsequently, less than 16 hours after her passing.” Because a Notice of Substitution had been filed substituting the appearance of appellant as guardian with appellant as Personal Representative, appellant concluded that the proper party had made an appearance in the instant appeal, and thus appellee’s motion to dismiss should be denied. This Court took no action on appellees’ motion to dismiss. When the parties filed their briefs in the instant appeal in the Spring of 2012, appellees included a motion to dismiss in their brief. Oral argument was held on October 9, 2012.

Three days after oral argument, on October 12, 2012, appellant filed a Motion to Extend Time for Filing Substitution (“motion to extend time”). In the motion to extend time, appellant alleged that, once counsel learned of the death of Phillips, “the process of getting an Estate filed was immediately begun expeditiously and was completed on December [8], 2011.” Appellant also stated that appellees’ motion to dismiss was filed “based on [a] failure to extend the time period for filing of the Estate.” Because, according to appellant, a Notice of Substitution had been filed and no prejudice had been suffered by appellees because of the delay in his appointment as Personal Representative, appellant requested this Court “to retroactively issue an Order extending the time ¹⁰ period for filing a Substitution of Party to allow for the Substitution as here entered.” On October 12, 2012, appellees filed an Opposition to Motion to Extend Time For Filing Substitution (“opposition to motion to extend time”). In the opposition to motion to extend time, appellees asserted that appellant had noted the appeal on June 13, 2011, in his capacity as guardian, before an estate had been opened or a personal representative appointed for Phillips’s estate. Appellees also stated that appellant was not appointed Personal Representative of Phillips’s estate until almost six months later, on December 8, 2011.

According to appellees, Maryland Rule 1 — 203(d) “provides the representatives of a deceased party at least 60 days to substitute the proper party,” which time period can be extended only on a showing of “good cause” and a lack of prejudice to the rights of any other party. Because, according to appellees, the motion to extend time contained no factual basis for this Court to find “good cause why a proper substitution was not, or could not have been made in a timely fashion,” there was no basis for an extension of the Rule l-203(d) time frame, and thus the appeal must be dismissed. Additional facts will be set forth herein as necessary to resolve the motion to dismiss, the motion to extend time, and the questions presented in this appeal. DISCUSSION 1.

Motion to Dismiss In their brief, appellees raise the same arguments in support of their motion to dismiss as they did in their motion filed on December 9, 2011. Specifically, appellees argue that, although appellant was the duly appointed guardian of Phillips, his authority to act on her behalf ceased upon her death on June 12, 2011. Because the Notice of Appeal was filed on June 13, 2011, appellees conclude that, “[as guardian and not personal representative, [appellant] did not have this authority, and thus, his appeal is a nullity.” ¹¹ In addition, appellees contend that the attorneys who represented Phillips’s interests in the circuit court lacked the legal authority to file this appeal on her behalf once she died on June 12, 2011. Appellees assert that, upon the death of Phillips, Maryland Rules 2-241 and l-203(d) “afforded [appellant a process and time frame in which to have the proper party substituted to pursue this appeal.” Appellees conclude that “this appeal should be dismissed pursuant to Maryland Rule 8-602(a)(l) and/or Rule 8-602(a)(9).” Appellant responds that, as the appointed guardian of Phillips, he remained responsible for her “property and person” until the guardianship was terminated by the court order entered on April 25, 2012.

Appellant contends that, because he acted as the guardian of Phillips’s property and person from July 5, 2005 until April 25, 2012, he was legally authorized to file the instant appeal the day following Phillips’s death. In addition, appellant contends that, because his attorneys were not aware of the death of Phillips when they filed the appeal, appellees’ “attempt to gain an advantage by the untimely death of [ ] Phillips is certainly unwarranted.” “A guardian is a person who legally has the care of the person or property, or both, of another person who is incompetent to act for himself or herself.” 11 McL Law Encyclopedia, Guardian & Ward § 1 (2014). A guardianship is a statutory concept that gives the court discretion in appointing a guardian and conferring narrow guardianship powers. See Md. Code (1974, 2011 Repl.

Vol.), §§ 13-201, -213 of the Estates & Trusts Article (“ET”). A guardianship will terminate at the “death or presumptive death of the minor or disabled person.” ET § 13-221(b)(2). The powers and duties of a guardian whose capacity has been extinguished by the death of the ward are limited. Upon the death of the ward, the guardian is authorized only to deliver to the appropriate probate court for safekeeping any will of the deceased person in his possession, pay from the estate all commissions, fees, and expenses shown on the court-approved final guardianship account, inform the personal representative or a beneficiary named in it that he has ¹² done so, and retain the balance of the estate for delivery to an appointed personal representative of the decedent or other person entitled to it.

ET § 13 — 214(c)(3); cf. Battley v. Banks, 177 Md.App. 638, 651 , 937 A.2d 846 (2007). Moreover, Section 7-401(y) provides that the personal representative of an estate is authorized to maintain an action to prosecute or defend personal claims that a decedent may have prosecuted or commenced. ET § 7-401(y). A guardian thus has the authority to prosecute an action on the ward’s behalf only when the ward is alive.

Upon the death of the ward (now decedent), the only person who may prosecute an action on the decedent’s behalf is the personal representative. “[Under well-established principles of agency law, an agent’s authority terminates upon the death of the principal.” Brantley v. Fallston Gen. Hosp. Inc., 333 Md. 507, 511 , 636 A.2d 444 (1994) (citation omitted). An attorney does not have authority to note an appeal on behalf of a client who has died.

