Rios v. Montgomery County, No. 00934

• Court: Court of Special Appeals of Maryland
• Writing for the Court: HOLLANDER, J.
• Citation: 852 A.2d 1005,157 Md. App. 462
• Parties: Nelly RIOS v. MONTGOMERY COUNTY.
• Docket Number: No. 00934
• Decision Date: 02 July 2004

852 A.2d 1005
157 Md. App. 462

Nelly RIOS
v.
MONTGOMERY COUNTY

No. 00934, September Term, 2003.

Court of Special Appeals of Maryland.

July 2, 2004.

852 A.2d 1006

Brian C. Johnson (John J. Sellinger, on the brief), Silver Spring, for appellant

Karen L. Federman Henry (Charles W. Thompson, Jr., Charles L. Frederick, on the brief), Rockville, for appellee.

Panel: DAVIS, HOLLANDER, and JAMES R. EYLER, JJ.

HOLLANDER, J.

Nelly Rios, appellant, Parent and Next Friend of her son, Luis Rios, Jr.,¹ instituted a medical malpractice suit in July 2001 against Montgomery County (the "County") and Richard Footer, M.D., appellees, to recover for injuries sustained by Luis at the time of his birth on December 31, 1991. Dr. Footer, an obstetrician, was a County employee when he delivered Luis. Accordingly, appellant filed suit pursuant to the Local Government Tort Claims Act (the "LGTCA" or "Act"), Md.Code (1973, 2002 Repl.Vol.), § 5-301 et seq. of the Courts and Judicial Proceedings Article ("C.J.").

Although Luis was born in 1991, appellant did not file the notice of claim required by C.J. § 5-304 until April 2001. Therefore, appellees moved to dismiss the suit. Upon finding that appellant lacked good cause in filing a belated notice of claim, the Circuit Court for Montgomery County dismissed the case. This appeal followed, in which appellant poses the following two issues:

I. Whether the trial court erred in finding that Appellant had not shown good cause for waiving the requirement of timely notice under Section 5-304(c) of the Local Government Tort Claims Act[.]

II. Whether the 180-day notice requirement of Section 5-304(a) of the Local Government Tort Claims

852 A.2d 1007

Act is unconstitutional as applied to minors[.]

For the reasons that follow, we shall affirm.

FACTUAL SUMMARY²

Nelly Rios, a native of Bolivia, entered the United States in 1983. She subsequently returned to her native Bolivia, and then re-entered the United States in 1987 with her husband, Luis Rios.³ Mr. and Ms. Rios are the parents of Luis. They separated before Luis was two years old and are now divorced.

On June 17, 1991, a friend referred Ms. Rios to a clinic in Rockville to obtain prenatal care. Unknown to appellant, the clinic was operated by the Montgomery County Health Department.

While at the clinic on June 17, 1991, Ms. Rios signed a form, written in Spanish, titled "Maternity Programa De Maternidad Prueba De Domicilio." The words "Montgomery County Government" appear in large letters at the top of the form, in English, along with the County seal. The words "Department of Health, Division of Family Health Services" appear in English at the bottom of the document, along with the address. The English version of the form, included in the record, is titled: "Maternity Program Proof of Residency." According to the English version of the form, by signing the document, appellant represented that she was a resident of Montgomery County. The form also directs the "person requesting service" to "report all changes in ... residency (within 14 days) to the Montgomery County Health Department." In addition, Ms. Rios signed a document called a "Face Sheet." It is written in English, with the words "Montgomery County" at the top.

In 1991, Dr. Footer worked part-time for Montgomery County through his participation in a program known as "Project Delivery." On December 31, 1991, while appellant was in labor at Holy Cross Hospital of Silver Spring, Inc. ("Holy Cross" or the "Hospital"), Dr. Footer was on call. Although Dr. Footer had never previously met Ms. Rios, and never provided prenatal care to her at the clinic, he delivered Luis on that date. Appellant paid the Hospital, not the County, for the costs associated with Luis's birth.

