Morgan v. Cohen

Decision Date01 September 1986
Docket NumberNos. 53,s. 53
PartiesDarlyn MORGAN v. Edward R. COHEN. Wendy C. HOVERMILL v. Edward R. COHEN. ,
CourtMaryland Court of Appeals

Gary I. Strausberg (Gary L. Alexander, Melnicove, Kaufman, Weiner, Smouse & Garbis, P.A., on brief), Baltimore, for Morgan.

Alfred L. Scanlan, Jr. (Whiteford, Taylor & Preston, on brief), Washington, D.C., Larry M. Waranch (Bryan D. Bolton and Shapiro & Olander, on brief), Baltimore, for Cohen.

Edward S. Digges, Jr., Jack L. Harvey and Digges, Wharton & Levin, on brief, for Motor Vehicle Mfrs. Ass'n of United States, Inc. and The Product Liability Advisory Council, Inc. and William H. Crabtree, Gen. Counsel and Edward P. Good, Sr. Atty., of Counsel, on brief for Motor Vehicle Mfrs. Ass'n of United States, Inc.

John J. Sellinger, Rockville, for Hovermill.


ADKINS, Judge.

These two consolidated appeals present a common question: Whether a general release, executed in settlement of a damage claim against the operator of a motor vehicle whose negligence caused injury, also releases a physician who subsequently treats the injury. For the reasons set forth below, we hold that a general release of the original tortfeasor does not discharge the physician as a matter of law. The release of the physician depends on the intent of the parties, and where, as here, the releases are ambiguous in this respect, summary judgment for the physician is precluded.


First, we recount the facts of the two cases.

Appeal No. 53--Morgan

On 20 July 1980, appellant Darlyn Morgan was riding as a passenger on a motorcycle operated by Frank Armetta when it overturned. She was taken to Franklin Square Hospital where she was treated by appellee, Dr. Edward R. Cohen, an orthopedic surgeon, for a comminuted fracture of the left femur. According to Morgan's affidavit filed in opposition to Dr. Cohen's motion for summary judgment, Dr. Cohen operated on Morgan's leg, at which time he implanted an intermedullary rod. Following surgery Dr. Cohen told Morgan that the operation had been successful and that she would be able to walk in three to six months. Morgan was not, however, able to put weight on the injured leg. Thereafter Dr. Cohen informed her that "a second operation would be necessary to heal [her] leg injury." He performed the second operation in March of 1982, again claiming success and telling Morgan not to worry about her leg as "everything would be fine."

In June of 1982 Morgan settled her claim against Armetta and in consequence thereof executed a "RELEASE OF ALL CLAIMS." It provided, in relevant part, that Morgan did "release ... Frank Armetta and Puritan Insurance Company ... and all other persons ... of and from any and all claims, [and] damages which the undersigned now has ... or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries ... and the consequences thereof, resulting or to result from the accident" of 20 July 1980.

Approximately ten months later, Dr. Cohen informed Morgan that the operation had been unsuccessful and referred her to another physician who performed a third operation. The other physician was able to achieve union of the bone, enabling it to heal, but as a result of Dr. Cohen's negligent treatment, says the affidavit, Morgan's left leg is now two inches shorter than her right.

Appeal No. 54--Hovermill

On 2 March 1979, appellant Wendy R. Hovermill, then a minor, was struck by an automobile operated by James Jones. She was treated by Dr. Cohen for a dislocation of her left hemipelvis. According to affidavits filed in opposition to Dr. Cohen's motion for summary judgment, Dr. Cohen ordered Hovermill to be placed in a pelvic sling, a form of traction. When x-rays showed the dislocation to be fundamentally reduced, Dr. Cohen discontinued traction and allowed Hovermill to walk. This caused an immediate redislocation of the pelvis with the result that Hovermill now has "a one-inch leg length discrepancy, a fused sacroiliac joint, an asymmetrical pelvis and a grossly deformed bony birth canal which is much reduced in size." According to the affidavit of a proposed expert witness the redislocation was caused by Dr. Cohen's discontinuance of traction at a "medically inappropriate" time.

Hovermill, as a minor acting through her mother, and her mother individually, brought suit against Jones. The suit was settled and an order of satisfaction signed directing the clerk to enter the case as "PAID, SETTLED AND SATISFIED." Pursuant to the settlement, Hovermill's mother executed a release which released "Jones ... and all other persons ... from any and all claims [and] damages ... of whatsoever kind or nature, and particularly on account of ... bodily injuries, known and unknown and which have resulted or may in the future develop, sustained by [Hovermill] in consequence of [the] accident...."

