Is it a defense in a medical malpractice case to show that subsequent providers were negligent and caused the injury?

Copsey v. Park, 228 Md. App. 107, 137 A.3d 299 (2016), cert. granted, 449 Md. 408, 144 A.3d 704 (2016)



Negligence, Superseding causation: In the plaintiffs’ medical malpractice action asserting that the defendant physician negligently misread the decedent’s MRI/MRA brain exam six days before the decedent suffered a fatal stroke, the circuit court did not err in admitting evidence of the negligence of subsequent treating physicians and instructing the jury on superseding causation because when, as here, a doctor asserts a complete denial of liability, evidence of both negligence and causation attributable to a non-party is relevant.

Stroke leading to death.  Subsequent providers settled or dismissed.  Two pretrial motions:  (a) exclude reference to defendant status and (b) exclude evidence of fault of subsequent providers.  Denied.  Jury finds no negligence of first radiologist.  Appealed.  Argued moot.  Contaminated.

The crux of Appellant’s argument is that Dr. Park could not, as a matter of law, have been absolved of liability by the negligent acts of subsequent treating physicians. We disagree and shall explain.

In Martinez, we took up the issue of whether evidence of prior third-party negligence is admissible in a medical malpractice action where the defendant asserts a complete denial of liability.

Our holding in Martinez that “evidence of both negligence and causation attributable to a non-party is relevant where a defendant asserts a complete denial of liability,”

Social host liability: Is the Violation of a Statute Prohibiting The Knowing and Willful of Allowing Minors to Possess or Consume Alcohol Actionable in Negligence?

Kiriakos v. Phillips, 448 Md. 440, 139 A.3d 1006 (2016).


CR § 10-117(b), which contains exceptions not pertinent to the cases before us, states that “an adult may not knowingly and willfully allow an individual under the age  of 21 years actually to possess or consume an alcoholic beverage at a residence, or within the curtilage of a residence that the adult owns or leases and in which the adult resides.”

We view CR § 10-117(b) as a recognition by the General Assembly, based on convincing evidence, that children under 21 are often less able to make responsible decisions regarding the consumption of alcohol and, as a result, are more susceptible to harming themselves or others when presented with the opportunity to drink in excess in a social, peer-pressured setting. It therefore carved out that specific class for special protection against adult social hosts who knowingly and willfully allow consumption of alcoholic beverages on their property.

First, upon a finding that the social host defendant knowingly and willfully allowed a member of the protected class to consume alcohol on the host’s premises in violation of the statute, in an action against the social host brought by or on behalf of the minor or, as in the Kiriakos case, by an injured third party, such conduct–if it substantially contributed to a diminution of the underaged person’s ability to act in a reasonable manner, and thereby caused injury–can be found to be a substantial factor in bringing about the harm to the underage person himself or to a third party

Second, contributory negligence is not a defense in an action by a protected class member against a social host defendant.

Because we rely heavily on the public policy set forth in CR § 10-117(b), we view this knowing and willful standard as a predicate for the limited social host cause of action we evaluate today

Admittedly, the terms “knowing” and “willful” are not usually paired with negligence. But nothing prevents us from superimposing this requirement on a cause of action for social host liability sounding in negligence where an integral statute on which the negligence depends makes knowledge and willfulness pivotal for culpability

For the reasons stated above, we conclude that Kiriakos can maintain a limited social host cause of action against Phillips through common law tort principles, like negligent entrustment, based on the strong public policy evident in CR § 10-117(b). To the extent that the Court of Special Appeals decisions in Hebb or Wright are inconsistent with this conclusion, we overrule them.

If the evidence supported the allegations, a reasonable jury could conclude: (1) Kiriakos’s injuries were a result of Robinson’s drunk driving; (2) Phillips could have anticipated Robinson’s negligent act because both Robinson’s substantial consumption of alcohol and the likelihood of his driving were apparent to Phillips; and (3) the accident occurred within an hour after Robinson left Phillips’s house. These conclusions, if made by the jury, would render Phillips’s conduct a legal cause of Kiriakos’s injuries.64

Can a nursing home arbitration agreement compel wrongful death beneficiaries to arbitrate?

