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Women First OB/GYN Associates, L.L.C. v. Harris

Court of Special Appeals of Maryland

May 31, 2017


          Eyler, Deborah S., Reed, Moylan, Jr., Charles E., (Senior Judge, Specially Assigned), JJ.


          Eyler, Deborah S., J.

         The primary question in this case is whether the voluntary dismissal with prejudice of a tort claim against an employee for no consideration and in the absence of a release bars the prosecution of the same claim against the employer based solely on vicarious liability. We hold that it does not.


         In the Circuit Court for Montgomery County, Yolanda Harris, the appellee, filed a one-count complaint for medical negligence against Women First OB/GYN Associates, LLC ("Women First"), the appellant, and LaKeischa McMillan, M.D., an obstetrician-gynecologist ("OB-GYN") employed by Women First.[1] Ms. Harris alleged that Dr. McMillan negligently performed a laparoscopic hysterectomy, causing an injury to her left ureter, and that Women First was liable for Dr. McMillan's negligence under the doctrine of respondeat superior. There was no claim of independent negligence against Women First. Women First and Dr. McMillan filed answers; they were represented by the same counsel.

         Discovery proceeded and the case was set in for a jury trial to begin on December 7, 2015. On December 1, 2015, the parties filed a stipulation, signed by counsel, that Dr. McMillan was an "employee" of Women First and was "acting within the scope of her employment" "at all times while . . . treating [Ms. Harris][.]"

         The trial commenced as scheduled. At the very outset, before the venire was brought in, defense counsel told the court that "through some discussions just before trial we've decided to dismiss Dr. McMillan. So the only defendant would be [Women First.]"[2] The court responded, "Okay." In case the court had not seen it, defense counsel referenced the filed stipulation that Dr. McMillan had been acting within the scope of her employment at all relevant times. Nothing more was said about the dismissal of Dr. McMillan that day. Motions and jury selection took up the rest of the day.

         At the beginning of the second day of trial, before the jury was brought in, the court clerk informed the judge that defense counsel "had a question about stipulation as to Defendant [Dr. McMillan]." Addressing counsel, the judge stated, "I'm told by [the clerk] that there's a question about the language of the stipulation regarding Dr. McMillan's portion being dismissed." Defense counsel responded that there was no written stipulation about that. Both counsel said the stipulation could be done "orally." Counsel for Ms. Harris then stated:

So the plaintiff dismisses with prejudice the claims against Dr. Lakeischa McMillan . . . [i]ndividually. The stipulation is that at all times, she was acting as an employee, agent and servant of Women First . . . and that they are responsible for any actions of Lakeischa McMillan, M.D.

Counsel agreed that the jury would be instructed that Dr. McMillan was acting as an employee, agent, and servant of Women First. There was no ruling sought or made by the court. A docket entry made that day states, however: "Plaintiff's oral motion dismisses the claims with prejudice as to defendant Lakeischa McMillan MD - Granted." There is no separate written order memorializing the court's ruling.

         Ms. Harris testified that Dr. McMillan performed the laparoscopic hysterectomy on April 8, 2010. Unlike a traditional hysterectomy, in which the physician opens the patient surgically, a laparoscopic hysterectomy is performed by creating small incisions through which a laparoscope is inserted and used to carry out the procedure. Several days after the hysterectomy, Ms. Harris noticed fluid leaking from one of her incisions. The leaking stopped but sometime around April 21, 2010, when she had a follow up visit with Dr. McMillan, she began to experience discomfort when urinating and with bowel movements. These problems persisted and she also developed abdominal bloating and hardness. At the beginning of May 2010, her primary care physician referred her to a urologist.

         The urologist diagnosed Ms. Harris with an injured left ureter, the tube-like structure that connects the left kidney to the bladder. The injury was causing urine to escape her left ureter and fill her abdomen. Ms. Harris was referred to radiologist Stephen Karr, M.D., at Holy Cross Hospital, to perform a pyelogram. From that study, Dr. Karr determined the location of the injury to the left ureter and placed a nephrostomy tube and collection bag, redirecting urine from the left kidney. The tube and bag remained in place for five and a half months, until the injury healed. Ms. Harris then underwent surgery to reattach her left ureter to her bladder.

