McCoy v. Hatmaker

• Decision Date: 26 December 2000
• Docket Number: No. 2936,2936
• Citation: 763 A.2d 1233,135 Md. App. 693
• Parties: Linda McCOY, et al. v. Billie HATMAKER, et al.
• Court: Court of Special Appeals of Maryland

763 A.2d 1233

135 Md. App. 693

Linda McCOY, et al. v. Billie HATMAKER, et al.

No. 2936, Sept. Term, 1999.

Court of Special Appeals of Maryland.

December 26, 2000.

Michael J. Winkelman (McCarthy & Costello, L.L.P., on the brief), Lanham, for appellants.

Edward W. Brady (Timothy L. Mullin, Jr., Alicia C. Reynolds, Miles & Stockbridge, P.C. and Michael G. Raimondi, on the brief), Baltimore, for appellant Hatmaker.

William R. Phelan, Jr., Prinicipal Counsel, Baltimore, for appellee, Schwaab.

Argued before HOLLANDER, THIEME¹ and KRAUSER, JJ.

THIEME, Judge.

This is an appeal from summary judgment granted to appellees in a wrongful death claim and survival action. Appellant Linda McCoy, individually and as personal representative of the estate of William McCoy, filed a complaint on January 10, 1999, in the Circuit Court for Baltimore City against two Baltimore City employees, paramedic Billie R. Hatmaker and police officer Brian Schwaab; the Baltimore City Police Department;² and the Mayor and City Council of Baltimore City.

Hatmaker and Officer Schwaab filed separate motions for summary judgment, and the court heard these motions and McCoy's opposition to them on January 14, 2000. The City filed a line adopting Hatmaker's pleadings on the same day, although its separate summary judgment motion was not before the court at that time. The court granted Hatmaker's and Schwaab's motions at the hearing, and it later granted Baltimore City's motion for summary judgment on February 10, 2000. This appeal followed, and McCoy now asks:

1. Did the court below err in considering and granting appellees' motions for summary judgment on the basis that appellant failed to make a prima facie showing of gross negligence on the part of appellees Hatmaker and Schwaab, even assuming the truth of all allegations against them?

2. Did the court below abuse its discretion by striking an affidavit of appellant's expert witness contradicting that witness's deposition testimony, because it included testimony that amounted to a legal conclusion and because appellant submitted it beyond the discovery deadline?

3. Did the court below abuse its discretion when it quashed the subpoena for the deposition of a supervising Lieutenant who investigated the incident and entered a protective order barring, as privileged, discovery of his report?

To these questions, we answer "no" and explain.

Facts

On the evening of January 24, 1996, William McCoy, age 62, was driving himself and a co-worker, Bernard Lowe, to their place of employment. McCoy typically picked up Lowe at about 10:00 p.m. so that the two would arrive in time for their 11:00 p.m. shift.

McCoy, heading north on Hanover Street in Baltimore City, stopped for a red light. As the two men conversed, Lowe recalls, the following took place:

I said something to Bill, and Bill never answered me. I said, "You didn't see that Bill?" I turned around and looked, and I thought Bill dropped his cigarette between his legs because his head was down and his hand was in his lap, and I thought he dropped his cigarette. I'm like, "Hey Bill," and there was no response, no nothing.

The next I know we're going off into the parked cars. I reached over and grabbed the steering wheel. I'm still yelling at him and I grabbed the steering wheel and got it straight back out on the street to keep us from hitting the parked cars. That's how it happened.

Lowe then engaged the emergency brake. When the car had come to a stop, Lowe explains, McCoy was still in the driver's seat, non-responsive to Lowe's efforts to rouse him and making what Lowe described as gargling noises. Lowe left the car and flagged down a passing police car, driven by Officer Irvin Bradley.

He asked me what was going on. I told him something is wrong with my buddy. I said, "All he's doing is gargling. I thought he dropped his cigarette." He heard me yelling, "Bill, Bill," and he walked over, put his hand in the throat area by his ear and stuff I guess to check for a pulse, and he said something.

Officer Bradley told Lowe that McCoy had a "small pulse," then called for assistance on his shoulder radio.

After Officer Bradley called for assistance, Officer Brian Schwaab arrived at the scene. Officer Schwaab is a trained emergency medical services provider who is qualified both as a first responder and an emergency medical technician ("EMT"). At the time, he had been about eight blocks away, patrolling the lower area of the southern district. Responding to Officer Bradley's call for assistance, he estimated that he arrived at the scene within "a minute" of hearing the call. He brought with him a personal resuscitation mask.

