State v. Copes

Decision Date05 July 2007
Docket NumberNo. 1063, September Term, 2006.,1063, September Term, 2006.
Citation175 Md. App. 351,927 A.2d 426
PartiesSTATE of Maryland, et al. v. Corethia COPES, Individually, etc.
CourtCourt of Special Appeals of Maryland

Roger K. Picker (J. Joseph Curran, J., Attorney General on the brief), for appellant.

W. Charles Meltmar, Washington, DC, for Appellee.

Panel HOLLANDER, EYLER, DEBORAH S., KENNEY, JAMES A., III (Ret'd, Specially Assigned), JJ.

EYLER, DEBORAH S., J.

On July 12, 2003, Gladys Copes, age 63, died while a patient at the Deer's Head Hospital Center (the "Center"), in Salisbury. The Center is a State-operated long-term nursing facility. Gladys had had several admissions to the Center in the months immediately preceding her death.

Corethia, Christal, and Chantel Copes are Gladys's adult children, and her only living children.1 Corethia is a resident of Salisbury; Christal and Chantel live in Virginia. Corethia was named personal representative under her mother's will. At the time of her death, Gladys was not married.

On July 2, 2004, Corethia's attorney notified the State Treasurer, in writing, that Gladys's death was the result of medical malpractice by health care providers at the Center.

On November 3, 2004, in the Circuit Court for Wicomico County, Corethia, individually and as the personal representative of Gladys's estate, sued the "State of Maryland d/b/a Deer's Head Center" for medical malpractice in one negligence count. She prayed a jury trial. Corethia alleged that Gladys died from a virulent E. coli infection that developed at the site of an ulcer on her leg, and that the ulcer developed because the Center's health care providers incorrectly applied a cast to her leg. She further alleged that the Center health care providers subsequently failed to properly diagnose and treat the infection.

Corethia amended her complaint to divide her claim into two counts, one for survival and one for wrongful death. She subsequently amended her complaint again to name Christal and Chantel as "use plaintiffs." Ultimately, she again amended her complaint to join her sisters as plaintiffs.

The State moved for summary judgment on both counts, arguing that the survival action was barred by sovereign immunity because Corethia did not give timely notice of claim to the State Treasurer as required by the Maryland Tort Claims Act ("MTCA"), Md.Code (2004 Repl.Vol., 2006 Supp.), section 12-101, et seq. of the State Government Article ("SG"); that Christal and Chantel's wrongful death claims also were barred by sovereign immunity because they did not give any notice of claim to the State Treasurer; and that, even though Corethia herself had properly notified the State Treasurer of her wrongful death claim, she could not pursue it, because either all three of the wrongful death beneficiaries could recover for wrongful death or none of them could.

The circuit court granted summary judgment in favor of the State on the survival action and the wrongful death claims of Christal and Chantel, leaving only Corethia's wrongful death claim. That claim was tried to a jury that found in her favor, awarding $175,000 in damages.

The State noted an appeal and Corethia, on her own behalf and on behalf of her sisters, noted a cross-appeal. The State has raised one question and the appellees have raised two. Because the answer to the State's question depends upon the answers to the appellees' questions, we shall reorder them as follows:

By the appellees:

I. Did the circuit court err by granting summary judgment in favor of the State on the survival claim?

II. Did the circuit court err by granting summary judgment in favor of the State on Christal and Chantel's wrongful death claims?

By the State:

III. Did the circuit court err by denying its summary judgment motion as to Corethia's wrongful death claim?

For the following reasons, we shall affirm the judgment in part, reverse the judgment in part, vacate the judgment in part, and remand the case to the circuit court for further proceedings not inconsistent with this opinion.

SOVEREIGN IMMUNITY/MTCA

The State of Maryland, as sovereign, has absolute immunity from suit under common law. That immunity exists unless the State waives it and creates a means to fund the payment of judgments against it. Stern v. Bd. of Regents, 380 Md. 691, 700-01, 846 A.2d 996 (2004). By enactment of the MTCA in 1981, the State, with certain conditions and limitations, did just that.

SG section 12-104(a)(1) provides that, "[s]ubject to the exclusions and limitations in this subtitle and notwithstanding any other provision of law, the immunity of the State and of its units is waived as to a tort action, in a court of the State, to the extent provided under paragraph (2)[.]" Paragraph two limits the liability of the State in a tort action to "$200,000 to a single claimant for injuries arising from a single incident or occurrence." SG § 12-104(a)(2). (The section goes on to create certain exceptions to that limitation, which are not at issue here.) SG section 12-105 confers immunity from suit upon State personnel, for certain wrongs, including negligence.

