Rivera v. Prince George's County Health Dept.

• Decision Date: 01 September 1994
• Docket Number: No. 407,407
• Citation: Rivera v. Prince George's County Health Dept., 649 A.2d 1212, 102 Md.App. 456 (Md. App. 1994)
• Parties: Keisha T. Guadalupe RIVERA, a minor, etc., et al. v. PRINCE GEORGE'S COUNTY HEALTH DEPARTMENT, et al. ,
• Court: Court of Special Appeals of Maryland

Page 456

102 Md.App. 456

649 A.2d 1212

Keisha T. Guadalupe RIVERA, a minor, etc., et al. v. PRINCE GEORGE'S COUNTY HEALTH DEPARTMENT, et al.

No. 407, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Dec. 2, 1994.

W. Ray Ford, Bowie, for appellants.

Denise A. Greig (Kathleen Howard Meredith, P.A., Semmes, Bowen & Semmes, on the brief), Baltimore, for appellee, Prince George's County Health Dept.

J. Joseph Curran, Jr., Atty. Gen. and Joseph Gill, Asst. Atty. Gen., on the brief, Baltimore, for appellee, State of Maryland.

Daniel C. Costello (Andrew E. Vernick and Wharton, Levin, Ehrmantraut, Klein & Nash, P.A., on the brief), Annapolis, for appellee, Oh.

Argued before WILNER, C.J., and CATHELL and MURPHY, JJ.

CATHELL, Judge.

Appellant, Keisha T. Guadalupe Rivera, a minor, bringing suit by her mother and next friend, Maria Rivera, appeals the judgment of the Circuit Court of Prince George's County (Femia, J.), that granted appellee's, Dr. Soo Young Oh's, Motion for Summary Judgment, and granted appellee's, Prince George's County Health Department's, Motion to Dismiss. Appellant alleges that appellees were negligent in their medical treatment and care of Maria Rivera during the time she was pregnant and expecting appellant's birth. The Health Department contends that it is immune from liability in this case. Dr. Oh denies liability. Alleging error in the trial court's judgment in favor of appellees, appellant poses the following questions for our review:

I. Did the trial court err in ruling that the plaintiff's claims against the Health Department were barred by the doctrine of sovereign immunity?

A. Pursuant to Maryland Code Annotated, Article 48A, section 480 if a defendant is both a charitable corporation and a governmental agency is the insurer of the defendant

estopped only from asserting that the insured is exempt as a charitable institution or is the insurer also estopped from asserting that the defendant is exempt as a governmental agency?

B. May the action be brought pursuant to the Maryland Tort Claims Act?

C. Are the claims brought on behalf of Keisha Rivera barred as a consequence of the failure of the claimant to submit a written claim to the State Treasurer within 180 days after the injury to Keisha that is the basis of the claim?

D. Are the claims brought on behalf of Keisha Rivera barred as a consequence of the failure of the claimant to submit any written claim to the State Treasurer?

II. Does the decision of the trial court dismissing the claims brought on behalf of Keisha Rivera against the Health Department bar any further claim or action brought by or on behalf of Keisha Rivera pursuant to the law of the case doctrine?

III. Does the release of Roberto Casas, M.D. operate to release the Health Department from liability asserted upon the doctrine of respondeat superior?

IV. Did Dr. Oh as the obstetrical attending physician have the right to control the conduct of the hospital residents such that he is liable for their negligence, and was his conduct in failing to properly exercise that control negligent? [ ¹

On September 5, 1978, at 2:30 a.m. and 10:00 a.m., a pregnant Maria Rivera ("Ms. Rivera"), appellant's mother, went to Prince George's County Hospital Center ("the Hospital"), complaining of ruptured membranes and pains occurring ten minutes apart. She was examined by a hospital resident on both occasions and instructed to return home. Later that evening, Ms. Rivera sought treatment at a clinic operated by the Prince George's County Health Department ("the Health Department") for the same symptoms. Dr. Roberto Casas examined Ms. Rivera and similarly instructed her to go home. Two more visits to the Hospital on September 7, 1978 produced similar recommendations. Ms. Rivera was then taken to the Hospital the next morning by ambulance. She was admitted at 7:15 a.m. with evidence of fetal distress. A caesarean section was ultimately performed and completed by 9:25 a.m. It was at this point that Dr. Oh was called to approve performance of the operation, as he was the "on call" physician during the first two weeks of September 1978. He is listed on the operative record as a "stand-by" physician. This both began and ended the extent of Dr. Oh's contact with the child. The minor appellant was subsequently diagnosed as suffering from severe mental retardation caused by "hypoxia," a condition where an infection invades the uterus and deprives the fetus of oxygen. This damage to the child had, therefore, necessarily occurred before the caesarean section was performed.