Officer Schwaab immediately asked Officer Bradley what had occurred. He also went over to McCoy, ensured that his airway was open, and checked for a pulse. He did not feel one. Before he could start cardiopulmonary resuscitation ("CPR"), however, Officer Schwaab noticed an ambulance, Medic 5, rounding the corner to turn southbound on Hanover Street.

Although appellant now seeks to infer otherwise, the undisputed evidence, including City records and staff testimony, shows that Medic 5 reached the scene only on its second attempt. Medic 5 was initially dispatched at 10:21 p.m. Because of confusion relating to the exact location of McCoy's vehicle, the ambulance initially went to the wrong address. The same rig was then dispatched a second time-in fact, Paramedic Hatmaker, who was with the ambulance, even recorded a new call on the run sheet—at 10:25 p.m., and it reached the scene at about 10:30 p.m. Officer Schwaab greeted the ambulance crew with the news that McCoy was in full cardiac arrest.

Paramedic Hatmaker ran to McCoy's car and assessed his condition. He noted that McCoy, who was slumped over the steering wheel, showed no visible signs of life. He felt no pulse in McCoy's carotid artery. Placing his stethoscope under McCoy's sweatshirt, Hatmaker listened for a heartbeat and heard none.³ Heart sounds, in fact, were entirely absent. Hatmaker next examined McCoy's eyes by opening his eyelids and examining his pupils with a penlight. He observed McCoy's pupils to be fixed and dilated and his sclera dry. He then checked McCoy's body for signs of trauma, including blood, and found none. Finally, Hatmaker observed that McCoy had already released body fluids and his body temperature had already dropped markedly. He thus concluded that McCoy was dead and was not a viable candidate for resuscitation.

Because he considered his job there over, Hatmaker proceeded to complete a Maryland Ambulance Information Sheet regarding the call, then conferred with police, who would summon the Medical Examiner to remove McCoy's body from the car and transport it to the morgue.

In her complaint, appellant alleged that Hatmaker breached his duty of care to McCoy by "failing to render appropriate resuscitation and emergency medical treatment" and "violating the Maryland State Protocols for Cardiac Rescue Technician and Emergency Medical Technician/Paramedic Guidelines for deceased cases" (hereinafter the "Maryland Institute for Emergency Medical Services Systems protocols" or the "MIEMSS protocols"). Appellant asserted that, by committing such a breach, Hatmaker was grossly negligent.

All of appellant's experts were deposed during discovery, including her emergency medical services expert Gerald M. Dworkin, who testified at a deposition on October 20, 1999.

Additionally, on October 15, 1999, appellant noted the deposition of Lieutenant William J. Shelley of the Baltimore City Fire Department. Lt. Shelley had investigated the incident on behalf of the Fire Department's Medical Bureau and had concluded, in his report to the Fire Department chain of command, that Hatmaker had violated some MIEMSS protocols when he treated McCoy.⁴ The report was placed in Hatmaker's personnel file. On November 9, the Baltimore City Police Department moved to quash appellant's subpoena duces tecum and prevent discovery of the report, on grounds that such information was confidential and thus not subject to discovery.

Appellant opposed appellees' motion. On December 15, the court granted that motion, quashed the subpoena for Lt. Shelley's deposition, and entered an order precluding formal discovery of any findings or records of the Fire Department's review of Hatmaker's performance in the McCoy incident. For reasons that are not clear, we note that appellant already possessed a copy of the report in question. The court's order, however, effectively precluded her from using the report.

On December 2, Hatmaker and Officer Schwaab moved for summary judgment, and the City adopted Hatmaker's pleading by line. Appellees argued that, because neither had committed any willful act nor any grossly negligent act or omission under the standard set forth in Tatum v. Gigliotti, 80 Md.App. 559, 565 A.2d 354 (1989),aff'd,321 Md. 623, 583 A.2d 1062 (1991), they were immune from suit under both the Good Samaritan Act, Md.Code (1973, 1998 Repl.Vol.), § 5-603 of the Courts & Judicial Proceedings Article,⁵ and the Fire and Rescue Company Act, Md.Code (1973, 1998 Repl.Vol.), § 5-604 of the Courts & Judicial Proceedings Article.⁶

Appellant opposed the motion, submitting with her opposition an affidavit from Dworkin, in which he opined,

to a reasonable degree of certainty in the field of emergency medical services, the acts and/or omissions of Defendant Hatmaker and Defendant Schwaab constituted not only a breach in the standard of care by falling well below the recognized standards, but that these acts and/or omissions also constituted a reckless disregard for the life of William McCoy and resulted in his death.

The court granted appellees' motion for summary judgment after a hearing on January 14, 2000. At that hearing, Hatmaker moved to strike Dworkin's affidavit on grounds that i) the affidavit could not act to defeat summary judgment under Pittman v. Atlantic Realty Co.,...