Home Medical Malpractice Law Digest — Md. Court of Appeals — July 21, 2022

Law Digest — Md. Court of Appeals — July 21, 2022

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Commercial; tax sale foreclosures: Where sheriffs who are serving writs of possession upon homeowners whose houses were foreclosed upon require tax sale buyers to provide movers to remove personal property from the premises, and postpone the service of writs of possession during bad weather conditions, these policies were within their implied powers. Thornton Mellon LLC v. Frederick County Sheriff, No. 51, Sept. Term, 2021 (filed July 12, 2022).

Employment; wage and hour law: Where Maryland has not adopted the federal Portal-to-Portal Act, or PPA, a jury will decide whether construction workers are entitled to compensation for the time that they waited and traveled between a parking area where their employers directed them to park and a construction site where they performed physical labor. Amaya v. DGS Construction LLC, No. 14, Sept. Term, 2021; Rojas v. F.R. General Contractors Inc., No. 17, Sept. Term, 2021 (filed July 13, 2022).

Medical Malpractice; loss of chance doctrine: Where the court has previously held that the loss of chance doctrine is not recognized in Maryland, and the Maryland General Assembly has not passed any legislation in the intervening 35 years that modifies that decision, it remains the law. Wadsworth v. Sharma, No. 40, Sept. Term, 2021 (filed July 15, 2022).

Municipal; redistricting: Where the Prince George’s County Council wanted to enact a redistricting plan than was different than the plan submitted by a redistricting commission, it could not do so via a resolution, and was instead required to use a “bill” and pass a “law.” Prince George’s County v. Robert E. Thurston Jr., No. 63, Sept. Term, 2021 (filed July 13, 2022).

Commercial

Tax sale foreclosures

BOTTOM LINE: Where sheriffs who are serving writs of possession upon homeowners whose houses were foreclosed upon require tax sale buyers to provide movers to remove personal property from the premises, and postpone the service of writs of possession during bad weather conditions, these policies were within their implied powers.

CASE: Thornton Mellon LLC v. Frederick County Sheriff, No. 51, Sept. Term, 2021 (filed July 12, 2022) (Judges WATTS, Hotten, Booth, Biran, Eaves, McDonald, Getty)

FACTS: The case involves a challenge to two policies used by sheriffs in evicting people from their homes when a tax sale buyer obtains a judgment foreclosing the right of redemption with respect to a property and the homeowner does not redeem the property.

Under the first policy, when serving writs of possession, sheriffs require tax sale buyers to provide movers to remove personal property from the premises at issue. Under the second policy, during bad weather conditions, sheriffs postpone the service of writs of possession. The court must determine whether the two policies constitute a valid exercise of powers fairly implied by the sheriffs’ expressly given authority.

LAW: Under Md. Code Ann., Cts. & Jud. Proc. § 2-301(a), sheriffs must serve all papers directed to them, including writs of possession and warrants of restitution. Under Maryland Rule 2-647, when serving writs of possession, sheriffs must place plaintiffs in possession of real property. Md. Code Ann., Real Prop. § 8-401(f)(1)(i) requires that, in landlord-tenant cases, a tenant’s personal property be removed from the premises by the landlord. Thus, under RP § 8-401(f)(1)(i), when serving warrants of restitution, sheriffs must require landlords to remove personal property from the premises.

Under RP § 8-401(f)(2)(i), administrative judges may stay the execution of warrants of possession during extreme weather conditions, and sheriffs must postpone service of the warrants. From these statutes it can be fairly implied that the sheriffs have the power to adopt both the mover policy and the weather policy in connection with the service of writs of possession.

The court disagrees with Thornton Mellon’s contention that it cannot be inferred that the provisions of RP § 8-401 give rise to the conclusion that the sheriffs have the fairly implied power to serve writs of possession in tax sale foreclosure cases in a manner similar to the service of warrants of restitution in landlord-tenant cases. The court also disagrees with Thornton Mellon to the extent that it contends that the sheriffs cannot adopt the mover policy and the weather policy for the service of writs of possession because the policies are not expressly authorized under any statute or Maryland Rule.

