Rios v. Montgomery County
Decision Date | 02 July 2004 |
Docket Number | No. 00934,00934 |
Citation | 852 A.2d 1005,157 Md. App. 462 |
Parties | Nelly RIOS v. MONTGOMERY COUNTY. |
Court | Court of Special Appeals of Maryland |
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.
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 Act is unconstitutional as applied to minors[.]
For the reasons that follow, we shall affirm.
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.3Mr. 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.5Luis 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 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:
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:
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 records regarding Luis's birth are available, and Dr. Footer and Dr. David Solberg, the obstetrical resident...
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Doe v. Community College of Baltimore County
...is carried by the local government ultimately responsible for the public officials’ acts.’ " Rios v. Montgomery County , 157 Md. App. 462, 475-76, 852 A.2d 1005, 1012 (2004) (quoting Ashton , 339 Md. at 108, 660 A.2d at 466 ), aff'd , 386 Md. 104, 872 A.2d 1 (2005). Of relevance here, the L......
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...governments generally had no immunity under Maryland common law in either tort or contract actions." See Rios v. Montgomery County, 157 Md.App. 462, 475, 852 A.2d 1005 (2004), affirmed, 386 Md. 104, 124, 872 A.2d 1 (2005). In the early twentieth century, however, the Court of Appeals recogn......
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...compensation is carried by the local government ultimately responsible for the public officials' acts.'" Rios v. Montgomery Cty., 157 Md. App. 462, 475-76, 852 A.2d 1005, 1012 (2004) (quoting Ashton v. Brown, 339 Md. 70, 108, 660 A.2d 447, 466 (1995)), aff'd 386 Md. 104, 872 A.2d 1 (2005). ......
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Whalen v. Mayor & City Council of Baltimore
...governments generally had no immunity under Maryland common law in either tort or contract actions." See also Rios v. Montgomery County, 157 Md.App. 462, 475, 852 A.2d 1005, aff'd, 386 Md. 104, 124, 872 A.2d 1 (2005). In the early twentieth century, however, the Court of Appeals recognized ......
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Table of Cases
...101 A.2d 213 (1953)....................................................................................47, 230 Rios v. Montgomery Cty., 157 Md. App. 462, 852 A.2d 1005 (2004)................................................................................94 Ristaino v. Flannery, !!!76 Md. Ap......
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CHAPTER EIGHT HIGHWAY DESIGN AND MAINTENANCE, ABUTTING LAND OWNERS, AND PUBLIC UTILITIES
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C. [§ 3.203] Local Government Tort Claim Act
...or the defect or circumstances giving rise to the claimant's injury. Cts. & Jud. Proc. II § 5-304(e). In Rios v. Montgomery County, 157 Md. App. 462, 852 A.2d 1005 (2004), the Court of Special Appeals upheld the constitutionality of the notice requirement of the LGTCA, Cts. & Jud. Proc. II ......