Luis weighed ten pounds, five ounces at birth, and his size apparently was a complication in delivery. During labor, Luis's anterior shoulder became lodged. Consequently, Dr. Footer used forceps to deliver Luis, which resulted in a sulcar tear⁴ and a fourth degree tear of the brachial plexus.⁵ Luis now suffers with Erb's palsy,⁶ a permanent injury.

Although it was known at birth that Luis was injured, Ms. Rios did not provide notice of her malpractice claim to the

852 A.2d 1008

County until almost a decade later, on April 6, 2001. On May 11, 2001, Ms. Rios filed her claim with the Maryland Health Claims Arbitration Office. After arbitration was waived, appellant filed a negligence suit against Dr. Footer and the County on July 24, 2001, seeking to recover for Luis's injuries.⁷

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 June 17, 1991. However, she acknowledged that the "nurses spoke Spanish" and helped her to complete the forms and to communicate with the doctor.

Ms. Rios estimated that she went to the clinic about twelve times, and paid $8 per visit. But, she claimed that she "did not know that it was a clinic run by the county." Ms. Rios stated: "I thought it was just a public clinic...." Nor did Ms. Rios know that Dr. Footer was a County employee. The following deposition testimony is pertinent:

[COUNSEL FOR APPELLEES][⁸]: You indicated that a friend of yours told you to go to the clinic at 50 Monroe Street?

[APPELLANT]: Yes.

* * *

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

[APPELLANT]: Because I was told to have a baby and to have—to give childbirth in the 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 it was your understanding that this clinic was a clinic that was run by Montgomery County, Maryland?

[APPELLANT]: 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?

[APPELLANT]: No.

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

[APPELLANT]: Just that I would have to pay less, and that's why I want there.

* * *

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

[APPELLANT]: No. I did not know that it was a clinic run by the county. I thought it was just a public clinic, and that's why you pay the $1,500.

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

852 A.2d 1009

[APPELLANT]: 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?

[APPELLANT]: 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?

[APPELLANT]: 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?

[APPELLANT]: No, never. I never have 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?

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

Ms. Rios "assume[d]" that her doctor from the clinic would supervise her delivery. At the time of Luis's delivery, she thought she recognized Dr. Footer as the same doctor she had previously seen at the clinic. Appellant noted, however, that she was "under such strong pain" during labor.

Ms. Rios recalled that, by six months of age, Luis was still unable to move his hand, and her husband felt "helpless," "very frustrated" and "desperate." She acknowledged that, before Luis was a year old, her husband saw a lawyer to discuss the matter, but she had "no idea who that lawyer would be."

At his deposition, Dr. Footer recalled that he learned of Luis's size "at the time of delivery," and acknowledged that he was a bit "surprised" by the baby's size. He also recalled that, after the delivery, he discussed with Ms. Rios that "the baby had nerve damage" that required further "evaluation." Dr. Footer said he told Ms. Rios "that we would have to wait and see whether this resolved totally or not." He could not recall, however, whether he discussed with Ms. Rios the risks of a forceps delivery. Nor did Dr. Footer know whether Ms. Rios was aware that he was a County employee. The following excerpt is pertinent:

[COUNSEL FOR APPELLEES]: Do you recall ever telling Mrs. Rios that you were an employee of Montgomery County?

[DR. FOOTER]: No.

[COUNSEL FOR APPELLEES]: Do you know whether or not she knew that you were an employee of the county at the time of her delivery?

[DR. FOOTER]: I don't know.

[COUNSEL FOR APPELLEES]: Have you ever seen any papers or anything that could document an understanding by the patient that she was being delivered by a county employee?

[DR. FOOTER]: I honestly don't know whether that exists. I have never seen anything.

On September 23, 2002, Ms. Rios filed a "Motion to Waive Requirement of Timely Notice Under the Local Government Tort Claims Act and to Permit Action to Proceed" (the "Motion"). She claimed that, "[p]rior to consulting with her current attorney, she did not know, and had no reason to know," that Dr. Footer was an employee of the County when he delivered Luis. Ms. Rios also asserted that the defendants would not be prejudiced if her Motion were granted, because the Hospital

852 A.2d 1010

records regarding Luis's birth are...