To sue the State under the MTCA, a claimant first must satisfy the claim requirements of SG sections 12-106 and 12-107. SG section 12-106, entitled "Restrictions on actions[,]" describes the written claim that must be submitted as a condition precedent to the State's waiver of immunity in tort. It states:

(a) Scope of Section.—This section does not apply to a claim that is asserted by cross-claim, counterclaim, or third-party claim.

(b) Claim and denial required.—A claimant may not institute an action under this subtitle unless:

(1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 1 year after the injury to person or property that is the basis of the claim;

(2) the Treasurer or designee denies the claim finally; and

(3) the action is filed within 3 years after the cause of action arises.

SG § 12-106 (emphasis added).

SG section 12-107(a) specifies the information that must be included in the written claim. It directs that the claim shall:

(1) contain a concise statement of facts that sets forth the nature of the claim, including the date and place of the alleged tort;

(2) demand specific damages;

(3) state the name and address of each party;

(4) state the name, address, and telephone number of counsel for the claimant, if any; and

(5) be signed by the claimant, or the legal representative or counsel for the claimant.

SG § 12-107(a).

Finally, pursuant to SG section 12-102, the MTCA "shall be construed broadly, to ensure that injured parties have a remedy."

STANDARD OF REVIEW

In reviewing a decision by a circuit court to grant summary judgment, "[w]e consider, de novo, first, whether a material fact was placed in genuine dispute, thus requiring a trial, and, second, if trial by a fact-finder is not required, whether the [c]ircuit [c]ourt was legally correct in granting summary judgment." Haas v. Lockheed Martin Corp., 396 Md. 469, 478, 914 A.2d 735 (2007) (citing Livesay v. Baltimore County, 384 Md. 1, 9, 862 A.2d 33 (2004)). We conduct an independent review of the summary judgment record and "construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party." Remsburg v. Montgomery, 376 Md. 568, 579-80, 831 A.2d 18 (2003) (citing Todd v. MTA, 373 Md. 149, 155, 816 A.2d 930 (2003)).

DISCUSSION
I. The Survival Action

The State moved for summary judgment on the survival action on the ground that Corethia's claim, as personal representative, was not submitted to the State Treasurer "within 1 year after the injury to the person . . . that is the basis for the claim," as required by SG section 12-106(b)(1). Specifically, according to the State, Gladys's "injury," within the meaning of the MTCA, occurred no later than June 2, 2003; yet Corethia, as personal representative, submitted the written claim to the State Treasurer on July 2, 2004, more than one year later.2

Corethia filed an opposition to the summary judgment motion. She did not argue that there was any genuine dispute of material fact that would preclude the entry of summary judgment. Rather, she argued that "the injury to Gladys [] occurred on July 12, 2003, the day she died"; and that, because "[c]ase law in Maryland clearly establishe[s] that the date of injury, not the date of negligence, is the date from which the one year notice requirement starts[,]" the claim was timely submitted on July 2, 2004, less than one year after the date of death.3

The circuit court granted summary judgment in favor of the State on the survival claim on the ground that Corethia's written claim was not timely submitted under SG section 12-106(b)(1).

Facts Material to the Survival Action

The undisputed material facts before the court on summary judgment, viewed in the light most favorable to Corethia as the non-moving party, were as follows. On December 4, 2002, Gladys fell at home, breaking her right kneecap. She was admitted to the Center for care related to this injury. At the time of her admission, she was suffering from a multitude of long-standing medical problems, including chronic kidney failure, for which she was on hemodialysis; insulin-dependent diabetes with associated eye inflammation and kidney disease; high blood pressure; high cholesterol; and a history of arrhythmias for which a pacemaker had been implanted.

As part of the treatment for Gladys's broken kneecap, health care providers at the Center placed an "immobilizer device" (a type of cast) on her right leg. On December 11, 2002, a physician noted that Gladys had developed blisters on her right ankle "due to irritation from [illegible] immobilizer."

Gladys was discharged from the Center on December 27, 2002.

Less than one month later, on January 21, 2003, Gladys was admitted to Peninsula Regional Medical Center ("PRMC"...

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