The lawyer representing the medical malpractice plaintiff in a Maryland medical malpractice case was so dilatory in responding to the Defendants’ numerous discovery requests, including failures to abide by court orders requiring compliance with the discovery requests, that the trial judge dismissed the plaintiff’s medical malpractice complaint, which was upheld recently by Maryland’s intermediate appellate court (the Court of Special Appeals of Maryland).
The medical malpractice plaintiff alleged that a doctor of optometry and her medical practice were negligent in her eye care between February 2006 and August 2008, including the failure to monitor a condition in her right eye, that ultimately led to loss of vision in that eye. In its written opinion filed on May 29, 2014, the Court of Special Appeals of Maryland (“Court of Special Appeals”) discussed the plaintiff’s attorney’s discovery (mis)conduct in detail.
One of the Defendants propounded interrogatories and a request for production of documents to the Plaintiff, to which the plaintiff failed to file timely responses. The Court of Special Appeals initially noted that the plaintiff’s “failure to comply with the deadline is unremarkable—parties routinely miss this deadline and litigators know that absolute compliance is not always possible (although they do, and should, expect at least a request for an extension and a good faith deadline in return).” However, what followed was remarkable–and inexcusable.
Over the course of two months, the Defendant’s lawyer wrote letters to the Plaintiff’s lawyer, inquiring when the Plaintiff’s discovery responses could be expected and requesting a date for the Plaintiff’s deposition, to which the Plaintiff’s attorney failed to respond. Follow-up telephone messages failed to spark a response.
The Defendant’s lawyer subsequently filed a motion to compel discovery, to which the Plaintiff’s lawyer failed to respond, which resulted in a court order requiring the Plaintiff to provide discovery responses by a certain date (Plaintiff’s lawyer claimed that he never received a copy of the court’s discovery order). The court later issued a second order that required the Plaintiff to respond to the Defendant’s discovery requests. When the Plaintiff failed to provide the required discovery, the Defendant’s lawyer subsequently filed a motion for sanctions for the Plaintiff’s failure to comply with the court’s previous discovery order.
The Plaintiff’s lawyer’s actions (or lack of action) with regard to the other Defendant’s discovery requests were similar and resulted in similar orders compelling the Plaintiff to provide discovery responses. Then, the Plaintiff’s deposition was noted by the Defendants, but the Plaintiff and her lawyer failed to appear for the deposition. Subsequently, the Plaintiff’s lawyer mailed unsigned answers to interrogatories to the Defendants’ lawyers on the date of the deadline set forth in the court’s order. Shortly thereafter, the Defendants filed a joint motion for sanctions for the repeated failures of the Plaintiff to provide discovery responses, including her failure to provide her discovery responses by the deadline set forth in the court’s order, and the Plaintiff’s failure to appear at her scheduled deposition.
During the hearing on the Defendants’ joint motion for sanctions, the Plaintiff’s lawyer blamed the Defendants for allegedly delaying discovery by waiting to pursue expert depositions and also blamed the delays on the Plaintiff’s side mainly on his client, whom he allegedly had had difficulty contacting. The court discussed the various discovery failures, the alleged reasons for the failures, the substantial nature of the discovery failures, the prejudice suffered by the Defendants as a result of the discovery failures, and thereafter dismissed the Plaintiff’s medical malpractice lawsuit; the Plaintiff appealed.
In Maryland, in determining if failure to comply with discovery deadlines warrants dismissal, the court must review five factors: (1) whether the disclosure violation was technical or substantial; (2) the timing of the ultimate disclosure; (3) the reason, if any, for the violation; (4) the degree of prejudice to the parties respectively offering and opposing the evidence; and (5) whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance. The factors often overlap and do not lend themselves to a compartmental analysis.
The Court of Special Appeals stated, “By our count, counsel did not respond to at least ten letters, phone calls, or notices, and five separate motions; and, of course, [the Plaintiff] failed to appear for her deposition or comply with either Court Order … while perhaps some of the delays might have been excusable, the circuit court, in its discretion, properly analyzed the relevant factors and ordered dismissal … the circuit court did not abuse its discretion in deciding to dismiss the case after repeated discovery failures and an unambiguous warning from the court.”
The Court of Special Appeals held, “the court appropriately dismissed a case where counsel’s failure to respond to numerous and repeated inquiries from the opposing parties’ counsel, coupled with his all-too-nonchalant failure to comply with a court order, revealed a pattern of conduct that made dismissal eminently justifiable, and well within the trial court’s discretion.”
Leslie Valentine-Bowers v. The Retina Group of Washington, P.C., et al., No. 2117, September Term, 2012. Read the Court of Special Appeals opinion in its entirety by clicking here .
If you or a family member have been injured (or worse) due to medical malpractice in Maryland or in another U.S. state, you should promptly seek the legal advice of a Maryland medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical negligence case, if appropriate.
Click here to visit our website or call us toll-free at 800-295-3959 to be connected with Maryland medical malpractice lawyers (or medical malpractice lawyers in your state) who may assist you with your medical malpractice claim.
Turn to us when you don’t know where to turn.