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Maryland Court of Special Appeals Finds Appellantís Brief So Incoherent that it Refuses to Discuss the Merits of a Motion to Dismiss her Medical Malpractice Claim

Judy Kay Miskell v. Alan Rohrer
No. 2621 (Court of Special Appeals of Maryland)

by Marie Claire Langlois, Law Clerk
Semmes, Bowen & Semmes (

Available at:

Appellant, Ms. Judy Kay Miskell, has filed several pro se lawsuits related to the death of her husband against appellee, Alan Rohrer, M.D., and various other individuals. Ms. Miskell’s first case was initiated two (2) years after her husband’s death on March 9, 2012, in the United States District Court for the District of Maryland. On April 18, 2012, Dr. Rohrer moved to dismiss the case due the appellant’s failure to exhaust her remedies by arbitration, as required by the Maryland Health Care Malpractices Claims Act (“HCMCA.”) In response, Ms. Miskell filed a voluntary motion to dismiss without prejudice, which was granted.

In July of 2012, Ms. Miskell complied with the HCMCA and filed a medical malpractice claim with the Health Care Alternative Dispute Resolution Office (“HCADRO.”) This claim was dismissed in September of 2012, again without prejudice, for failure to timely certify a qualified expert (HCMCA § 3–2A–04(b).) In January of 2013, appellant filed a motion in the U.S. District Court for the District of Maryland, which the court characterized as an attempt to reopen her original case from March of 2012. Her motion was denied because she had not sought reconsideration of the dismissal of the case, nor had she complied with the HCMCA’s full requirements. Instead of appealing the court’s decision to deny her motion for reconsideration, Ms. Miskell filed a motion for reconsideration on August 23, 2013.

On December 13, 2013, the court denied her motion for reconsideration. The court opined that a motion for reconsideration could not be used as a substitute for a timely appeal, and that Ms. Miskell had not established such “extraordinary circumstances” to justify relief under Rule 60(b)(6). The court also found that she still had remedies to exhaust in the HCADRO (although Appellant claims she filed a second request for arbitration after her first was dismissed, she failed to provide a date or any evidence to support this filing), so the result of denial of her motion to reconsider was to dismiss fully her court claim so that she could voluntarily pursue arbitration once again. Once her arbitration options were fully exhausted, Ms. Miskell may have chosen to file a new case.

Ms. Miskell then filed a complaint in the Circuit Court of Frederick County, on October 14, 2015, in which she requested a waiver of prepaid costs. On October 30, 2015, the court denied her request, finding that while Ms. Miskell met the financial eligibility guidelines for waiver, her claim on its face appeared to be frivolous and the complaint itself was incomprehensible. Ms. Miskell was given ten (10) days to pay the costs and/or amend her complaint, or her complaint would be deemed withdrawn. Ms. Miskell then filed a second request for waiver of fees, with an “amended complaint” which was almost substantively identical to her first. After denial of this second request, Ms. Miskell appealed this decision on January 29, 2016.

Ms. Miskell’s appellate brief asked two questions on review, which the Court of Special Appeals rephrased:

Did the circuit court violate appellant’s First, Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights, under the United States Constitution (a) by ‘using a person from the Judiciary’ as an arbitrator for an administrative review under the Executive Brand, thereby violating the Separation of Powers Doctrine and (b) by ignoring that Maryland law ‘mandates’ judicial review, ‘regardless of any arbitration by the Executive Branch?’

Yet, because of the Court’s understanding that Ms. Miskell was proceeding pro se and because of the lack of factual or legal arguments in favor of these questions, the Court articulated and clarified her questions to mean:

1. Did the circuit court err in denying appellant’s request to waive her pre-paid costs and
2. Do appellant’s arguments in her brief explicate issues that are coherent, relevant, and justiciable to her claims?

First, the Court addressed the denial of waiver of prepayment of filing fees. Md. Code Ann. Cts. & Jud. Proc. § 7-201(a) requires the payment of filing fees in order for a case to be docketed, but section (b) of the same rule allows waiver if the court finds that the petitioner is “unable by reason of his poverty to make the payment; and […] the suit is meritous” (emphasis added.) Moreover, while a court must explain in some form it’s reason for denying waiver, this task is not an onerous one. Torbit v. State, 102 Md. App. 530, 537(1994). Whether the reason is addressed in writing in the order or simply in the record sufficient for appellate review, either is sufficient. Id. at 536. Additionally, failure to address the court’s reasoning for denial, does not within itself constitute an abuse of discretion. Id. at 534.

The circuit court expressly noted when denying Ms. Miskell’s first request for waiver that the claim on its face appeared frivolous, and that the complaint was so incomprehensible that it was indeterminable whether she was alleging malpractice or another form of tort. Although the circuit court did not expressly address its reason for denying the second request, the Court of Special Appeals found that it was clear that without a substantively new complaint to review (her amended complaint was almost identical to the first), the reasoning for its second denial was the same. Therefore, this court found no abuse of discretion in denying her waiver.

The court then attempted to address Ms. Miskell’s appellate brief, immediately stating that her contentions were “largely incoherent, irrelevant, and nonjusticiable.” Although a dismissal of an appellant’s claims for violations of the rules of appellate procedure, should be viewed as a drastic measure, Rollins v. Capital Plaza Assocs. L.P. 181 Md. App. 188, 202 (2008), Ms. Miskell’s violations were such that it was almost impossible for the Court to address her concerns. Ms. Miskell failed to state a standard of review, failed to cite relevant facts to address her legal claims or cite to the record, her relief sought was inappropriate, the record itself was deficient, and argument was not provided for each issue raised. After addressing that such a failure to follow the Rules created needless difficulty, time, and expenses for both the parties and the Court, the Court of Special Appeals chose to reserve its discussion to a denial of waiver of prepaid filing fees and affirmed the decision of the circuit court, stating that Ms. Miskell’s substantial violations could support a dismissal of her appeal.