State v. Copes

EYLER, DEBORAH S., J. On July 12, 2003, Gladys Copes, age 63, died while a patient at the Deer’s Head Hospital Center (the “Center”), in Salisbury. The Center is a State-operated long-term nursing facility. Gladys had had several admissions to the Center in the months immediately preceding her death. ³⁵⁷ Corethia, Christal, and Chantel Copes are Gladys’s adult children, and her only living children. 1 Corethia is a resident of Salisbury; Christal and Chantel live in Virginia. Corethia was named personal representative under her mother’s will.

At the time of her death, Gladys was not married. On July 2, 2004, Corethia’s attorney notified the State Treasurer, in writing, that Gladys’s death was the result of medical malpractice by health care providers at the Center. On November 3, 2004, in the Circuit Court for Wicomico County, Corethia, individually and as the personal representative of Gladys’s estate, sued the “State of Maryland d/b/a Deer’s Head Center” for medical malpractice in one negligence count. She prayed a jury trial.

Corethia alleged that Gladys died from a virulent E. coli infection that developed at the site of an ulcer on her leg, and that the ulcer developed because the Center’s health care providers incorrectly applied a cast to her leg. She further alleged that the Center health care providers subsequently failed to properly diagnose and treat the infection. Corethia amended her complaint to divide her claim into two counts, one for survival and one for wrongful death. She subsequently amended her complaint again to name Christal and Chantel as “use plaintiffs.” Ultimately, she again amended her complaint to join her sisters as plaintiffs.

The State moved for summary judgment on both counts, arguing that the survival action was barred by sovereign immunity because Corethia did not give timely notice of claim to the State Treasurer as required by the Maryland Tort Claims Act (“MTCA”), Md.Code (2004 Repl.Vol., 2006 Supp.), section 12-101, et seq. of the State Government Article (“SG”); that Christal and Chantel’s wrongful death claims also were barred by sovereign immunity because they did not give any notice of claim to the State Treasurer; and that, even though Corethia herself had properly notified the State Treasurer of ³⁵⁸ her wrongful death claim, she could not pursue it, because either all three of the wrongful death beneficiaries could recover for wrongful death or none of them could. The circuit court granted summary judgment in favor of the State on the survival action and the wrongful death claims of Christal and Chantel, leaving only Corethia’s wrongful death claim. That claim was tried to a jury that found in her favor, awarding $175,000 in damages. The State noted an appeal and Corethia, on her own behalf and on behalf of her sisters, noted a cross-appeal.

The State has raised one question and the appellees have raised two. Because the answer to the State’s question depends upon the answers to the appellees’ questions, we shall reorder them as follows: By the appellees: I. Did the circuit court err by granting summary judgment in favor of the State on the survival claim?

II

Did the circuit court err by granting summary judgment in favor of the State on Christal and Chantel’s wrongful death claims? By the State: III. Did the circuit court err by denying its summary judgment motion as to Corethia’s wrongful death claim? For the following reasons, we shall affirm the judgment in part, reverse the judgment in part, vacate the judgment in part, and remand the case to the circuit court for further proceedings not inconsistent with this opinion.

SOVEREIGN IMMUNITY/MTCA The State of Maryland, as sovereign, has absolute immunity from suit under common law. That immunity exists unless the State waives it and creates a means to fund the payment of judgments against it. Stern v. Bd. of Regents, 380 Md. 691, 700-01 , 846 A.2d 996 (2004). By enactment of the ³⁵⁹ MTCA in 1981, the State, with certain conditions and limitations, did just that.

SG section 12 — 104(a)(1) provides that, “[sjubject to the exclusions and limitations in this subtitle and notwithstanding any other provision of law, the immunity of the State and of its units is waived as to a tort action, in a court of the State, to the extent provided under paragraph (2)[.j” Paragraph two limits the liability of the State in a tort action to “$200,000 to a single claimant for injuries arising from a single incident or occurrence.” SG § 12-104(a)(2). (The section goes on to create certain exceptions to that limitation, which are not at issue here.) SG section 12-105 confers immunity from suit upon State personnel, for certain wrongs, including negligence. To sue the State under the MTCA, a claimant first must satisfy the claim requirements of SG sections 12-106 and 12-107. SG section 12-106, entitled “Restrictions on actions[,j” describes the written claim that must be submitted as a condition precedent to the State’s waiver of immunity in tort.