Thornton Mellon contends that the mover policy results in additional costs and discourages participation in the tax sale business. This is not a reason to conclude that the mover policy should be invalid or not fairly implied. In any event the question is whether the sheriffs had the authority to adopt the mover policy. The court holds that the sheriffs did.

Regarding the weather policy, if the court were to adopt Thornton Mellon’s position, sheriffs would be required to put citizens at risk who would be evicted in extreme weather conditions and the officers working with them at risk by forcing them to serve writs of possession during adverse weather conditions. The sheriffs’ weather policy, which is designed to avoid these outcomes, is neither arbitrary nor capricious but rather furthers the reasonable purpose of ensuring the safety of the public as well as government officials.

Thornton Mellon contends that the sheriffs did not have the authority to adopt the mover and weather policies for the service of writs of possession because according to Thornton Mellon, serving a writ of possession is a ministerial duty. Nothing in the case law indicates that the distinction between discretionary duties and ministerial ones is relevant to the issue of whether a government official’s action was a valid exercise of “fairly implied powers incident to those duties or authority expressly granted.”
Judgment of the Court of Special Appeals affirmed.

Employment

Wage and hour law

BOTTOM LINE: Where Maryland has not adopted the federal Portal-to-Portal Act, or PPA, a jury will decide whether construction workers are entitled to compensation for the time that they waited and traveled between a parking area where their employers directed them to park and a construction site where they performed physical labor.

CASE: Amaya v. DGS Construction LLC, No. 14, Sept. Term, 2021; Rojas v. F.R. General Contractors Inc., No. 17, Sept. Term, 2021 (filed July 13, 2022) (Judges Getty, McDonald, WATTS, Hotten, Booth, Biran, Battaglia)

FACTS: In two related cases, construction workers brought actions for unpaid wages and overtime wages under the Maryland Wage and Hour Law, or MWHL, and the Maryland Wage Payment and Collection Law, or MWPCL, and claims for unjust enrichment for the time that they waited and traveled between a parking area where their employers directed them to park and a construction site where they performed physical labor.

The cases involve the question of whether a federal law which provides that traveling to work is not a compensable activity has been adopted or incorporated into the MWHL, the MWPCL and the Code of Maryland Regulations, or COMAR, and the related question of whether what constitutes “work” under Maryland law for which wages are due to an employee is limited to what constitutes “compensable work” under federal law.

LAW: Under the PPA, which is an amendment to the Fair Labor Standards Act, certain activities are not compensable, including the time spent traveling to work. However, since being enacted in 1965 and 1966 and in subsequent amendments, neither the MWHL nor the MWPCL has expressly adopted or incorporated the PPA. Indeed, neither the MWHL nor the MWPCL refers to or even mentions the PPA. The related COMAR regulations have also not expressly incorporated the PPA.

The court declines to read the General Assembly’s silence on such a significant matter, such as incorporating into Maryland statutes a federal law that limits compensation for work, as dispositive of the General Assembly’s intent to incorporate the PPA into Maryland law. Simply put, what constitutes “work” in Maryland is not limited to what is considered compensable work under the PPA. Accordingly the circuit court and the Court of Special Appeals erred in determining that the PPA had been made a part of Maryland law. The question of whether petitioners are entitled to compensation under Maryland law turns on Maryland law only.

Under the plain language of COMAR 09.12.41.10A, the term “hours of work” means the time during a workweek that an employee is required by an employer to be “on the employer’s premises, on duty, or at a prescribed workplace.” Thus, an employee could engage in hours of work as a result of being required to be on duty at a location other than a prescribed workplace and by being required to be on the employer’s premises, which may or may not be a prescribed workplace.

Given this, it would be inconsistent with the plain language of the COMAR provision to require that an employee be engaged in the performance of actual physical labor or the performance of the principal work activities of employment in order to be compensated for hours of work. Instead, it is sufficient that the employer require the employee to be on duty, on the premises or at a prescribed workplace. In these cases, whether respondents required petitioners to be either on respondents’ premises, on duty or at a prescribed workplace would be factual matters to be determined by the trier of fact, i.e., the jury.

