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

Decision Date31 May 2017
Docket NumberNo. 00315, Sept. Term, 2016,00315, Sept. Term, 2016
Parties WOMEN FIRST OB/GYN ASSOCIATES, L.L.C. v. Yolanda HARRIS
CourtCourt of Special Appeals of Maryland

Argued by: Larry D. McAfee (Andrew R. Booth, Gleason, Flynn, Emig & Fogelman, Chartered, on the brief), Rockville, MD, for Appellant.

Argued by: Joseph M. Creed (Burt M. Kahn, Steven B. Vinick, Joseph, Greenwald & Laake, PA, on the brief), Greenbelt, MD, for Appellee.

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

Deborah S. Eyler, 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.

FACTS AND PROCEEDINGS

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.

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