It states: (a) Scope of Section. — This section does not apply to a claim that is asserted by cross-claim, counterclaim, or third-party claim. (b) Claim and denial required. — A claimant may not institute an action under this subtitle unless: (1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim; (2) the Treasurer or designee denies the claim finally; and (3) the action is filed within 3 years after the cause of action arises. SG § 12-106 (emphasis added). SG section 12-107(a) specifies the information that must be included in the written claim.

It directs that the claim shall: ³⁶⁰ (1) contain a concise statement of facts that sets forth the nature of the claim, including the date and place of the alleged tort; (2) demand specific damages; (3) state the name and address of each party; (4) state the name, address, and telephone number of counsel for the claimant, if any; and (5) be signed by the claimant, or the legal representative or counsel for the claimant. SG § 12-107(a). Finally, pursuant to SG section 12-102, the MTCA “shall be construed broadly, to ensure that injured parties have a remedy.” STANDARD OF REVIEW In reviewing a decision by a circuit court to grant summary judgment, “[w]e consider, de novo, first, whether a material fact was placed in genuine dispute, thus requiring a trial, and, second, if trial by a fact-finder is not required, whether the [cjircuit [ejourt was legally correct in granting summary judgment.” Haas v. Lockheed Martin Corp., 396 Md. 469, 478 , 914 A.2d 735 (2007) (citing Livesay v. Baltimore County, 384 Md. 1, 9 , 862 A.2d 33 (2004)). We conduct an independent review of the summary judgment record and “construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party.” Remsburg v. Montgomery, 376 Md. 568, 579-80 , 831 A.2d 18 (2003) (citing Todd v. MTA, 373 Md. 149, 155 , 816 A.2d 930 (2003)).

DISCUSSION I. The Survival Action The State moved for summary judgment on the survival action on the ground that Corethia’s claim, as personal repre ³⁶¹ sentative, was not submitted to the State Treasurer “within 1 year after the injury to the person ... that is the basis for the claim,” as required by SG section 12 — 106(b)(1). Specifically, according to the State, Gladys’s “injury,” within the meaning of the MTCA, occurred no later than June 2, 2003; yet Corethia, as personal representative, submitted the written claim to the State Treasurer on July 2, 2004, more than one year later. 2 Corethia filed an opposition to the summary judgment motion. She did not argue that there was any genuine dispute of material fact that would preclude the entry of summary judgment. Rather, she argued that “the injury to Gladys [ ] occurred on July 12, 2003, the day she died”; and that, because “[c]ase law in Maryland clearly established] that the date of injury, not the date of negligence, is the date from which the one year notice requirement starts[,]” the claim was timely submitted on July 2, 2004, less than one year after the date of death. 3 The circuit court granted summary judgment in favor of the State on the survival claim on the ground that Corethia’s written claim was not timely submitted under SG section 12-106(b)(1).

Facts Material to the Survival Action The undisputed material facts before the court on summary judgment, viewed in the light most favorable to Corethia as ³⁶² the non-moving party, were as follows. On December 4, 2002, Gladys fell at home, breaking her right kneecap. She was admitted to the Center for care related to this injury. At the time of her admission, she was suffering from a multitude of long-standing medical problems, including chronic kidney failure, for which she was on hemodialysis; insulin-dependent diabetes with associated eye inflammation and kidney disease; high blood pressure; high cholesterol; and a history of arrhythmias for which a pacemaker had been implanted.

