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Rosebrock v. Eastern Shore Emergency Physicians, LLC

Court of Special Appeals of Maryland

January 28, 2015


Page 424

For Appellant: Richard S. Phillips of Easton, MD (Cecilia I. Lavrin of Cambridge, MD) all on the brief.

For Appellee: Curtis H. Booth (Carl A. Howard, Cowdrey Thompson, P.C. on the brief) all of Easton, MD.

Woodward, Zarnoch, Kenney, James A., III (Retired, Specially Assigned), JJ.


Page 425

[221 Md.App. 4] 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 bye 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]

[221 Md.App. 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.

Page 426


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 [221 Md.App. 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. Burgoyne 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 vertebrae, [221 Md.App. 7] " with possible retropulsed fragment[s] 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

Page 427

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. [221 Md.App. 8] On June 13, 2011, appellant's counsel filed a timely notice of appeal.


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 [221 Md.App. 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."

Page 428

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 [ ] Phillips['s] 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 [221 Md.App. 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 1-203(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.


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

Page 429

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 ...

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