Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

Court of Appeals Rules on Cases Involving Missing Plaintiff and Board Certification

How far should a plaintiff have to go in making sure that all the possible participants areincluded in a wrongful death lawsuit and does board certification matter in a medicalmalpractice lawsuit are issues that were debated in two cases recently decided byMaryland's appellate courts.

In University of Mayland Medical Systems Corporation (UMMSC) v. Guisepina Muti,Personnel Representative of the Estate of Elliott Muti, et al., the Court of Appeals heldthat the circuit court erred - made a mistake - when it dismissed a wrongful death claimbrought by the widow and most of the adult children of a former UMMSC patient.

The lower courts, relying on a Maryland Rule of Procedure and a state statute, threw theclaim out because the estranged son from a prior marriage had not been included in thelegal action. The family had not had any contact with the son, Ricky, for several yearsand did not know his whereabouts.

Maryland Rule 15-1001(b) provides for sanctions for the failure to join - include - anecessary party. Under Maryland Rule of Procedure Rule 15-1001, "all persons who areor may be entitled by law to damages by reason of the wrongful death shall be named asplaintiffs whether or not they join in the action."

Courts and Judicial Proceeding Section 904(f) and (g) provide that only one action canbe maintained with respect to the death of a person. The "one action" rule is designedto protect a defendant from being "vexed by several suits instituted by or on behalf ofdifferent equitable platinfffs for the same injury, when all the parties could be joined inone proceeding."

But, when the case came before the state's top court, the court saw the case differentlyfrom the lower courts and held that identifying all "use" plaintiffs is not a statutorycondition for maintaining a legal action for a wrongful death claim.

"UMMSC asks us to hold that those plaintiffs who timely sued in this case are also outof court because there may be another living child of Elliot's who may attempt to sue,leaving UMSC theoretically exposed to more than one wrongful death action," the Courtof Appeals observed.

What the Mutis need only have done was state in their complaint that any addressfor "use plaintiff" Ricky was unknown after a reasonably diligent search made in goodfaith was conducted, the court said. The Court of Appeals also observed in a footnote thatit would have been prudent for the Muti's attorney to have filed an affidavit describingthe efforts made to locate the estranged adult son.

"On the record before us, there is no basis for inferring that Ricky was omitted as a useplaintiff for the purpose of hiding the litigation from him or in the hope that the Mutiswould increase their recovery. Under the totality of circumstances, we hold that thecircuit court abused its discretion in dismissing the plaintiffs' wrongful death claims as asanction for the omission," the court wrote.

The case was released to the public on May 3.

In Schneider v. Victoria Little, the Court of Special Appeals ruled in a medicalmalpractice case that a doctor's lack of board certification is not relevant to the issue ofwhether the physician complied with the standard of care in a patient's treatment. As aresult, the appellate court overturned a $2.8 million dollar jury verdict.

The case was released to the public on June 1.

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