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Law Digest — Maryland Court of Special Appeals — Dec. 10, 2020

Maryland Court of Special Appeals

Civil Procedure; Judgment notwithstanding verdict: In the plaintiffs’ medical malpractice case, the circuit court erroneously found that the plaintiffs failed to show that the defendants’ negligence was a proximate cause of the decedent’s death, and, therefore, the trial court abused its discretion in granting the defendants’ judgment notwithstanding the verdict. Burton v. Advanced Radiology P.A., No. 1336, Sept. Term, 2019.

Corporate Law; Religious corporations: In the absence of any provision otherwise, the Board of Trustees, not the congregation, was the body corporate of a religious organization, and the Board of Trustees, in accordance with its Articles of Incorporation and applicable statutes, had the authority to terminate the pastor. Vaughn v. Faith Bible Church of Sudlersville, No. 1258, Sept. Term, 2019.

Civil Procedure

Judgment notwithstanding verdict

BOTTOM LINE: In the plaintiffs’ medical malpractice case, the circuit court erroneously found that the plaintiffs failed to show that the defendants’ negligence was a proximate cause of the decedent’s death, and, therefore, the trial court abused its discretion in granting the defendants’ judgment notwithstanding the verdict.

CASE: Burton v. Advanced Radiology P.A., No. 1336, Sept. Term, 2019 (filed Nov. 23, 2020) (Judges Reed, WELLS & Zarnoch (Senior Judge, Specially Assigned)).

FACTS: Charles Burton, individually and as the personal representative of the Estate of Lana Burton, Larae Burton McClurkin, Willie James Barton, Jr., and Melba Ann Barton filed suit in the circuit court against Advanced Radiology, P.A., Advanced Radiology, LLC, and Dr. Sanford Minkin, alleging that Dr. Minkin had failed to properly diagnose Lana Burton for Stage I breast cancer, which later spread to other parts of her body and led to her death on February 17, 2016. Charles Burton was Lana Burton’s husband. Larae McClurkin was Lana’s daughter. Willie Barton was Lana’s father, Melba Barton was Lana’s mother.

In November 2011, Lana underwent a routine breast cancer examination at Advanced Radiology. The results of that examination indicated she had no abnormalities. Roughly six months later, May 11, 2012, Lana found a lump in her right breast and returned to Advanced Radiology. They performed a mammogram and an ultrasound examination. Dr. Minkin, a radiologist, prepared a report that described the lump as both “normal glandular tissue” and that it was “benign.”

On August 9, 2013, Lana returned to Advanced Radiology for a follow-up examination. A mammogram and ultrasound showed abnormalities that were “highly suspicious for extensive malignancy in the right breast centrally and in the lower outer quadrant with malignant adenopathy.” The following month, Lana underwent a biopsy that revealed that she did, in fact, have Stage III, “triple negative” breast cancer, in the abnormal areas identified from the previous month’s exams.

Lana immediately began chemotherapy and radiation treatments, which she continued for more than two years. Unfortunately, the cancer had spread to her neck, liver, and her lungs. Because the cancer had become pervasive, Lana stopped receiving chemical and radiation treatments. She died on February 17, 2016, at the age of 56.

The Burtons sued Dr. Minkin and Advanced Radiology, advancing four theories of liability: survival action – negligence; survival action – informed consent; survival action – loss of consortium; and wrongful death. At the jury trial in the circuit court, the Burtons called two expert witnesses in support of their theories of liability. The Burtons’ second expert, Dr. Gabriel Pushkas, an oncologist and hematologist at Johns Hopkins Medicine, Suburban Hospital, testified as the Burtons’ causation expert. Dr. Pushkas testified that if Dr. Minkin had diagnosed Lana with cancer in May 11, 2012, she would have had an 80 percent chance of surviving five years. Fifteen months later, after she was diagnosed and had started treatment, Dr. Pushkas estimated that Lana had a 66 percent chance of survival.

At the conclusion of the presentation of all the evidence, the healthcare providers moved for judgment. The court reserved a decision on the defense’s motion for judgment under Rule 2-519(d). The jury found in favor of the Burtons and awarded $282,529 in non-economic damages to the Estate of Lana Burton, $300,000 to Charles Burton, Lana’s husband, and $2 million in non-economic damages to her daughter, Larae Burton McClurkin. The jury declined to award damages to Lana’s father, Willie Barton, or the estate of her mother, Melba Barton.

After the verdict, the healthcare providers filed post-trial motions, including a motion for judgment notwithstanding the verdict. The trial court granted the motion for JNOV, finding that the plaintiffs had failed to prove that Dr. Minkin’s breach of the standard of care was the proximate cause of Lana Burton’s death. Specifically, the court found that plaintiffs’ causation expert established that Lana had a greater than 50-percent probability of survival even if it was assumed that Dr. Minkin had failed to timely diagnose her with breast cancer.

