The Maryland Court of Appeals granted cert in five cases yesterday. One of the cases, Davis v. Frostburg Facility Operations, is of interest to Maryland medical malpractice lawyers because it addresses the question of what constitutes an allegation of medical malpractice that invokes the Maryland Health Claims Act.
Davis is a nursing home type case. According to the Complaint, the Plaintiff was admitted to Frostburg Village, a nursing rehabilitation center in Allegany County, following back surgery. Two days later, Plaintiff’s mattress came loose from her bed and “slid off the bed frame, causing Ms. Davis to fall to the floor.” The facility used a mechanical lift to put the woman back in bed because Frostburg is a no lift facility. The nurse allegedly used the lift improperly — releasing the net holding the patient too soon — and dropped her on the floor.
These are just the allegations in the Complaint. But for lawyers handling nursing home cases — on either side of the aisle — the allegations ring true. Plaintiff’s claim that the nurse had never used the lift before rings true to my biased ears.
Why? Great question. The lawyer’s reasoning was that the victim was not receiving medical treatment or services when the nurse dropped her to the floor. Instead, the thinking goes, the nurse was merely attempting to return the woman to her bed after the fall.
In principle, this is not an unreasonable position. The average layperson probably would not view this lifting of the patient as medical care. The problem is that the case was filed a day before the statute of limitations. So you are making a big bet by skipping Health Claims. Because there is no path if the case is dismissed after the statute of limitations has passed. If the case gets dismissed, you can always refile the claim if you are within the three-year period.
In practical terms, you can lose if you win. Even if Plaintiff prevails in the Maryland Court of Appeals, was it worth the time, hassle, and stress to fight this fight? We have an intentional tort case where a since suspended doctor was accused of sexual battery of a patient that led to significant emotional injuries. We are still filing this claim in Health Claims. Because we could lose if an issue is made of it (even though we would ultimately win).
The Trial Court and Court of Special Appeals Opinions
Plaintiff filed suit in Allegany County Circuit Court. Frostburg’s defense lawyers, Franklin & Prokopik, filed a motion to dismiss. Judge W. Timothy Finan heard the argument and dismissed the case. In an unreported opinion, the Maryland Court of Special Appeals affirmed.
Was the Plaintiff Receiving Medical Treatment?
Plaintiff’s best argument is that lifting someone off the floor is not medical treatment. You need not be a health care provider to perform this function. Plaintiff argued there is a precedent for in Maryland for not categorizing this negligence as healthcare. The plaintiff cited three key Maryland case to make this point: Nichols v. Wilson, 296 Md. 154 (1983); Afamefune v. Suburban Hospital, Inc., 385 Md. 677 (2005); Swam v. Upper Chesapeake, Md. 528 (2007).
The appellate court quickly distinguished these cases. Nichols and Afamefune were intentional tort claims. Swan involved an injury to someone who was not receiving medical treatment.
Is the Defendant a Health Care Provider?
Section 3-2A-01(f) defines “health care provider” as
A hospital, a related institution as defined in § 19-301 of the Health-General Article, a medical day care center, a hospice care program, an assisted living program, a freestanding ambulatory care facility as defined in § 19-3B-01 of the Health-General Article, a physician, an osteopath, an optometrist, a chiropractor, a registered or licensed practical nurse, a dentist, a podiatrist, a psychologist, a licensed certified social worker- clinical, and a physical therapist, licensed or authorized to provide one or more health care services in Maryland.
See § 3-2A-01(f)(1), p. 20.
Section 19-301(o) of the Health-General Article defines a “related institution” as:
An organized institution, environment, or home that:
(i) Maintains conditions or facilities and equipment to provide domiciliary, personal, or nursing care for 2 or more unrelated individuals who are dependent on the administrator, operator, or proprietor for nursing care or the subsistence of daily living in a safe, sanitary, and healthful environment; and
(ii) Admits or retains the individuals for overnight care.
This argument is actually the first step in the process before the question of whether the plaintiff received medical treatment. But it is the weakest argument to suggest that Frostburg Village is not a health care provider. Plaintiff received medical services and monitoring in her rehabilitation exercise sessions. As an overnight resident, her stay is with a health care provider. It is hard to argue otherwise.
What about the non-malpractice counts?
Plaintiff also argued that her breach of contract, consumer protection, and loss of consortium counts should be considered even if the malpractice claim fails. We addressed breach of contract in malpractice cases on Monday that came after this opinion. The court agreed with the defendant that the Plaintiff did not state a cause of action for the breach of contract and the consumer protection count. (Loss of consortium is a claim that is derivative of a tort claim.) But the court made a larger point that was not touched on in the briefs. Citing Nichols, the court held that even if a cause of action was stated in those counts, all counts would be arbitrable if the malpractice claim was arbitrable. “We believe this result consonant with the efficient administration of justice and, of course, it avoids the piecemeal resolution of controversies.” It is hard to argue with the logic of this although, in the real world, the cases would eventually be merged, anyway.
Maryland Law Is on the Wrong Side of This
I was listening to a Tim Ferris podcast today where he was interviewing a track coach. The coach said the goal is to take the mystery out of what makes a person fast so that speed is only a litmus test of talent and how hard the athlete works.
This is how the law should be, right? The best facts win. Why should this victim be left without a remedy? It is the triumph of form over substance. But this is how our legislatures have set up Maryland medical malpractice law. We spend so much time in the weeds worrying about this granular nonsense that we lose focus on who should win. Truth, justice, and all of that. The Maryland Court of Appeals should take a stand and say we cannot let these details derail an otherwise good claim. The Maryland legislature should also work to make our malpractice laws a search for what really happened and who, if anyone, is culpable. But that is all pie in the sky stuff. Plaintiff has an uphill battle in this fight.
- More on Maryland nursing home cases