FutureCare Northpoint, LLC v. Peeler, 229 Md. App. 108; 143 A.3d 191(2016)




Contract Law, Arbitration agreement: In a wrongful death action brought by the daughter of a woman who died while residing in a nursing facility, the circuit court properly denied the nursing facility’s motion to compel arbitration, which was based on an arbitration agreement entered into by the decedent, because a decedent’s arbitration agreement ordinarily does not bind the decedent’s family members to arbitrate a claim under the Maryland wrongful death statute.

“While certainly based on the death of another person, [a wrongful death action] is not brought in a derivative or representative capacity to recover for a loss or injury suffered by that person but, rather, is brought by a spouse, parent, or child, or a secondary beneficiary who was wholly dependent on the decedent, to recover damages for his or her own loss accruing from the decedent’s death.” Eagan v. Calhoun, 347 Md. 72, 82, 698 A.2d 1097 (1997).

The wrongful death action is, both in form and substance, a controversy between Ms. Peeler and FutureCare; it is not a continuation of any controversy between Mrs. Butz and FutureCare. Furthermore, Mrs. Butz never owned the right to recover damages under CJP § 3-904 for her own wrongful death, and hence she had no power to bind the person who has that right — Peeler — to an agreement to arbitrate.

In sum, Melitch stands for the proposition that, under some circumstances, the pre-death release of a personal injury claim effectively prevents statutory beneficiaries from establishing an element of a wrongful death claim arising from the same injury.10

An injured party’s agreement to arbitrate a personal in-jury claim, by contrast, does not negate the ability “to maintain an action and recover damages.” In particular, an arbitration agreement does not destroy the viability of the underlying claim “from the outset[,]” (id.), nor does it “affirmatively and purposefully . . . extinguish the underlying claim” as does a pre-death release.

Therefore, we hold that under Maryland law a decedent ordinarily cannot bind his or her wrongful death beneficiaries to arbitrate their wrongful death claims.

What is the difference between a release and a covenant not to sue or a covenant never to sue?

What is the difference between a release and a covenant not to sue or a covenant never to sue?

Kaye v. Wilson-Gaskins, 227 Md. App. 660, 135 A.3d 892, cert. denied, 449 Md. 420, 144 A.3d 710 (2016):



Kaye represents in wrongful termination suit.  Obtains $1.4M verdict.  Client disputes entitlement to attorney’s fees.  Come to agreement and sign release.  Client sues Kaye and others.  Circuit Court grants motion to dismiss or for summary judgment on the basis that Client failed to allege a prima facie case (not on basis of release).  Affirmed on appeal, but CSA also holds release was not unconscionable, was enforceable and barred suit.  Kaye then sues Client for breach of the release.

What is the difference between a release and a covenant not to sue?  A release discharged the right or obligation without regard to who benefitted.  So, when release given, the release is performed; nothing else to do.  No further performance or obligation applies. Therefore, there can be no breach of a release. The covenant not to sue addresses the relationship between the obligor and the obligee. Accordingly, the covenant not to sue had the practical effect of providing an obligor with immunity against those seeking to enforce the underlying obligation.  Release of right do not possess:  is actually a covenant not to sue.  But better treated as a release.  Holds:  (1) prior ruling “law of the case” and (2)

In such an instance, the promise never to sue remains executory in nature. As soon as the obligee’s claim against the obligor becomes viable that claim is discharged automatically as a matter of law. Simultaneously, the obligee’s performance under the covenant never to sue is complete, and the obligee’s obligation is discharged. On the other hand, we will construe a promise never to sue as an ongoing executory promise that can be breached if we can clearly discern from the agreement’s text that the parties intended for the obligor to recover consequential damages resulting from the obligee’s failure to honor that discharge.