The Burtons appealed to the Court of Special Appeals, which reversed the judgment of the circuit court and remanded the case.

LAW: The Burtons argued that the trial court erred in granting the defendants’ motion for judgment notwithstanding the verdict. The trial court granted the healthcare providers’ motion for JNOV based on what it perceived as insufficient evidence of causation. “Proximate cause” means that a plaintiff must prove with reasonable certainty, or that it is “more likely than not” that a defendant’s negligence was a cause the plaintiff’s injury. See Maryland Pattern Jury Instruction-Civil 1:14. At issue on appeal was whether a reasonable jury could have found that Dr. Minkin’s negligence was a proximate cause of Lana’s death.

The healthcare providers argued that Dr. Pushkas failed to establish that there was a greater than 50 percent chance Dr. Minkin’s negligence caused Lana’s death. They pointed to Dr. Pushkas’s opinion testimony that with Stage I-B breast cancer, Lana had an 80 percent chance of survival within five years if the cancer had been caught in May 2012, and that when she was finally diagnosed with cancer in August 2013, she was at Stage III-A, with a 66 percent chance of survival over five years. They asserted that if Lana had an 80 percent chance of survival when Dr. Minkin allegedly misdiagnosed her in 2012 but still had a 66 percent chance of survival even after she was diagnosed in 2013, then the Burtons had failed to prove that it was more likely than not that Dr. Minkin’s negligence led to Lana’s death. In other words, they claimed that Dr. Pushkas established “mere possibility” that the healthcare providers’ negligence might have been a cause of Lana’s death.

However, in addition to the testimony pointed to by the healthcare providers, Dr. Pushkas testified that if a cancer at Stage I, II, or III spreads, or metastasizes, “the patient will die.” Dr. Pushkas also testified that patients with Stage III cancers typically have a survival of 50% or less in five years. Dr. Pushkas stated that Lana was also a “triple negative” patient, meaning that she would not respond as well to various treatments, such as chemotherapy, radiation, or hormonal drugs due to her biological make up.

Dr. Pushkas opined that with triple negative patients, it is “particularly important that we get to the cancer early before it gets to the point where we cannot control it anymore because our chemotherapy is not that good for triple-negative breast cancer.” He testified that the failure to remove the cancer in May 2012 led to its spreading to Lana’s liver, lungs, and lymph nodes by August 2013, when she went for a follow-up examination and underwent a biopsy. He opined that even with her other health problems, diabetes, high-blood pressure, high cholesterol, obesity, but for the metastatic breast cancer, Lana would have lived to between 70 and 75, although she would not have been in the best of health.

The totality of Dr. Pushkas’s testimony provided more than merely conjecture or speculation that had Dr. Minkin performed a biopsy of the lump in Lana’s right breast in May 2012, it would have revealed that she had cancer. The biopsy would have also revealed that she was a triple-negative patient, and, thus, that the usual course of treatment — chemotherapy, radiation, and hormonal drugs — would not be as effective for her, especially if the cancer spread to other parts of her body, which it did. It could be logically inferred from that testimony that had the cancer been discovered, Lana may have survived.

The jury had the benefit of hearing Dr. Pushkas’s in-person testimony. They evaluated it and were free to believe all, part, or none of it. Edsall v. Huffaker, 159 Md. App. 337, 342 (2004). They were tasked with resolving the conflicting expert opinions, and they did so here in favor of the Burtons.

Assuming the truth of all the Burtons’ evidence and any inferences that might be fairly drawn from it in the light most favorable to them, the jury could have reasonably found that if Dr. Minkin had caught Lana’s cancer in May 2012, she had an 80 percent probability of not dying from Stage I cancer. Because he did not intervene early, the cancer developed to Stage III, spread to other parts of Lana’s body, and killed her. Dr. Pushkas’s testimony and the Burton’s other evidence, when viewed with the opposing evidence presented by the healthcare providers, produced the “slight” evidence needed to send the question of the healthcare providers’ alleged negligence to the jury. evidence. Barnes v. Greater Baltimore Medical Center, Inc., 210 Md. App. 457, 480 (2013).

Accordingly, the circuit court’s grant of judgment notwithstanding the verdict was reversed, and the jury’s reward was reinstated.

COMMENTARY: The Burtons argued that when the trial judge granted the motion JNOV, he erroneously applied the principles of “loss of chance,” which Maryland courts have not recognized as a viable tort theory. “Loss of chance” is a tort theory that permits recovery for avoiding some adverse result or of achieving a more favorable result. “Loss of chance” of survival refers to “decreasing the chance of survival as a result of negligent treatment where the likelihood of recovery from the preexisting disease or injury, prior to any alleged negligent treatment, was improbable, i.e., 50% or less.” Maryland falls squarely among the jurisdictions that do not recognize loss of chance as a theory of tort recovery in medical malpractice cases. See, e.g., Fennell v. Southern Maryland Hospital Center, Inc., 320 Md. 776 (1990).