         Ms. Harris called Richard Luciani, M.D., an OB-GYN, and Barry Aron, M.D., a urologist, as expert witnesses. They testified that Dr. McMillan breached the standard of care in performing the laparoscopic hysterectomy, causing the injury to the left ureter and the need for subsequent treatment and surgery.[3] We shall discuss the details of their testimony in addressing Question III.

         At the close of Ms. Harris's case, Women First moved for judgment. Defense counsel argued that the dismissal with prejudice of Ms. Harris's claim against Dr. McMillan operated as a release or an adjudication upon the merits in favor of Dr. McMillan; and because Dr. McMillan was "the sole agent for which Women[] First could be held vicariously liable[, ]" there could be no liability against Women First as a matter of law.

         Ms. Harris's lawyer responded that the dismissal with prejudice was not a release or an adjudication upon the merits. The claim against Dr. McMillan simply was "drop[ped]" "without consideration, " and the dismissal was not intended to extinguish Ms. Harris's claim against Women First. He maintained that the dismissal along with the written stipulation that Dr. McMillan was acting as an employee of Women First and within the scope of her employment were "a culmination" of "discussions and negotiations" with defense counsel, who knew that Ms. Harris had no intention to preclude liability on the part of Women First.[4] Alternatively, he asked the court to exercise its revisory power under Rule 2-535 and "nunc pro tunc reinstate the claim against Dr. McMillan[.]"

         In rebuttal, counsel for Women First argued that Ms. Harris's intent in dismissing Dr. McMillan with prejudice was not relevant; and the court did not have revisory power to reinstate her claim against Dr. McMillan.

         The court directed counsel to submit written memoranda the next day in support of and opposition to Women First's motion for judgment. Counsel did so. In her opposition, Ms. Harris asked as an alternative that, if the court were inclined to grant the motion, it revise the dismissal to one without prejudice.

         The court denied the motion on the morning of the following trial day. It concluded that Ms. Harris's negligence claim against Women First remained viable even though she had dismissed her claim against Dr. McMillan with prejudice. It noted that under Maryland law, Ms. Harris could have sued Women First under a theory of respondeat superior without suing Dr. McMillan at all. It ruled that the voluntary dismissal with prejudice of Dr. McMillan was neither a release nor an adjudication upon the merits in favor of Dr. McMillan so as to preclude vicarious liability on the part of Women First and found that Ms. Harris did not intend to foreclose her claim against Women First by dismissing her claim against Dr. McMillan.

         The court went on the say that even though it had denied the motion for judgment and it was not necessary for it to exercise revisory power to change Ms. Harris's "motion to dismiss to one without prejudice[, ]" it had the power to do so. It then proceeded to do so:

I don't believe I need to [exercise revisory power] based on the ruling I've made, but so the record is clear, I do believe that I do still retain revisory power, because this was the plaintiff's action, it is not a judgment that has been entered, and it is an interlocutory proceeding, as I understand the statute and the case law, so that it is clear that this Court has found that the plaintiff's claim for respondeat superior does remain active, notwithstanding the action of the dismissal, which I believe was fully part of a negotiating discussion that was between plaintiff and defendant.
I am going to exercise revisory power and amend [Ms. Harris's] motion to dismiss [Dr. McMillan] as a motion to dismiss without prejudice, because I do not believe that the facts in any way support [Ms. Harris's lawyer's] having endeavored to undermine the claim of [their] client as on the cusp of the trial beginning and was in response to the issue of if and when any judgment might be obtained and Dr. McMillan's ability to pay that judgment individually.