As part of the treatment for Gladys’s broken kneecap, health care providers at the Center placed an “immobilizer device” (a type of cast) on her right leg. On December 11, 2002, a physician noted that Gladys had developed blisters on her right ankle “due to irritation from [illegible] immobilizer.” Gladys was discharged from the Center on December 27, 2002. Less than one month later, on January 21, 2003, Gladys was admitted to Peninsula Regional Medical Center (“PRMC”), complaining of “right leg pain,” among other symptoms. She was found to have a blockage of her right femoral artery and a narrowing of her left femoral artery. 4 During this hospitalization, a doctor observed and noted that Gladys had “a dry ulcer on the right heel and ankle, chronic in nature.” Gladys was discharged from PRMC on January 25, 2003, “to be followed as an outpatient.” On March 2, 2003, Gladys was re-admitted to PRMC with complaints of pain in her “right lower extremity,” i.e., her right leg.

Her treating doctors determined that the blockage of her right femoral artery had persisted. They transferred her to the University of Maryland Medical Center (“UMMC”) for surgery to bypass the blockage. After her surgery, on March 13, 2003, Gladys was readmitted to the Center for follow-up care. A physician at the Center noted Gladys’s history of having “an ulcer on the right ³⁶³ Achilles area, secondary to placement of a cast [referring to the immobilizer device] in December[.]” By early April, Gladys had developed an “abscess of the right Achilles area due to decubitus ulcer secondary to a cast.” 5 Her condition deteriorated and she began manifesting signs of a serious infection, including drainage at the sites of her recent surgical incision and her abscess, and delirium.

By May 20, 2003, Gladys’s wounds were producing “thick odorous green drainage,” according to her treating nurses. On June 2, 2003, Gladys was transferred to PRMC with symptoms of “probable sepsis.” Then, on June 4, she was transferred to UMMC, suffering from an apparent soft-tissue infection of her right leg. Her condition was grave. Five days later, on June 9, she underwent surgery to amputate her right leg above the knee, as a consequence of the infection.

Unfortunately, the surgery failed to eradicate Gladys’s infection. On June 12, 2003, her doctor at UMMC recommended as a last resort radical amputation of Gladys’s right leg at the hip joint. In conference with her family members, she decided against the surgery. On June 30, 2003, Gladys was returned to the Center for wound care and pain management.

Her condition continued to deteriorate and, by July 8, 2003, she was “considered terminal.” Shortly thereafter, after consultation with the family, and with their consent, dialysis was discontinued. Gladys died on July 12, 2003. Her death certificate lists the immediate cause of death as “renal failure[.]” “Above knee amputation-right with [E.] coli infection” is listed as an “other significant condition[ ] contributing to death[.]” As already noted, Corethia submitted her written claim to the State Treasurer’s office on July 2,2004. After hearing arguments on the summary judgment motion, the Court ruled as follows as to the survival action: ³⁶⁴ I agree with [counsel for Corethia] that death is the ultimate injury, but I don’t think that the notice requirement ] runs from the final injury or the worst injury, and it does seem clear even looking at it in the light most favorable to the Plaintiffs that the injury occurred more than one year prior to the date on which notice was given.

So I am going to grant the motion as to Count One. The Nature of A Survival Action At common law, an individual’s cause of action in tort abated at death. In 1888, the Maryland General Assembly enacted a statute “which not only prevented a pending action from abating, but also empowered the decedent’s representative to commence an action subsequent to death.” Benjamin v. Union Carbide Corp., 162 Md.App. 173, 187 , 873 A.2d 463 (2005), aff'd, 394 Md. 59 , 904 A.2d 511 (2006). 6 A “survival action” is so named because the decedent’s personal representative “is essentially bringing an action that the decedent could have brought had he or she not died.” Lopez v. Maryland State Highway Admin., 327 Md. 486, 490 , 610 A.2d 778 (1992). The personal representative “serves as the posthumous agent of the victim”; the survival action “arises from the tortious infliction of injury upon the victim”; and “damages are measured in terms of harm to the victimj.J” Benjamin, supra, 162 Md.App. at 202 , 873 A.2d 463 .