Id. at 511 , 636 A.2d 444 ; see also Restatement (Third) of Law Governing Lawyers § 31(2)(b) (stating that “a lawyer’s actual authority to represent a client ends when ... the client dies”). In Brantley , the Court of Appeals noted the importance of having the appropriate party file an appeal, stating: We hold in this case that counsel’s authority to file an appeal terminated upon the death of his client. At the time he noted the appeal, no personal representative had been appointed, and no other real party in interest had been substituted in the action. Thus, when counsel filed the appeal, he purported to be acting on behalf of a nonexisting client. 333 Md. at 512 , 636 A.2d 444 (footnote omitted).

The Court of Appeals also has held that, when an attorney files an appeal on behalf of a client who has died, it is “not a mere irregularity, but a complete and radical defect, requiring dismissal of the appeal.” Chmurny v. State, 392 Md. 159 , 896 A.2d 354 (2006) (citation and internal quotation marks omitted). ¹³ What guardianship and agency law principles set forth above do not address, however, is the authority of the agent after the principal dies, but before the agent learns of the principal’s death. The Brantley case does not address that point, nor does any other Maryland case law. See 333 Md. 507 , 636 A.2d 444 . Such authority is critical in the instant case, because appellant argues that he, as Phillips’s guardian, authorized counsel prior to Phillips’s death to note an appeal, which counsel did less than sixteen hours after Phillips’s death, but before counsel received notice of her death.

Section 3.07(2) of the Restatement (Third) of Agency (2006) states the following: The death of an individual principal terminates the agent’s actual authority. The termination is effective only when the agent has notice of the principal’s death. The termination is also effective as against a third party with whom the agent deals when the third party has notice of the principal’s death. (Emphasis added).

The purpose of Section 3.07(2) “is to reduce risks imposed by the common-law rule upon agents and third parties who deal in a manner consistent with the principal’s prior manifestations of assent.” § 3.07 CMT. d. Consequently, Section 3.07 seeks to avoid any “harsh consequences” resulting when an agent, “unaware of the principal’s death, ... acts] in good faith following it.” Id. We shall adopt Section 3.07 of the Restatement (Third) of Agency to avoid such “harsh consequences.” See id. Therefore, actions taken by the agent under his or her authority and prior to notice of the principal’s death are valid.

Accordingly, in the instant case, because appellant’s counsel was given authority to note the appeal pursuant to appellant’s instructions as guardian prior to Phillips’s death, and because counsel noted the appeal prior to being notified of Phillips’s death, appellant’s counsel had valid authority to note the appeal. ¹⁴ Contrary to the arguments of both parties, we do not believe that Rule 1 — 203(d) is applicable to the instant case. Rule l-203(d) reads: Upon the death of a party, all time requirements under these rules applicable to that party shall be extended automatically from the date of death to the earlier of (1) 60 days after the date of death or (2) 15 days from the issuance of letters of administration by a court of competent jurisdiction. Before or after the expiration of an extension period under this section and upon a showing of good cause why a proper substitution was not made or could not have been made prior to the expiration of the extension and that a further extension will not unfairly prejudice the rights of any other party, the court may extend the time requirements applicable to the deceased party for an additional period commencing upon the expiration of the extension. In essence, Rule 1 — 203(d) provides that all time requirements for filing are extended for sixty days upon the death of a party, and can be extended for an additional period upon a showing of good cause.

Rule 1 — 203(d), however, does not come into play when a valid notice of appeal is filed within thirty days after the entry of a final judgment by the circuit court. Because, as we have held, appellant’s counsel had the authority to file an appeal on June 13, 2011, pursuant to Section 3.07 of the Restatement (Third) of Agency, and the date of filing of the Notice of Appeal, June 13, 2011, was within thirty days of the trial court’s denial of appellant’s motion for judgment notwithstanding the verdict, May 18, 2011, there is no need to look to Rule l-203(d) for an extension of the time requirement for filing the appeal. Accordingly, we will deny appellant’s motion to extend time as moot. In terms of appellant’s authority to prosecute the instant appeal, Rule 2-241 provides for the substitution of the personal representative, upon the death of a party, to prosecute a validly-noted appeal.

Rule 2-241 provides, in relevant part: ¹⁵ (a) Substitution. The proper person may be substituted for a party who: (1) dies, if the action survives (b) Procedure. Any party to the action, any other person affected by the action, the successors or representatives of the party, or the court may file a notice in the action substituting the proper person as a party. The notice shall set forth the reasons for the substitution and, in the case of death, the decedent’s representatives, domicile, and date and place of death if known.

The notice shall be served on all parties in accordance with Rule 1-321 and on the substituted party in the manner provided by Rule 2-121, unless the substituted party has previously submitted to the jurisdiction of the court. (c) Objection. Within 15 days after the service of the notice of substitution, a motion to strike the substitution may be filed. (d) Failure to Substitute.

If substitution is not made as provided in this Rule, the court may dismiss the action, continue the trial or hearing, or take such other action as justice may require. (Emphasis added). As can readily be seen, Rule 2-241 imposes no time requirement for filing a notice of substitution upon the death of a party. The Rule simply provides that upon filing a notice of substitution, any opposing party may file a motion to strike within fifteen days.

See Rule 2-241(c). Here, appellant filed a notice of substitution on December 21, 2011; appellees did not file a motion to strike. The notice of substitution therefore is valid to permit appellant, as personal representative, to prosecute the instant appeal. Indeed, the parties’ briefs were filed and