In a recently filed Maryland medical malpractice appellate court decision that will make some Maryland medical malpractice plaintiff attorneys cringe, the highest appellate court in Maryland, the Court of Appeals of Maryland (“Court of Appeals”), decided an appeal more than six years after the underlying medical malpractice trial that resulted in a defense verdict.
The issue decided by the Court of Appeals was whether the plaintiff’s request for a jury trial was filed too late. The trial judge had decided that the jury trial request was not timely and thereafter heard the case and decided in favor of the medical malpractice defendant. The case is captioned Luat D. Duckett, M.D.., et al. v. Raenora Riley, No. 61, September Term 2007.
The complaint against the medical malpractice defendant involved the doctor’s alleged negligent failure to timely diagnose the plaintiff’s breast cancer. The woman’s medical malpractice lawyer filed a formal complaint in court on her behalf on November 12, 2003. Maryland law requires that a plaintiff who seeks to have his/her case decided by a jury must file a timely written request for a jury trial in the proper form.
Maryland Rule 2-325 provides as follows: (a) Demand. Any party may elect a trial by jury of any issue triable of right by a jury by filing a demand therefor in writing either as a separate paper or separately titled at the conclusion of a pleading and immediately preceding any required certificate of service. (b) Waiver. The failure of a party to file the demand within 15 days after service of the last pleading filed by any party directed to the issue constitutes a waiver of trial by jury.
The medical malpractice plaintiff’s complaint filed with the court did not contain a request for jury trial – there was no separately titled demand in the conclusion of the complaint immediately preceding the required certificate of service. However, when the complaint was filed, the plaintiff simultaneously filed the required pre-printed form called a civil non-domestic case information sheet in which she checked the box indicating that a jury trial was requested. But the civil non-domestic case information sheet was not included with the documents served on the defendant along with the summons and complaint, as the clerk of the lower court was required to do pursuant to the Maryland rules.
When the medical malpractice defendant objected to the alleged failure of the plaintiff to comply with the provisions of Maryland Rule 2-325, the judge denied the plaintiff the right to have her case decided by a jury and thereafter heard the case and found in favor of the defendant.
The Court of Appeals said the issue before it was “whether a civil case information report constitutes a “paper” pursuant to Rule 2-325 (a), and whether, by checking the “yes” box in the jury-demand section of that report, and filing it with the complaint, a proper election of a jury trial was made, even though the case information report was not served on the defendant.” The Court of Appeals stated, “The critical question to be answered is whether a case information report is, or can be, a “paper.”
The Court of Appeals held: We conclude that the respondent waived her right to a jury trial. Rule 2-325 (a) requires a party to demand a jury trial in a pleading or, alternatively, in a separate paper, which Rule 2-325 (b) requires to be filed within 15 days after service of the last pleading filed by any party directed at the issue. Because a case information report is neither a paper nor a pleading, and, in any event, it was not served on the defendant in this case, the respondent did not demand a jury timely, pursuant to Rule 2-325 (a), when she filed her complaint. And, because the respondent filed nothing else, certainly, no demand for jury trial, after the petitioner filed his last relevant pleading, his answer to the respondent’s complaint, she waived her right to pray a civil jury trial.
However, the Court of Appeals stated in a footnote to its decision: It is, of course, an open question, and one we need not answer, whether, if the civil non-domestic case information sheet had been served successfully and timely on the petitioner, the outcome in this case would have been different.
Of note, the appeal was argued by the parties’ attorneys before the Court of Appeals on January 3, 2008, and it took the Court of Appeals over four and a half years to issue its opinion in the case.
If you are the victim of medical malpractice in Maryland or in another state in the United States, you should promptly seek the advice of a Maryland medical malpractice attorney or a local medical attorney in your state who may agree to assist you with your claim.
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