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Maryland's intermediate appellate court adopts Section 3.07 of Restatement (Third) of Agency, and finds corroboration unnecessary to support admissibility of habit evidence

Rosebrook v. Eastern Shore Emergency Physicians
___ Md. App. ___ (Jan. 28, 2015)
by Wayne C. Heavener, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/cosa/2015/0807s11.pdf

In Rosebrook v. Eastern Shore Emergency Physicians LLC, Maryland's intermediate appellate court addressed issues of agency law and evidence. Specifically, the Court held that an attorney had the authority to act on behalf of a deceased client to pursue an appeal when that attorney has noted the appeal before learning of the client's death. In so doing, the Court adopted Section 3.07(2) of the Restatement (Third) of Agency, which provides that death only terminates an agent's actual authority when the agent has notice of the principal’s death. Additionally, the Court found that a physician's testimony, in which she testified that she conducted routine spine examinations every time she treated a patient on a backboard, was admissible to prove that she conducted a similar examination when the plaintiff was presented on a backboard. Importantly, the Court held that corroboration of admissible habit conduct was relevant to the evidence's weight, but not its admissibility.

This case arose out of an injury sustained by Judith Phillips when she slipped and fell on a wet floor while working at a nursing home in Denton, Maryland. Emergency medical technicians (EMTs) responded to the scene, and noted that Ms. Phillips complained of pain in her hip, right knee, and the lumbar back. The EMTs immobilized Ms. Phillips on a backboard, and transported her to Shore System's Memorial Hospital. Upon arrival at the hospital, Ms. Phillips was examined by Deborah Davis, M.D., the attending physician on duty, who noted that Ms. Phillips was experiencing knee and hip pain. Dr. Davis' notes did not indicate whether she conducted a spinal exam on Ms. Phillips. After a series of x-rays, Dr. Davis diagnosed Ms. Phillips with knee and hip contusions. Ms. Phillip's condition worsened in the ensuing months, and Ms. Phillips suffered an acute compression fracture of the L3 vertebrae. Following surgery for spinal fusion, Ms. Phillips developed an infection. Ms. Phillips fell into a vegetative state on January 4, 2004 until she died on June 12, 2011.

In 2009, Sean Rosebrook, acting as guardian to Ms. Phillips, filed a medical malpractice action against, inter alia, Dr. Davis. A jury trial commenced on March 28, 2011. At trial, Dr. Davis testified that she routinely conducted spinal examinations — termed "clearing the spine" — on every patient immobilized on a backboard. Therefore, Dr. Davis stated that she must have conducted a similar "clearing of the spine" on Ms. Phillips. Counsel for Ms. Phillips objected to Dr. Davis' testimony. The court overruled the objection, finding that Dr. Davis' testimony was admissible as habit testimony pursuant to Md. Rule 5-406. The jury rendered a verdict for Dr. Davis, finding her not negligent in the care of Ms. Phillips. The plaintiff moved for judgment notwithstanding the verdict, which was denied.

Counsel for Ms. Phillips noted an appeal on June 13, 2011. While the appeal was pending, Dr. Davis moved for dismissal based on the fact that Ms. Phillips died on June 12, 2011; therefore, Dr. Davis argued that Ms. Phillips' counsel did not have authority to note an appeal on behalf of Ms. Phillips'. Dr. Davis argued that only Ms. Phillips' estate had the authority to pursue an appeal. In response, counsel for Ms. Phillips argued that he did not learn of Ms. Phillips passing until after noting the appeal. Ms. Phillips' estate was substituted for Mr. Rosebrook as appellant on December 21, 2011.

The Maryland Court of Special Appeals denied Dr. Davis' Motion to Dismiss. While the Court acknowledged that an agent's authority terminated upon the death of a principal, the Court found that this rule of law does not address the current situation, i.e. where the agent was not aware of the principal's death. The Court adopted Section 3.07(2) of the Restatement (Third) of Agency, which states "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." Therefore, in this case, counsel for Ms. Phillips had authority to note her appeal, despite the fact that Ms. Phillips had died on the prior day.

The Court also affirmed the admissibility of Dr. Davis's testimony at trial. Md. Rule 5-406 provides that "[e]vidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice." The Court noted that there is a dearth of Maryland case law applying Rule 5-406 in the medical malpractice context. Looking to case law interpreting Fed. R. Evid. 406 for guidance, the Court held that habit evidence must be a consistent method or manner of responding to a particular stimulus. Dr. Davis' testimony that she conducts a spinal examination every time she sees a patient on a backboard was sufficient to support the admissibility of her statements, and support that inference that she must have conducted a similar "clearing of the spine" on Ms. Phillips. Further, the Court held that Dr. Davis' testimony did not require corroboration by a third party, finding that corroboration goes to the “weight of the evidence, and not its admissibility”