Rosebrock v. Eastern Shore Emergency Physicians, LLC

In November 2003, Judith Phillips slipped and fell at work. Paramedics immobilized Phillips on a backboard and transported her to a hospital (defendant) run by Shore Health System, Inc. (Shore) (defendant). Dr. Deborah Davis (defendant), an emergency-department physician, diagnosed Phillips with knee and hip contusions. There was no spinal examination noted in Phillips’s chart. Phillips was discharged, but her condition worsened. Doctors subsequently discovered that Phillips had a back fracture. Phillips underwent spinal fusion surgery but experienced complications that left her in a persistent vegetative state. In May 2009, Phillips’s guardian, Sean Rosebrock (plaintiff), brought a medical-malpractice action in Maryland state court against Davis, the hospital, and Shore. At trial, Davis testified that she had no memory of treating Phillips. However, the court allowed Davis to testify about how she typically examined patients on backboards. Davis testified that she saw 5,000 to 6,000 patients per year, that she treated several patients on backboards every shift, and that she conducted spinal examinations on those patients before removing them from the backboards “every single time, every day” at work. The jury ultimately found that Davis had not been negligent in treating Phillips. Phillips died on June 12, 2011. The following day, Rosebrock’s counsel filed a timely notice of appeal of the trial court’s judgment. The appeal asserted, among other things, that the trial court had improperly allowed Davis to present uncorroborated and prejudicial habit testimony regarding Davis’s patient-examination routine. Davis, Shore, and the hospital moved to dismiss the appeal, asserting that Rosebrock and his counsel did not have authority to file an appeal on Phillips’s behalf after her death. Rosebrock asserted that he had authorized counsel to notice the appeal prior to Phillips’s death. Counsel had then noticed the appeal within hours after Phillips’s death but before counsel received notice of her death.