August 17, 2019

The Court of Appeals of Maryland (“Maryland Appellate Court”), Maryland’s highest appellate court, held in its opinion filed on August 16, 2019 that the two Baltimore City paramedics who were the defendants in a Baltimore wrongful death action “were not grossly negligent in their treatment of [the decedent]. and were therefore afforded immunity under the Fire and Rescue Company Act, Cts. & Jud. Proc. § 5-604(a) … We further hold that Cts. & Jud. Proc. § 5-604(a) does, and continues to, grant immunity against simple negligence claims to employees of a fire department. Accordingly, we reverse the judgment of the Court of Special Appeals.”

The Underlying Facts

The two defendant Baltimore City Fire Department medics were dispatched to the decedent’s home on March 2, 2011, after the decedent’s wife called 9-1-1 reporting that her husband was experiencing chest pain and was having difficulty breathing and speaking. Upon arrival at the decedent’s home, one of the defendants stood just outside the front door while the decedent was sitting in a chair just inside the house (the decedent was 28 years old, five feet and seven inches tall, and weighed approximately 245 pounds). Without entering the house, the defendant asked in a loud voice “what seems to be the problem” to which the wife responded that her husband had told her that he thought he was having a heart attack. The decedent responded that his “right side hurt” and the defendant stated his desire and need to bring the decedent to the ambulance for further evaluation and possible treatment.

The wife claimed that the decedent stood up and staggered the short distance to the ambulance, approximately 30-40 feet, without the aid of the defendant or a stretcher. The defendant claimed that he instructed the decedent to wait while he retrieved a stretcher, but the decedent declined, stating that he was “ready to go” and began walking to the ambulance on his own accord. Approximately seven minutes after first arriving on the decedent’s street, the ambulance departed for the hospital, which was less than one mile away. The ambulance arrived about three minutes later.

At the hospital, the decedent exited the ambulance unassisted and without difficulty, and was seated in a wheelchair. The defendant pushed the decedent directly into the emergency room while the other defendant alerted hospital staff that the decedent “had a burning in his throat.”

While waiting in the emergency room, a hospital technician observed the decedent holding his chest and complaining that his chest hurt, which happened for another five to ten minutes, with the decedent’s voice growing louder as the time passed. After waiting in the emergency room for approximately ten minutes, the decedent became unconscious and began to slide out of his wheelchair. After the decedent was taken to the code room, and while he was receiving treatment from hospital staff, the defendants left the hospital and went back on service to prepare for the next potential dispatch call.

The hospital staff was unable to resuscitate the decedent. An autopsy determined the cause of death to be a myocardial infarction (i.e., a heart attack).

The decedent’s Estate, his widow, the guardian of his minor child, and the decedent’s father filed a survival action and wrongful death lawsuit against the two Baltimore City medics, alleging that they were grossly negligent in treating the decedent and that their gross negligence caused the decedent’s death. After a jury found that the defendants were grossly negligent, and awarded compensatory damages in the amount of $3,707,000, the trial judge granted the defendants’ Motion for Judgment Notwithstanding the Verdict (“JNOV”). The plaintiffs appealed to the Court of Special Appeals of Maryland (Maryland’s intermediate appellate court), which reversed the trial court’s grant of JNOV on the basis that the defendants were grossly negligent and not entitled to immunity under the Fire and Rescue Company Act, Maryland Code, Courts & Judicial Proceedings (“Cts. & Jud. Proc.”) § 5-604(a). The Maryland Appellate Court granted certiorari to the defendants.

Maryland Appellate Court Opinion

Simple Negligence Versus Gross Negligence

A fine line exists between allegations of negligence and gross negligence. Ordinary, simple negligence is any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for protection of others against unreasonable risk of harm. Gross negligence is an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. A wrongdoer is guilty of gross negligence or acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. Gross negligence is not just “big” negligence: gross negligence must be sufficient to establish that the defendant had a wanton or reckless disregard for human life. Only conduct that is of extraordinary or outrageous character will be sufficient to imply this state of mind.

The Maryland Appellate Court stated that the defendants “responded to [the decedent’s] 9-1-1 call, provided him with immediate attention and treatment, and transported him to the nearest hospital in under ten minutes … the failure to adhere to protocols and policies does not itself establish a reckless disregard for human life or amount to gross negligence … [i]t was not until [the decedent] had been waiting in the hospital for an additional ten minutes did his symptoms begin to worsen and he eventually went into cardiac arrest, at which point he was taken into the care of the hospital staff.”

The Maryland Appellate Court stated: “Hindsight is 20/20, and it is clear from the medical examiner’s autopsy that Petitioners’ assessment did not conform to [the decedent’s] actual medical condition and needs. It is true that Petitioners did not follow protocol by failing to transport [the decedent] via stretcher from his home to the ambulance, and by transporting him to the nearest hospital rather than a cardiac catheterization center. While this may – or may not – be sufficient to establish negligent conduct, the evidence presented by Respondents is not sufficient to establish gross negligence … The mere fact that Petitioners inaccurately diagnosed and treated their patient does not elevate their conduct to gross negligence. “[W]e cannot equate a well-intended error in medical judgment – even if it costs the patient’s life – with wanton and reckless disregard for the life of that patient … There is no legally sufficient evidence that [Petitioners] made a deliberate choice not to give [the decedent] a chance to survive.”

The Maryland Appellate Court concluded: “We conclude that there was not sufficient evidence to establish that Petitioners committed gross negligence. The mere fact that Petitioners inaccurately diagnosed and treated their patient does not elevate their conduct to gross negligence.”

Dissenting Opinion

The three-judge dissenting opinion stated, in part: “the test for gross negligence is “an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them” – and to consider wanton and deliberate wrongdoing as satisfying that test but not independent elements of it.” The dissenting opinion continued: “There also was no dispute, given the facts that we must assume when evaluating a judgment N.O.V., that petitioners failed to comply with nearly every protocol applicable to potential cardiac patients – at the scene, in the ambulance, and at the hospital. Given those facts, it clearly was a jury issue as to whether, after being consistently told by [the wife] that her husband was having a heart attack, that he was unable to walk, talk, or breathe properly, that he was in pain and was holding his chest, and seeing for themselves that that, indeed, was the case, (1) forcing him to walk to the ambulance and get himself inside it without having made the required assessment, (2) downgrading his condition to Priority 3 and acting accordingly, (3) informing the hospital that the only problem was indigestion, and rendering no assistance to him at all while he waited in the emergency room in pain and hollering for help constituted a reckless indifference to or disregard for [the decedent’s] rights. All of this is different in kind from merely making an incorrect diagnosis or negligence in implementing a medical procedure, which is how petitioners and the Majority view it.”

Source Stracke v. Butler, No. 64 September Term, 2018.

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