(quoting Globe Am. Cas. Co. v. Chung, 76 Md.App. 524, 526-27 , 547 A.2d 654 (1988) (emphasis in original), vacated on other grounds, 322 Md. 713 , 589 A.2d 956 (1991)). “[T]hus, death is irrelevant” to a survival action. Id. at 203, 873 A.2d 463 . ³⁶⁵ The Written Claim Requirement of the MTCA As discussed, supra, under the MTCA, a claimant must “submit[ ] a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim.” SG § 12-106(b) (emphasis added).

Thus, in determining whether a written claim was timely submitted to the State Treasurer, the key inquiry is into the date of the “injury to person or property that is the basis of the claim.” In Gotham v. Bd. of County Comm’rs, 260 Md. 556 , 273 A.2d 115 (1971), the Court construed a similar written claim provision in a predecessor statute to the Local Government Tort Claims Act (“LGTCA”). The plaintiff sued Prince George’s County and an individual doctor for malpractice allegedly committed at a county hospital. In an amended complaint, she alleged that she had submitted her written claim to the county commissioners “upon discovery of the negligence[.]” Id. at 559 , 273 A.2d 115 . The controlling tort claims statute, then codified at Md.Code (1957), Art. 57, section 18, stated: No action shall be maintained and no claim shall be allowed against [Prince George’s County] for unliquidated damages for any injury or damage to person or property unless ... written notice thereof setting forth the time, place and cause of the alleged damage, loss, injury or death shall be presented ... to the county eommissioners[.] The notice was required to be made “within 180 days” 7 “after the injury or damage was sustained[.]” Id.

The circuit court dismissed the plaintiffs malpractice claim for failure to give timely notice pursuant to section 18. On appeal, the plaintiff conceded that her injury was apparent when she was discharged from the county hospital. She argued, however, that she did not discover the negligence of the hospital health care provider until more than a year later and that the judicially created “discovery rule” controlled ³⁶⁶ when her “injury or damage was sustained.” Under the “discovery rule,” for statute of limitations purposes, a cause of action in tort does not “accrue,” under the general limitations statute (now codified at Md.Code (2006 RepLVoL), section 5-101 of the Courts & Judicial Proceedings Article (“CJ”)) until such time as the plaintiff was on inquiry notice of the alleged wrong. Benjamin, supra, 162 Md.App. at 192 , 873 A.2d 463 (discovery rule is an exception to the general rule that “cause of action accrues at the time of the wrong”); See also Hahn v. Claybrook, 130 Md. 179 , 100 A. 83 (1917) (first recognizing the discovery rule in the context of a medical malpractice ease); Poffenberger v. Risser, 290 Md. 631 , 431 A.2d 677 (1981) (extending application of the discovery rule to all tort actions).

The Cotham Court rejected the plaintiffs argument. It held that the date of her actual injury, not the date she discovered the malpractice that caused her injury, was controlling. This was so, the Court explained, because although the “discovery rule” applies to the concept of “accrual,” for limitations purposes, it does not apply to a notice of claim requirement that is a condition precedent to maintaining a cause of action. Cotham, supra, 260 Md. at 561-62 , 273 A.2d 115 .

The Court concluded that the written claim provision in question was not a statute of limitations; rather, it was a condition precedent to the filing of a suit. SG § 12-106(b). In Haupt v. State, 340 Md. 462 , 667 A.2d 179 (1995), the Court of Appeals extended the principle in Cotham to the written claim provision of the MTCA. 8 In that case, Haupt was driving out of a parking lot onto a roadway when her car collided with another automobile. Three years later, the other driver sued her for negligence.

Haupt timely answered and thereafter filed a third-party complaint against the State, for contribution or indemnity. She alleged that her view of the roadway had been obstructed by overgrown trees and brush ³⁶⁷ on adjoining State property that had been inadequately maintained. 9 The State successfully moved to dismiss Haupt’s third-party claim on the ground that she had not submitted a written claim to the State Treasurer within 180 days of the accident, as then required by SG section 12 — 106(b)(1). 10 The case against Haupt went to trial and resulted in a verdict in favor of the other driver. On appeal, Haupt argued, among other things, that the circuit court should not have dismissed her third-party claim for non-compliance with the written notice requirement of the MTCA because her “injury,” within the meaning of SG section 12 — 106(b)(1), occurred when the other driver obtained a judgment against her, not when the accident occurred. The Court agreed, in part, with Haupt’s argument.