         The court directed the clerk to enter a new, separate docket entry amending Ms. Harris's "motion to dismiss as to Dr. McMillan individually without prejudice[.]" That entry states:

Court revises plaintiff's motion/stipulation at [previous docket entry] and is amended to dismiss as to Dr. McMillan individually without prejudice.
There was no written order dismissing Ms. Harris's claim against Dr. McMillan with or without prejudice.

         In its case, Women First called Dr. McMillan, who defended her care, and three expert witnesses: Craig Dickman, M.D., an OB-GYN; Harry Johnson, M.D., an OB-GYN and urogynecologist; and Stanley Redwood, M.D., a urologist. As with Ms. Harris's experts, we shall discuss their testimony when we address Question III.

         After Women First rested its case, it renewed its motion for judgment on the grounds previously asserted. The court denied the motion. Over objection, Ms. Harris's lawyer called Dr. Karr as a rebuttal witness.

         The jurors returned a verdict in favor of Ms. Harris, finding that Dr. McMillan had negligently caused the injury to Ms. Harris's left ureter and that Women First was liable to Ms. Harris for Dr. McMillan's negligence. They awarded Ms. Harris $426, 079.50 in damages.[5]

         Women First filed a timely motion for judgment notwithstanding the verdict ("JNOV"), arguing, on the same grounds raised in its motion for judgment, that the case should not have been submitted to the jury.[6] Women First requested, in the alternative, a new trial. The parties filed several memoranda in support and opposition. The court held a hearing and issued an opinion and order denying the JNOV motion.

         On appeal, Women First presents three questions, which we have rephrased as follows:[7]

I. Did the trial court err by denying Women First's motions for judgment and for JNOV?
II. Did the trial court abuse its discretion by revising Ms. Harris's motion to dismiss Dr. McMillan to be "without prejudice" rather than "with prejudice"?
III. Did the trial court err by permitting Ms. Harris to call Dr. Karr as a hybrid fact and expert rebuttal witness?

         We answer these questions in the negative and shall affirm the judgment of the circuit court.



         Women First contends Ms. Harris's dismissal with prejudice of her negligence claim against Dr. McMillan discharged any vicarious liability of Women First, as a matter of law. It argues that, in Maryland, a voluntary dismissal with prejudice is an "adjudication [up]on the merits" in favor of the party being dismissed, and when that party is an employee, the dismissal precludes respondeat superior liability on the part of the employer. Therefore, Ms. Harris's voluntary dismissal of her claim against Dr. McMillan with prejudice foreclosed her claim against Women First, regardless of whether Ms. Harris intended that effect, and the court erred in denying its motions for judgment and JNOV.

         Ms. Harris responds that when there is no claim of independent liability on the part of the employer, but only of liability under respondeat superior based on the employee's wrongdoing, a dismissal with prejudice of the claim against the employee without a settlement or exchange of consideration is not a release of claims or an adjudication upon the merits and therefore does not foreclose the plaintiff's claim against the employer.

         Whether the court erred in denying Women First's motions for judgment and JNOV is a question of law that we review de novo. Walter v. Gunter, 367 Md. 386, 392 (2002) ("[W]here the order involves an interpretation and application of Maryland statutory and case law, [the appellate court] must determine whether the lower court's conclusions are 'legally correct' under a de novo standard of review.").

         Under the doctrine of respondeat superior, an employer is vicariously liable for a tort committed by its employee while acting within the scope of his employment:

Respondeat superior, or vicarious liability as it is also known, is a principle of tort law which "means that, by reason of some relationship existing between A and B, the negligence of A is to be charged against B, although B has played no part in it, has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it."

James v. Prince George's Cty, 288 Md. 315, 332 (1980), superseded by statute on other grounds, as recognized in Prince George's Cty v. Fitzhugh, 308 Md. 384 (1987) (quoting W. Prosser, Handbook of the Law of Torts § 69, at 458 (4th ed. 1971)). As we explained in Rivera v. Prince George's County Health Department., 102 Md.App. 456, 475-76 (1994), "[v]icarious liability is . . . the attribution of a wrongdoer's actions to an innocent third party by virtue of the relationship between the wrongdoer and the third party" so that, upon a showing of agency, there is not one, but two, sources of recovery.