In addition, under COMAR 09.21.41.10C(2), travel time from one worksite to another is included in hours of work. If hours of work under COMAR 09.21.41.10A necessarily include time that an employee is required to be on an employer’s premises, on duty or at a prescribed workplace, it follows that hours of work would include time that an employee spends traveling from one prescribed workplace or location on which the employee is required to be on duty or required to be on the employer’s premises to another such location. These are factual issues to be decided by the jury.

Finally, just as the circuit court erred in granting judgment as to the wage claims on the basis that travel time is not compensable, the circuit court erred in granting judgment as to the unjust enrichment claim and the Court of Special Appeals erred in affirming the judgment.

Judgment of the Court of Special Appeals reversed.

Medical Malpractice

Loss of chance doctrine

BOTTOM LINE: Where the court has previously held that the loss of chance doctrine is not recognized in Maryland, and the Maryland General Assembly has not passed any legislation in the intervening 35 years that modifies that decision, it remains the law.

CASE: Wadsworth v. Sharma, No. 40, Sept. Term, 2021 (filed July 15, 2022) (Judges GETTY, McDonald, Hotten, Booth, Biran) (Judges Watts, Harrell dissent)

FACTS: In wrongful death claims, plaintiffs face the challenge to demonstrate that the defendant proximately caused the decedent’s death. Therefore, in an attempt to balance perceived inequities that occur under traditional causation principles, some jurisdictions have adopted the loss of chance doctrine.

In the medical malpractice context, the loss of chance doctrine allows the plaintiff to recover if the plaintiff can prove that the defendant’s negligence caused the loss of chance of a better outcome, including survival. In this case, the court revisits the loss of chance doctrine in Maryland.

LAW: Md. Code, Courts and Judicial Proceedings Article § 3-902(a) states that “[a]n action may be maintained against a person whose wrongful act causes the death of another.” This court has previously determined that the language of CJ § 3-902(a) is unambiguous, leaving no room for judicial interpretation.

Consistently, the court has recognized the requirement that plaintiffs prove by a preponderance of the evidence that the defendant directly and proximately caused the plaintiff’s injury. To satisfy proximate cause, the wrongful act or omission must be “(1) a cause in fact, and (2) a legally cognizable cause” of the injury. The court has consistently decided to keep traditional causation principles intact in wrongful death and survival claims. Therefore, reading CJ § 3-902(a) consistently with the legal meaning of cause, it is clear that the plaintiff bears the burden of proving by a preponderance of the evidence that the alleged wrongful act or omission proximately caused the decedent’s death.

In 1987, this court declined to judicially adopt the loss of chance doctrine. It has since reaffirmed the view that the loss of chance doctrine is not recognized in Maryland. The court presumes that the General Assembly is “aware of this Court’s interpretation of its enactments and, if such interpretation is not legislatively overturned, to have acquiesced in that interpretation.” In 35 years, however, the General Assembly has not passed legislation modifying this court’s decision to reject the loss of chance doctrine.

The General Assembly is best equipped to identify, consider and reconcile competing policy interests associated with the decision of whether to adopt the loss of chance doctrine. Therefore, any changes to the Wrongful Death Act are best suited to the legislative process in the General Assembly and not from this court “in the guise of statutory construction.”

This court may abandon the doctrine of stare decisis when the decision is “clearly wrong and contrary to established principles” or where there is “a showing that the precedent has been superseded by significant changes in the law or facts.” Neither exception applies here.

The undisputed facts demonstrate that Ms. Wadsworth’s metastatic breast cancer caused her death. Neither party presented experts to opine that Ms. Wadsworth’s likelihood of survival, absent Dr. Sharma’s alleged negligence, exceeded 50 percent or that she would have survived if Dr. Sharma started treating her on the date that she produced the abnormal scan.