It was determined by expert testimony that a majority of the damage to the child occurred by September 8 at 7:35 a.m. and had undoubtedly been complete by 8:38 a.m., before the caesarean section was performed. There was some dispute as to the exact time Dr. Oh first became aware of Ms. Rivera's condition. As the decision to perform the caesarean section was confirmed at 8:38 a.m. on September 8, it was adduced at trial that he was first contacted sometime between 8:15 a.m. and that time. There was no allegation of any delay on Dr. Oh's part or any negligent conduct by him after he was called.

On January 29, 1990, a claim was filed with the Health Claims Arbitration Office ("HCAO") on behalf of appellant by her mother and next friend, Ms. Rivera, and on behalf of Ms. Rivera, individually. ² Listed as defendants in the action were the Hospital, Dr. Oh, the Health Department, and Dr. Casas. The Health Department's Motion to Dismiss was granted by the Health Claims Arbitration Panel on January 18, 1991. Appellant filed a Notice of Rejection of Award and Action to Nullify the Health Claims Arbitration Award on April 8, 1991. An action commenced in the Prince George's County Circuit Court was stayed pending arbitration of the remaining claims. Appellant entered into settlement agreements with Dr. Casas and the Hospital on April 28, 1992. On April 29, 1992, a Motion for Summary Judgment was then granted by HCAO in favor of Dr. Oh. A second Notice of Rejection and Action to Nullify was filed.

In the circuit court, the Health Department once again moved to dismiss the case, based on a defense of sovereign immunity. In the alternative, the Health Department argued that a release of Dr. Casas, its agent, operated to release the Health Department as his principal. Dr. Oh similarly renewed his Motion for Summary Judgment, denying any negligent conduct or a lack of proximate cause thereof. A January 7, 1994 hearing resulted in a grant of both of appellees' motions by the circuit court. This appeal was then timely filed.

I

Appellant assigns error in the trial court's judgment that her claim against the Department is barred by the doctrine of sovereign immunity. ³ Before the trial judge, she claimed that, in accordance with Maryland law, sovereign immunity had been waived; she had been given permission to sue the State and/or its instrumentalities and provision for the payment of judgments had been made. See Jackson v. Housing Opportunities Comm'n, 289 Md. 118, 123, 422 A.2d 376 (1980). She asserts that the waiver can be found in Article 48A, § 480 of the Annotated Code of Maryland (1957, 1994 Repl.Vol.), which involves charitable immunity. ⁴ Appellant is mistaken in relying thereon for several reasons.

Appellant contends that, according to Cotham v. Board of County Comm'rs, 260 Md. 556, 273 A.2d 115 (1971) (a case involving a hospital operated by the county), "when there's [a] specific waiver as to charitable immunity it doesn't matter whether it's a governmental entity. The charitable immunity applies." We reject that contention. While there can be no doubt that the Health Department is a governmental entity, and appellant concedes as much, the characterization of the Health Department as a charitable institution is less clear. ⁵ An organization's charitable status is determined by an "examination of the stated purposes of the organization, the actual work performed, the extent to which the work performed benefits the community and the public welfare in general, and the support provided by donations." Supervisor of Assessments v. Group Health Ass'n, Inc., 308 Md. 151, 157, 517 A.2d 1076 (1986).

The Health Department is not a separate entity operated by the county as a proprietary function, nor is it supported by donations. Rather, it is established and supported as an agency with public tax-generated funds. It performs governmental functions. These facts would tend to preclude its inclusion within the category of charitable organizations. Therefore, any argument predicated upon a charitable immunity theory is inapposite in the case sub judice. ⁶

Appellant, however, argues that, once the Health Department stated that it was charitably immune in its Answer, it became bound thereby and cannot now argue to the contrary. See Thomas v. Solis, 263 Md. 536, 544 n. 4, 283 A.2d 777 (1971); Matthews v. Kernewood, Inc., 184 Md. 297, 306, 40 A.2d 522 (1945); Parker v. Tilghman v. Morgan, Inc., 170 Md. 7, 25, 183 A. 224 (1936); People's Counsel v. Mangione, 85 Md.App. 738, 745-46, 584 A.2d 1318 (1991). An organization or institution is either charitable or it is not. It is patently clear that the Health Department is a public governmental agency and, in performing its function as such, is providing governmental, not charitable, services. The Health Department, despite the fact that some of its governmental features may resemble charitable services offered by private entities, encompasses no separate and distinct "charitable" features within the meaning of the phrase. Accordingly, it cannot waive its immunity, particularly by way of an erroneous assertion contained in a pleading. See Maryland Rule 2-324(a). The trial court, therefore, correctly held that the Health Department was immune from liability by virtue of its status as an entity of the sovereign, absent any waiver thereof. See Condon, 332 Md. at 492, 632 A.2d 753 (...