Rios v. Montgomery County

• Decision Date: 07 April 2005
• Docket Number: No. 71,71
• Citation: 872 A.2d 1,386 Md. 104
• Parties: Nelly RIOS, as Parent and Next Friend of Her Son, Luis Fernando Rios v. MONTGOMERY COUNTY, Maryland, et al.
• Court: Maryland Court of Appeals

872 A.2d 1

386 Md. 104

Nelly RIOS, as Parent and Next Friend of Her Son, Luis Fernando Rios v. MONTGOMERY COUNTY, Maryland, et al.

No. 71, September Term, 2004.

Court of Appeals of Maryland.

April 7, 2005.

John J. Sellinger (Brian C. Johnston, on brief), Silver Springs, for petitioners.

Karen L. Federman Henry, Principal Counsel for Appeals (Charles W. Thompson, Jr., Cty. Atty., Charles L. Frederick, Assoc. Cty. Atty., on brief), for respondents.

David M. Kopstein, Seabrook, Bruce M. Bender, Rockville, amicus curiae.

Beth Mellen Harrison, Francis D. Murnaghan, Jr. Appellate Advocacy Fellow, amici curiae.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BATTAGLIA, J.

This case arises under the 180-day notice provision of the Local Government Tort Claims Act [hereinafter "LGTCA"], Md.Code (1987, 2002 Repl.Vol., 2004 Cum. Supp.), § 5-304 of the Courts and Judicial Proceedings Article.¹ We have been asked to determine whether the 180-day notice provision as applied to minors violates the Federal Constitution and Article 19 of the Maryland Declaration of Rights. We also have been asked to review the Circuit Court's holding that the "good cause" exception contained in Section 5-304(c) of the LGTCA was not satisfied under the facts of this case. Because we find that the 180-day notice requirement of the LGTCA is constitutional as applied to minors, and that the Circuit Court did not abuse its discretion in concluding that good cause did not exist, we shall affirm.

I. Background

Nelly Rios Saravia [hereinafter "Ms. Rios"], formerly of Bolivia, immigrated to the United States in 1983. She subsequently returned to Bolivia and later reentered the United States in 1987 with her husband, Luis Rios [hereinafter "Mr. Rios"]. In 1991, Ms. Rios became pregnant, and a friend referred her to a clinic in Rockville operated by the Montgomery County Health Department to obtain prenatal care.

During an appointment at the clinic on June 17, 1991, Ms. Rios signed a form written in Spanish, entitled "Maternity Programa De Maternidad Pruebra De Domicilio," on which she represented that she was a resident of Montgomery County, Maryland. The words "Montgomery County Government" appeared in large letters at the top of the form with the County seal, and at the bottom of the form appeared the words "Department of Health, Division of Family Health Services" with the Department's address. The form instructed the "person requesting service" to "report all changes in ... residency (within 14 days) to the Montgomery County Health Department." Ms. Rios also signed a document called a "Face Sheet" that contained the words "Montgomery County" at the top.

In 1991, Dr. Richard Footer, M.D. was employed part-time by Montgomery County in a program called, "Project Delivery." On December 31, 1991, while Ms. Rios was in labor at Holy Cross Hospital of Silver Spring, Inc. [hereinafter "Holy Cross"], Dr. Footer was on call. Although Dr. Footer had never previously met Ms. Rios and had never provided prenatal care to her at the clinic, he delivered Mr. and Ms. Rios's son, Luis, on that date. The only payment made by Ms. Rios for Luis's delivery was made to Holy Cross Hospital.

Luis weighed ten pounds, five ounces at birth, and his size apparently complicated the delivery. During labor, Luis's anterior shoulder became lodged, and Dr. Footer used forceps to deliver him, which resulted in a sulcar tear² and a fourth degree tear of the brachial plexus.³ Luis now suffers from Erb's Palsy,⁴ a permanent condition. Ms. Rios paid Holy Cross, not Montgomery County, for the costs accrued from Luis's birth.

Although Luis's injury was apparent at birth, Petitioner did not provide notice of the malpractice claim to the County until almost a decade later on April 6, 2001. On May 11, 2001, Petitioner filed a claim for negligence with the Maryland Health Claims Arbitration Office. After arbitration was waived, Ms. Rios filed a negligence suit against Dr. Footer and Montgomery County on July 24, 2002, as Luis' next friend,⁵ seeking to recover for Luis's injuries.⁶

Ms. Rios was deposed through a Spanish interpreter on June 6, 2002. She testified that she spoke very little English in 1991 and did not know how to read English when she went to the clinic on her initial visit. She acknowledged, however, that the "nurses spoke Spanish" and helped her to complete the forms and to communicate with the doctor. Ms. Rios estimated that she visited the clinic approximately twelve times and paid $ 8.00 per appointment, but maintained that she "did not know that it was a clinic run by the County" or that Dr. Footer was a County employee. The following deposition testimony is pertinent to the issues at bar:

[COUNSEL FOR APPELLEES]: What was your status here in the United States in 1990 and 1991?