It opined that the purpose of the MTCA’s written claim requirement is to give the State early notice of claims against it. That early notice, in turn, affords the State the opportunity to investigate the claims while the facts are fresh and memories vivid, and, where appropriate, settle them at the earliest possible time. 340 Md. at 470 , 667 A.2d 179 (internal citations omitted). It reasoned that, “When [a] tort claim is made by the plaintiff in the underlying action, it is patent that the 180-day period begins to run as soon as the plaintiff or the plaintiffs property is injured, i.e., from the time of the accident.” Id. at 472 , 667 A.2d 179 (emphasis added). At that time, the legally operative facts to support the elements of a tort claim are in existence. ³⁶⁸ By contrast, the legally operative facts permitting the filing of a third party claim for contribution or indemnity are not in existence when the injury to the plaintiff or his property occurs.

Id. at 474 , 667 A.2d 179 . See Hartford Accident and Indent. Co. v. Scarlett Harbor Assocs. Ltd. P’Ship, 109 Md. App. 217, 283 , 674 A.2d 106 (1996) (noting that third party claims are “contingent” upon a defendanVthird party plaintiffs liability to the plaintiff in the underlying action), affirmed, 346 Md. 122 , 695 A.2d 153 (1997).

Rather, a defendant/third party plaintiff seeking contribution or indemnity is not “injured,” within the meaning of SG section 12-106(b)(l), until he is sued by the plaintiff, at which time he first faces the possibility of liability that is a factual predicate for recovery of contribution or indemnity. Thus, the Court held that Haupt was “injured,” for purposes of her claim against the State for contribution or indemnity, when the other driver sued her. Because she filed a written claim against the State within 180 days of that date, she complied with the written claim provision of the MTCA, and the trial court erred in concluding otherwise. In Heron v. Strader, 361 Md. 258 , 761 A.2d 56 (2000), the Court of Appeals analyzed when an injury occurs under the written claim provision in the LGTCA, codified at CJ sections 5-301, et seq., which is similar to the written claim provision of the MTCA. 11 In that case, on August 24,1997, the plaintiff was arrested by Prince George’s County police officers and charged with certain crimes.

On March 3, 1998, he was acquitted on all charges. He submitted a written notice of claim to Prince George’s County on April 30, 1998, alleging ³⁶⁹ violations of his civil rights and various other wrongs committed against him. On June 1, 1998, the plaintiff filed suit against the county, stating, inter alia, causes of action for false imprisonment, false arrest, and malicious prosecution. The defendant moved to dismiss on the ground that the plaintiffs written notice of claim had not been filed within 180 days of the injury, in conformity with CJ section 5-304.

The circuit court granted the motion. On appeal, the Court of Appeals affirmed in part and reversed in part. It summarized its holding in Haupt as follows: “We held that notice had to be given when the ‘legally operative facts’ permitting the filing of the claim came into existence.” Heron, supra, 361 Md. at 263 , 761 A.2d 56 . The Court explained: Petitioner’s injury, therefore, occurred, pursuant to [the LGTCA], when his causes of action arose, i.e., when the legally operative facts permitting the filing of his claims came into existence.

In order to determine when Petitioner’s causes of action[ ] arose, we must examine the elements of the cause of action, since, under this Court’s precedents, a cause of action is said to have arisen “ ‘when facts exist to support each element.’ ” Id. at 264 , 761 A.2d 56 quoting Owens-Illinois v. Armstrong, 326 Md. 107, 121 , 604 A.2d 47 (1992) (quoting in turn Owens-Illinois v. Armstrong, 87 Md.App. 699, 724-25 , 591 A.2d 544 (1991)). Applying this principle of law to the facts alleged, the Court concluded that the plaintiffs causes of action for false arrest and false imprisonment arose on the day he was arrested, because all of the elements of those claims existed at that time; and hence the date of the arrest was the date of injury, for purposes of CJ section 5-304. The circuit court properly dismissed those causes of action, the Court held, because the plaintiff had not submitted his -written claim to the county within 180 days of his injury. ³⁷⁰ By contrast, the Court concluded that the plaintiffs cause of action for malicious prosecution did not arise until such time as he was acquitted of the charges. The acquittals were legally operative facts that had to have occurred before the plaintiffs cause of action for malicious prosecution could exist.