The Cases Now Before Us

Morgan sued Dr. Cohen in the Circuit Court for Baltimore City. Hovermill sued him in the Circuit Court for Baltimore County. 1 Both plaintiffs sought to recover for harm caused by allegedly negligent treatment of the injuries they had suffered in the motor vehicle accidents. In both cases the trial courts granted summary judgment for Dr. Cohen. In Morgan's case the decision was based solely on the release. In Hovermill's the trial court characterized the alleged negligent treatment as an aggravation of a single bodily injury and held that that single injury had been both satisfied and released. Both cases were appealed to the Court of Special Appeals; we granted certiorari while they were pending there.


Morgan and Hovermill urge us to give retrospective effect to Code, Art. 79, § 13, as enacted by Chapter 379, 1986 Md.Laws. 2 They importune us to adopt the "modern rule" now often applied to releases of the kind before us. 3 They claim that the harms inflicted by Dr. Cohen were separate from those inflicted by the original tortfeasors. Morgan argues estoppel. Additionally, both assert that the releases are ambiguous, so that parol evidence is admissible to determine the intent of the parties. Because we view this last issue as dispositive, we need not and do not address the others. But before we discuss this dispositive issue, some general background in this area of tort law will be helpful.


It is a general rule that a negligent actor is liable not only for harm that he directly causes but also for any additional harm resulting from normal efforts of third persons in rendering aid, irrespective of whether such acts are done in a proper or a negligent manner. See Restatement (Second) of Torts § 457 (1964); see also Kyte v. McMillian, 256 Md. 85, 259 A.2d 532 (1969) (rule recognized in dicta ). The reasoning behind this rule is that the original tortfeasor by his actions places the plaintiff in a position of danger and should be held accountable for the risks inherent in treatment and rendering aid.

When a physician negligently treats the injuries, he also becomes liable to the plaintiff, but only for the additional harm caused by his negligence. See Restatement (Second) of Torts § 433A comment c (1964); W. Prosser & W. Keeton, The Law of Torts § 52, at 352 (5th ed. 1984). Courts in general have correctly characterized the negligent treatment as a subsequent tort for which the original tortfeasor is jointly liable. See, e.g., Trieschman v. Eaton, 224 Md. 111, 115, 166 A.2d 892, 894 (1961) ("successive wrongdoers liable for the same harm"); Williams v. Physicians & Surgeons Comm. Hosp., 249 Ga. 588, 292 S.E.2d 705 (1982); Fieser v. St. Francis Hospital & School of Nursing, 212 Kan. 35, 510 P.2d 145 (1973). This state of the law is conceptually clear enough, although it may produce difficult problems of proof because of the need of apportionment between the damages caused only by the negligent treatment and those caused by the original negligence. That particular difficulty is not before us now. What does concern us are problems created by failure to distinguish between jointly liable concurrent or successive tortfeasors on the one hand and true joint tortfeasors as they existed at common law.

As Dean Prosser has noted, careless analysis and statutory change have led to the confusion of jointly liable concurrent or successive tortfeasors with true "joint tortfeasors" at common law. See Prosser, Joint Torts and Several Liability, 25 Calif.L.Rev. 413 (1937). The early "joint tortfeasor" cases were limited to defendants who acted in concert, and the act of one was considered the act of all. Damages in those cases were entire; that is, each defendant was liable jointly and severally with the others for all of the damages. That is because there was but one wrong, though its commission was a joint enterprise, and therefore there was but a single cause of action. It is easy to see that a judgment against one joint tortfeasor would excuse the rest, because the judgment would extinguish the cause of action.

On the other hand, defendants who did not act in concert could not be joined, even though they had done identical acts that had combined to cause a single harm. 4 It was not until many states adopted Codes in the 19th Century that courts began to settle all claims connected with a transaction in a single suit, but not without much struggle and a good deal of confusion. See Prosser, 25 Calif.L.Rev. at 415-17. The term "joint tortfeasor" became applicable to concurrent tortfeasors as well as those acting in concert. But as the rules of joinder gradually became flexible the common law notion of an identity of a cause of action continued to haunt the case law.

Furthermore, as these developments were taking place,

[a]t the same time there developed a...

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