         It is settled law in Maryland that a plaintiff may sue an employer in tort based on the wrongful conduct of the employee, under respondeat superior, without suing the employee. Blaen Avon Coal Co. v. McCulloh, 59 Md. 403, 418 (1883) (stating that when agent commits tort while acting within the scope of his employment, "he and his employer may be sued separately or jointly, at the election of the injured party"); see also Southern Mgmt. Corp. v. Taha, 378 Md. 461, 482 (2003). In other words, the employee is not a necessary party. In the suit against the employer, the plaintiff need only prove that the employee committed the tort and did so while acting within the scope of his employment to establish the employer's liability. Taha, 378 Md. at 481-82

         Thus far, the Maryland appellate courts have recognized two situations in which the resolution of a tort claim against an employee acting within the scope of his employment will preclude respondeat superior liability on the part of the employer: exoneration of the employee, Southern Management Corp. v. Taha, supra; and release of the employee, Anne Arundel Medical Center, Inc. v. Condon, 102 Md.App. 408 (1994).

         In Taha, the plaintiff sued two employees of Southern Management Corporation ("SMC") for malicious prosecution and also sued SMC based solely on respondeat superior. A jury returned a special verdict in favor of the employees, finding that they did not commit the alleged wrong, but against SMC. The case reached the Court of Appeals, which reversed, holding that the verdict against SMC "[could not] stand" because it was "irreconcilably inconsistent" with liability under the doctrine of respondeat superior. Id. at 479. The Court explained that "a corporation without the capacity to exercise judgment" cannot be held liable based on respondeat superior "without evidentiary proof that one of its employees, acting within the scope of that person's employment duties, engaged in conduct sufficient to form a prima facie case of [the alleged tort]." Id. at 481 (citing DiPino v. Davis, 354 Md. 18, 48 (1999), for the proposition that "where liability is derivative, 'recovery may not be had against the entity if the employee is found not to be liable or is released'"). "[W]hen the jury has exonerated the co-defendant employees whose conduct was alleged to be the sole basis of the claim for liability[, ]" the employer cannot be held liable vicariously. Id. at 486 (additional citations omitted).

         In Condon, the plaintiff filed suit against a pathologist and the hospital that employed him, alleging that by negligently misreading tissue samples the pathologist failed to diagnose her breast cancer. Her claim against the hospital was based solely on respondeat superior. On the eve of trial, she entered into a settlement with the pathologist, executing a release of all claims against him in consideration for the payment of $1 million dollars.[8] The release stated that it was not intended to release the plaintiff's claim against the hospital. The hospital, which did not consent to the settlement or the release, promptly moved for summary judgment, arguing that by operation of law the release of the plaintiff's claim against the pathologist released her vicarious liability claim against the hospital. The court denied the motion, and the case was tried against the hospital, resulting in a jury verdict for Condon.

         The hospital appealed and we reversed. We explained that under the common law of agency, which prevails in Maryland, the release of an agent discharges his principal from liability. Condon, 102 Md.App. at 414. Also under the common law, when two or more tortfeasors jointly cause an injury to a plaintiff, the release of one joint tortfeasor releases them all. The latter common law rule has been superseded by the Maryland Uniform Contribution Among Tort-feasors Act ("UCATA"), however. Md. Code (1974, 2013 Repl. Vol.), § 3-1401 et seq. of the Courts and Judicial Proceedings Article ("CJP"). The UCATA provides that a plaintiff's release of a claim against one joint tortfeasor does not discharge the others from liability unless the release so provides, but reduces the plaintiff's claim against the remaining joint tortfeasors. CJP § 3-1404.

         In deciding whether the release of the pathologist discharged the hospital from liability, we analyzed whether the ...

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