As such, the plaintiffs malicious prosecution injury, within the meaning of CJ section 5-304, occurred less than 180 days before he gave written notice of claim to the county; and for that reason, the circuit court erred in dismissing that claim. Analysis Returning to the case at bar, we must decide under the controlling statute and the holdings in Cotham, Haupt, and Heron when, based on the summary judgment record, the legally operative facts permitting Gladys to bring suit for medical negligence came into existence. More precisely, we need to determine whether the elements of Gladys’s cause of action for medical negligence came into existence before July 2, 2003, one year before Corethia submitted her notice of claim. We begin by reciting the well-established elements of a cause of action in negligence: “ ‘(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.’ ” Chicago Title Ins.

Co. v. Allfirst Bank, 394 Md. 270, 290 , 905 A.2d 366 (2006)(quoting Valentine v. On Target, Inc., 353 Md. 544, 549 , 727 A.2d 947 (1999)). In the context of medical malpractice, the elements translate into a duty of care owed by the health care provider to the patient; a breach of the applicable standard of care; proximate causation of a medical injury; and damages. See, e.g., Dingle v. Belin, 358 Md. 354, 368 , 749 A.2d 157 (2000); Sterling v. Johns Hopkins Hosp., 145 Md.App. 161, 168-69 , 802 A.2d 440 (2002). An “injury” occurs for purposes of a medical malpractice action at such time as a negligent act is coupled with some harm.

Hill v. Fitzgerald, 304 Md. 689, 696 , 501 A.2d 27 (1985). ³⁷¹ The parties agree that the facts underlying three of the four elements of a cause of action for medical negligence — duty, breach of the applicable standard of care, and causation — were in existence before July 2, 2003. Under Corethia’s theory of the case, the Center’s health care providers owed Gladys a duty of care at all times that she was a patient there. They first breached the standard of care in December 2002, by improperly placing the immobilizer device. That breach of duty caused Gladys to develop a sore on her right heel.

The Center’s health care provider agents then further breached the standard of care during Gladys’s second admission — from March 13, 2003 through June 2, 2003 — by failing to diagnose and properly treat the infection that developed in the sore on Gladys’s right heel and eventually spread into the adjoining wound in her leg from bypass surgery. The infection was a proximate cause of the amputation of Gladys’s right leg and, ultimately, her death. The parties’ point of dispute concerns when Gladys suffered the injury element of her medical negligence cause of action, for purposes of SG section 12 — 106(b)(1). Corethia maintains that Gladys was not actually injured until she died because, prior to her death, she could not have known that the infection she had developed was an E. coli infection.

She argues that the “discovery rule,” as it has been judicially engrafted upon CJ section 5-101, the general three-year statute of limitations, and codified in CJ section 5-109, a specific statute of limitations for medical malpractice actions, applies to the MTCA’s written claim requirement in SG section 12-106(b). The State counters that Gladys suffered an injury within the meaning of SG section 12-106(b) no later than June 2, 2003, more than one year before Corethia submitted her written claim to the State Treasurer. The State maintains that Gladys’s injury was the infection that developed from the untreated sore on her right heel, which necessitated the amputation of her right leg above the knee. Thus, the progression of the localized infection caused by the original ³⁷² negligent act, and the continuing failure to treat that infection, proximately caused a physical injury and attendant pain and suffering for which Gladys could have recovered damages in a medical malpractice action, but for her death.

The State asserts that the “discovery rule” has no application to the MTCA written claim requirement, which is a condition precedent to filing suit, not a statute of limitations. The holdings in Cotham, Haupt, and Heron do not support Corethia’s argument or an application of the “discovery rule” to the MTCA written