In the present case, however, the trial judge did not erroneously apply the tort theory of “loss of chance.” In reaching his decision to grant the defendants’ motion JNOV, the trial judge stated that the plaintiffs had not met their burden of proving proximate cause. Moreover, the defendants’ themselves consistently argued that Dr. Pushkas had failed to establish causation. This was not a “loss of chance” case because the testimony that the trial court considered in granting the defendants’ motion for JNOV was that Lana’ chance of survival exceeded 50 percent. Although he used words like “chance of survival” and “loss of survival” the judge undertook a proximate cause analysis. As such, the Burtons’ argument that the judge considered loss of chance in reaching his decision was without merit.


PRACTICE TIPS: Maryland Rule 2-532(a) permits a party to move for judgment after a jury has rendered a verdict, but only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion. Generally, the motion must be filed within ten days after entry of judgment on the verdict.

Corporate Law

Religious corporations

BOTTOM LINE: In the absence of any provision otherwise, the Board of Trustees, not the congregation, was the body corporate of a religious organization, and the Board of Trustees, in accordance with its Articles of Incorporation and applicable statutes, had the authority to terminate the pastor.

CASE: Vaughn v. Faith Bible Church of Sudlersville, No. 1258, Sept. Term, 2019 (filed Nov. 19, 2020) (Judges Leahy, SHAW GETER & Eyler (Senior Judge, Specially Assigned)).

FACTS: In the summer of 2016, John Stoltzfus began discussions with Pastor Michael Creed of Independent Baptist Church (“IBC”) regarding his desire to found a local Baptist church. During their negotiations, it was agreed that Creed’s son-in-law, R. James Vaughn, would serve as pastor of the new church. At a meeting in October 2016, Creed, Stoltzfus, and three additional parties signed articles of incorporation.

On November 15, 2016, the Maryland Department of Assessments and Taxation accepted Articles of Incorporation for Shore Haven Baptist Church of Sudlersville, Maryland, filed under the Maryland Religious Corporations Law, Md. Code Ann., Corps. & Ass’ns §5-304. The first section of the Shore Haven Articles of Incorporation provided that five signatories – Pastor Creed, Patrick Creed, Sr., Jon Rediger, Stoltzfus, and Jonathan Stoltzfus, Stoltzfus’s son – had been elected by the members of the congregation of Shore Haven Baptist Church of Sudlersville, Maryland “to act as trustees in the name and on behalf of said congregation and do hereby associate ourselves as incorporators with the intention of forming a religious corporation under the general laws of Maryland.”

The third section of the Shore Haven Articles of Incorporation defined the corporation’s purpose: “The Corporation is organized as a church exclusively for religious, charitable, and educational purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986 (or the corresponding provision of any future United States Revenue Law), including for such purposes, but not limited to, promoting the cause of Christ; advancing the kingdom of God; winning the unsaved; reaching the unchurched; encouraging the development of all members and others in Christian living; and engaging in any other activity that is in the furtherance of section 501(c)(3) tax-exempt purposes.”

On November 27, 2016, Independent Baptist Church held an ordination and sending service for Vaughn and “planted” Shore Haven Baptist Church of Sudlersville, Maryland as an IBC mission church. On that same day, IBC members unanimously voted to install its Constitution as the constitution for Shore Haven. The Constitution made no mention of appointing or dismissing clergy but did provide that the officers of the church had the authority to conduct all of the business affairs of the church.

In late 2018, early 2019, Shore Haven trustees began discussing removal of Vaughn as pastor of Shore Haven, due to his conduct. On March 3, 2019, the Board of Trustees convened, with all seven elected board members and Vaughn, a trustee by virtue of his position as pastor, in attendance. Five elected board members voted to remove Vaughn, and two trustees and Vaughn voted in opposition. Following the meeting, Vaughn was issued a letter instructing him to remain away from Shore Haven Church and to vacate the residence on Shore Haven’s property on or before April 5, 2019.

On March 22, 2019, Shore Haven filed a Complaint for Declaratory Judgment and Ancillary Injunctive Relief. On June 3, 2019, after the complaint was filed, Shore Haven changed its name to Faith Bible Church of Sudlersville. Following a trial, the circuit court issued its memorandum opinion and order and declaratory judgment finding that the Shore Haven Board of Trustees acted within the scope of its corporate and statutory authority when it voted to end Vaughn’s tenure as pastor. Vaughn’s third-party complaint was dismissed.

Vaughn appealed to the Court of Special Appeals, which affirmed the judgment of the circuit court.