Without evidence to dispute that Ms. Wadsworth had a greater than 50 percent chance of survival, Mr. Wadsworth, as a matter of law, cannot meet his burden to prove by a preponderance of the evidence that Dr. Sharma’s alleged negligence caused Ms. Wadsworth’s death. As such, the Court of Special Appeals correctly affirmed the circuit court because Mr. Wadsworth pleaded a loss of chance case, which is not recognized in Maryland.

Judgment of the Court of Special Appeals affirmed.

DISSENT: The issue in this case is not whether Maryland’s Wrongful Death Act provides a remedy for a negligent act where a person has less than a 50/50 chance of survival, i.e., a loss of chance of survival case. Rather, the issue in this case is whether Maryland’s Wrongful Death Act applies where the negligent act of a medical professional causes the death of a person who had a greater than 50 percent chance of survival at the time of death. The clear answer under the plain language and legislative history of the Wrongful Death Act is that it does, and I would hold as such.

Municipal

Redistricting

BOTTOM LINE: Where the Prince George’s County Council wanted to enact a redistricting plan than was different than the plan submitted by a redistricting commission, it could not do so via a resolution, and was instead required to use a “bill” and pass a “law.”

CASE: Prince George’s County v. Robert E. Thurston Jr., No. 63, Sept. Term, 2021 (filed July 13, 2022) (Judges GETTY, Watts, Hotten, Booth, Biran, Gould, McDonald)

FACTS: The Prince George’s County Council appointed the Prince George’s County 2021 Redistricting Commission to prepare and propose a councilmanic redistricting plan following receipt of the 2020 federal decennial census data. After considering the commission’s plan, the council attempted to enact an alternative redistricting plan using a resolution. The circuit court invalidated the measure.

LAW: Article III, § 305 of the Charter for Prince George’s County provides in pertinent part: “If the Council passes no other law changing the proposal, then the plan, as submitted, shall become law, as of the last day of November, as an act of the Council, subject to Sections 320[10] and 321[11] of this Charter. Such law shall be adopted by resolution of the County Council upon notice and public hearing.”

The court interprets this provision to require the council, if it chooses to adopt the plan of the redistricting commission, to do so by resolution upon notice and public hearing. The plain language does not require—or even authorize—the council to enact an alternative redistricting plan by resolution.

At oral argument, the county’s counsel suggested that the charter’s broad definition of the term “bill” does not limit “what [a] bill is,” and could encompass a resolution as a law changing the redistricting commission’s proposal. The county’s position on this point is untenable. For the council to enact an alternative redistricting plan, it had to pass a “law,” which begins as a “bill.” The court thus agrees with the circuit court that “a resolution, while having the effect of law, is not a substitute for a law.”

The charter establishes a procedure for the enactment of legislation and provides in pertinent part that “[t]he Council shall enact no law except by bill.” A “bill,” is “any measure introduced in the Council for legislative action”; whereas a “resolution,” is “a measure adopted by the Council having the force and effect of law but of a temporary or administrative character.” The difference between these legislative tools is borne out in prior decisions of this court.

The county argues that the circuit court erred by failing to consider the legislative history of the 2012 amendment. Pressing this argument, the county clings to a single sentence appearing in the “Background Information” section of the council’s “Agenda Item Summary”17 accompanying Council Bill 55 on June 19, 2012, and July 24, 2012: “This proposed Charter Amendment authorizes the adoption of a County Council redistricting plan by resolution upon notice and public hearing.” This lone sentence and the other existing legislative history, however, does not persuade the court that the county’s interpretation is correct. To read it as the county urges would disregard the other numerous indications contained in the legislative history that the 2012 amendment intended to “authorize legislative action on the decennial County Council redistricting plan by resolution upon notice and public hearing.”

Here, the commission transmitted its redistricting plan and report to the council on Sept. 1, 2021. The council failed to pass a law changing the commission’s proposal. Instead, the council passed Council Resolution 123, which, as the court has made clear, falls short of a “law changing the [2021 Commission’s] proposal . . . .” Accordingly, the commission’s plan became effective by operation of law on Nov. 30, 2021.

Circuit Court for Prince George’s County affirmed.

 





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