[MS. RIOS]: I was still here illegally.

[COUNSEL FOR APPELLEES]: You indicated that a friend of yours told you to go to the clinic at 50 Monroe Street?

[MS. RIOS]: Yes.

* * *

[COUNSEL FOR APPELLEES]: You indicated that she [Ms. Rios's friend] said that if you went there, they could help. What did they say they could do for you?

[MS. RIOS]: Because I was told to have a baby and to have — to give childbirth in a hospital would cost about $5,000, and I did not have those resources, sufficient resources to pay that bill, so I was told there at the clinic that they could do that for me for $1,500.

[COUNSEL FOR APPELLEES]: And this was your understanding that this clinic was a clinic that was run by Montgomery County, Maryland?

[MS. RIOS]: No. I just knew it was — I was under the impression that it was a clinic that would help people, but I didn't know anything more about it.

[COUNSEL FOR APPELLEES]: Did you know who ran the clinic?

[MS. RIOS]: No.

[COUNSEL FOR APPELLEES]: Did you know anything about the clinic other than you just go there and you get help?

[MS. RIOS]: Just that I would have to pay less, and that's why I went there.

* * *

[COUNSEL FOR APPELLEES]: Was it your understanding that the clinic was not run by Montgomery County?

[MS. RIOS]: No. I did not know that it was clinic run by the County. I though it was just a public clinic, and that's why you pay the $1,500.⁷

[COUNSEL FOR APPELLEES]: So it was your understanding that it was a public clinic; is that right?

[MS. RIOS]: Yes, but one where you had to pay, but I did not know it was run by the County.

[COUNSEL FOR APPELLEES]: Did you understand that it was run by the government or a government?

[MS. RIOS]: No, I never knew that. I would go once a month for my appointments. I would just sign in, have my appointment, and go back.

[COUNSEL FOR APPELLEES]: At any point in time did you ask any of the individuals there who they worked for?

[MS. RIOS]: No, never. I never would ask anything. I would just go in and come back out.

[COUNSEL FOR APPELLEES]: After your son was born did you ever ask any of the individuals at the clinic who they worked for?

[MS. RIOS]: No, never. I never asked anybody there.

* * *

[COUNSEL FOR APPELLEES]: You also understood when you signed up at the clinic that the clinic was going to provide — was going to have someone deliver your baby; correct?

[MS. RIOS]: Yes. I thought it would be the same doctor that would give me the checkups.

Ms. Rios recalled that, by six months of age, Luis still could not move his hand, and that her husband had visited a lawyer to discuss the matter before Luis was a year old; however, she had "no idea who that lawyer would be."

At his deposition, Dr. Footer stated that he learned of Luis's size "at the time of delivery," and acknowledged that he was surprised at the baby's size. He also recalled that, after the delivery he explained to Ms. Rios that "the baby had nerve damage" and required further examination. Dr. Footer stated that he told Ms. Rios "that we would have to wait and see whether this resolved totally or not." He did not, however, remember discussing with Ms. Rios the risks associated with a forceps delivery, nor did he know whether Ms. Rios was aware that he was paid by the County to deliver her son.

On September 23, 2002, Petitioner filed a "Motion to Waive Requirement of Timely Notice Under the Local Government Tort Claims Act and to Permit Action to Proceed." The motion claimed that "[p]rior to consulting with her current attorney she did not know, and had no reason to know," that Dr. Footer was paid by the County when he delivered Luis. Petitioner also asserted that the defendants would not be prejudiced if the motion were granted because Holy Cross's records regarding Luis's birth are available, and Dr. Footer and Dr. David Solberg, the obstetrical resident who participated in the delivery, "are still available to testify." At the motions hearing on January 29, 2003, Petitioner urged the Circuit Court to find good cause to justify the belated notice based upon the concept of "excusable neglect or mistake."

At the close of the motions hearing, the presiding judge, the Honorable Patrick L. Woodward, determined that even if Ms. Rios lacked actual knowledge that the clinic was a County facility and that there was a relationship between Dr. Footer and the County, she had "an affirmative duty to inquire as to the legal identity of the Defendant." According to the Circuit Court, even a "minimum inquiry" would have led Ms. Rios to discover Dr. Footer's connection to the County. In expressing his reasoning, Judge Woodward determined that the appropriate standard to apply is that of due diligence and that Ms. Rios failed to exercise any due diligence, stating:

The problem is that for a period of over eight and a half years, there's no evidence that [Ms. Rios] did anything to investigate or prosecute her claim. This was a situation where it was a patent injury, it was not a latent injury; she was aware of that injury, she was aware of the circumstances surrounding the occurrence of the injury. She was aware that her husband

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