LAW: Vaughn argued that the Maryland Religious Corporation Act did not permit the Shore Haven religious corporation trustees to terminate the pastor of Shore Haven Baptist Church. He contended that the trustees’ authority was limited by §5-306 of the Md. Code Ann., Corps. & Ass’ns, because the statute contains no language expressly authorizing the trustees to “control any operation of the church,” aside from the church’s assets. Vaughn also asserted that the decision to remove him involved “ecclesiastical matters,” and, thus, should have been left to the Shore Haven congregation.

Contrary to Vaughn’s assertion, the powers of a religious corporation are not limited to those specifically delineated in the Maryland Religious Corporations Article. Instead, the statute must be read as part of the Maryland Corporations and Associations Article, which confers “general powers” upon corporations, including religious corporations, to perform acts that are consistent with their charters. See Md. Code Ann., Corps. & Ass’ns §2-103(18). Churches in Maryland formally organize as religious corporations and thus, the trustees, not the congregation, constitute the corporation. See Phillips v. Insley, 113 Md. 341 (1910).

The decision of the Court of Appeals in Stubbs v. Vestry of St. John’s Church, 96 Md. 267 (1903), which was relied upon by the trial court, was instructive as to the issue of the trustees’ authority. In Stubbs, a church’s vestry removed the rector from his office without any action by, or notice to, the congregation. Id. After his removal from office, the rector filed for an injunction, citing two claims: (1) according to the laws of the state, only the congregation had authority to remove him from office; and (2) even if the vestrymen had the power to remove him, their action was inequitable because his salary was in arrears and he did not receive reasonable notice of his termination. Id. At the outset, the Court of Appeals found that the controversy did not involve any ecclesiastical question or any question of ecclesiastical law, but instead concerned the construction of an act of assembly and the charter or constitution of St. John’s Church and had relation to nothing more than a discussion of the ordinary powers of a private corporation. Id.

The deed of incorporation expressly provided that the corporation had the power to appoint the rector but was silent as to who had the power to remove. Id. The Court then acknowledged that the vestry, not the congregation, was the “body corporate,” and the congregation’s power is to elect persons to constitute a body politic or corporate upon being registered. Id. The Court noted that if the power to remove the rector resided in the congregation, “it must so reside by reason of there being an express delegation of it to the congregation.” Id. Finding no such authority in the church’s governing documents, the Court determined that the right to remove the rector was not conferred upon the congregation but rather to the “body corporate” – that is, to the vestry, and that “inherent in the power to appoint is the power to remove.” Id. at 917.

The present case was analogous to Stubbs, and the teachings of Stubbs applied. Here, while the church’s incorporation documents did not expressly provide for the appointment or removal of a pastor, the trustees were clearly the “body corporate,” and there were no documents conferring any authority to the congregation. The trial court made a factual finding that Vaughn was the de facto Pastor of Shore Haven through acquiescence of the Shore Haven trustees. This finding was based on the evidence presented at trial and was not erroneous. The court also found that Shore Haven never adopted a new or different constitution, and therefore, the authority to terminate Vaughn was vested in the governing body, i.e., the trustees of Shore Haven. This finding was also supported by the evidence. As such, the trustees properly acted in accordance with their corporate authority.

In sum, the Shore Haven Board of Trustees, in accordance with its Articles of Incorporation and applicable statutes, had the authority to terminate Vaughn as pastor. Contrary to Vaughn’s assertions, the trustees’ actions were within the scope of their corporate authority. Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Vaughn also argued that Shore Haven trustees lacked authority to terminate him because the firing of a church pastor is an ecclesiastical matter reserved to the church, not the trustees. He cited Downs v. Roman Catholic Archbishop of Baltimore, 111 Md. App. 616, 624–25 (1996), for the assertion that “the relationship between an organized church and its ministers is its lifeblood. The minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern.”

To be sure, ecclesiastical matters are within the province of the church and not civil courts. See Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 713–14 (1976). Here, however, there was no evidence that the Board’s decision was based on disputes regarding religious doctrine, biblical interpretations, or other ecclesiastical matters. As stated by Shore Haven, “Vaughn’s personal behaviors, organizational shortcomings, inability to manage a breakdown in civility, and over-heated remarks” drove the decision. The action taken by the Shore Haven trustees was a “personnel decision” and was within the “ordinary powers of a private corporation.” See Jenkins v. New Shiloh Baptist Church of Baltimore, Md., Md. 512, 521 (1948).


PRACTICE TIPS: The Supreme Court has held that both the Free Exercise and Establishment Clauses of the First Amendment prohibit judicial review of religious questions. However, the First Amendment does not proscribe all inquiry by a court of church disputes, but only those dealing with questions of discipline, or of faith, or ecclesiastical rule, custom, or law. In Maryland, courts resolve religious organizations’ secular disputes, involving property interests or requiring an interpretation of corporate charters or bylaws, through the application of neutral principles of law.



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