Rosebrock v. E. Shore Emergency Physicians, LLC - 221 Md. App. 1, 108 A.3d 423 (2015)

Rule:

Section 3.07(2) of the Restatement (Third) of Agency provides that the death of an individual principal terminates the agent's actual authority. The termination is effective only when the agent has notice of the principal's death. The termination is also effective as against a third party with whom the agent deals when the third party has notice of the principal's death. The purpose of the aforementioned rules is to reduce risks imposed by the common-law rule upon agents and third parties who deal in a manner consistent with the principal's prior manifestations of assent. Consequently, the rules seek to avoid any "harsh consequences" resulting when an agent, unaware of the principal's death, acts in good faith following it. The Court of Special Appeals of Maryland adopts § 3.07(2) to avoid such "harsh consequences." Therefore, actions taken by the agent under his or her authority and prior to notice of the principal's death are valid.

Facts:

After slipping and falling on a wet floor, Judith Phillips was brought to the Emergency Department of Shore System's Memorial Hospital in Easton, Maryland. Dr. Deborah Davis, as attending physician, took a history of the incident from Phillips and then examined her. Dr. Davis's assessment did not include any notation of Phillips experiencing back pain, and the portion of the Emergency Physician Record that provides for documentation of a back examination was left blank. Dr. Davis diagnosed Phillips as having knee and hip contusions. Phillips was subsequently discharged from the hospital. Phillips’ condition worsened, and it was later discovered that she has an acute compression fracture of the L3 vertebrae. While receiving treatment for an infected surgical wound, Phillips sustained a ventricular fibrillation arrest, and as a result, she entered into a persistent vegetative state. Thereafter, Phillips, by and through appellant, Sean Rosebrock, as her guardian, filed a complaint, asserting, among other claims, one count of negligence against appellees, Deborah Davis, M.D.; Eastern Shore Emergency Medicine Physicians, LLC; and Shore Health System, Inc. ("Shore System"). The jury found that Dr. Davis was not negligent in her care and treatment of Phillips. In 2011, appellant filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial, claiming error in the trial court's admission of "habit" testimony pertaining to Dr. Davis's examination of individuals who were presented in the emergency room on a backboard. The trial court denied appellant’s motion. On June 12, 2011, Phillips passed away. On June 13, 2011, appellant’s counsel filed a timely notice of appeal. While the appeal was pending, the appellees filed a motion to dismiss the appeal, arguing that since Phillips died after judgment was entered in the trial court, but before the Notice of Appeal was filed, the appellant, as guardian of Phillips, did not have the authority to file the Notice of Appeal. 

Issue:

1. Under the circumstances, did the appellant’s counsel have the authority to note an appeal on behalf of a client who has died?
2. Did the trial court err in admitting the doctor’s testimony as habit evidence?

Answer:

1) Yes. 2) No.

Conclusion:

The court held that the guardian's counsel had valid authority to note an appeal in a negligence claim against a doctor, even though the patient died prior to the filing of the Notice of Appeal, because the guardian authorized the filing of an appeal prior to the patient's death and counsel was unaware of the patient's death when the Notice of Appeal was filed less than 16 hours after the patient's passing; the notice substituting the guardian as personal representative was valid, Md. R. 2-241. Anent the second issue, the court held that the trial court did not err or abuse its discretion in admitting the doctor's testimony as habit evidence, Md. R. 5-406, because the testimony included how the doctor "cleared the spine" and did it "the same way, every single time," the large number of times the doctor performed the procedure, and the certainty of performing the procedure every time a patient was removed from a backboard.