Appellate Court of MD: Arbitration, SAFE Act, probation violation

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Arbitration; non signatories

BOTTOM LINE: Where a doctor asserted claims against his former employer and three coworkers that arose out his employment, the arbitration clause in his employment agreement could be invoked by the non-signatory doctors.

CASE: Kyere Jr. v. Durand, No. 261, Sept. Term, 2024 (filed Feb. 27, 2026) (Judges Berger, LEAHY, Getty)

FACTS: Dr. Sampson Kyere was employed by Sinai Hospital of Baltimore Inc., a subsidiary of LifeBridge Health Inc. After Dr. Kyere filed a 10-count complaint against LifeBridge and Drs. Daniel Durand, Elizabeth Zadzielski and Omar Zalatimo, the circuit court granted the appellees’ motion to compel arbitration.

LAW: Generally, a valid agreement to arbitrate requires the signature of both the party seeking to compel arbitration and the party against whom arbitration is sought. However “courts have permitted a non-signatory agent to enforce an arbitration agreement executed by his principal” when the claims asserted against the agent “relate to the agent’s actions on behalf of the principal.”

Dr. Kyere’s complaint explicitly alleges that at “all relevant times,” the appellees were employees of LifeBridge and members of the medical staff. Dr. Kyere’s allegations all concern actions taken within appellees’ capacity as members of the medical staff, while subject to the control of Sinai and LifeBridge.

Dr. Kyere emphasizes that the medical staff is a distinct legal entity from Sinai and LifeBridge. Although this is true, the medical staff is also clearly subject to the control of Sinai and LifeBridge. This is evidenced by numerous provisions of the bylaws. Even setting aside appellees’ employment relationship with LifeBridge, Dr. Kyere’s allegations that the appellees conspired with LifeBridge to cause him harm support our conclusion that they acted as agents of LifeBridge. Accordingly, appellees are covered under the terms of the arbitration clause in Dr. Kyere’s employment agreement because the claims against them are based on acts they allegedly committed as employees and agents of LifeBridge within the agency relationship that exists between Medical Staff and LifeBridge.

The “equitable estoppel framework” for non-signatories also provides the appellees a clear basis to compel arbitration of Dr. Kyere’s claims against them. Dr. Kyere’s complaint is saturated with “allegations of substantially interdependent and concerted misconduct” between the appellees and LifeBridge. The basic factual picture sketched by the Complaint is that, in response to Dr. Kyere’s request for a modified work schedule, LifeBridge and the appellees worked together to harass, discriminate against and intimidate him until he agreed to resign.

Dr. Kyere nevertheless argues that because his claims against the appellees are either based on breaches of the Bylaws or on independent violations of Maryland law, they fall outside the arbitration clause’s scope. The court disagrees. The arbitration clause, by its terms, covers “any controversy or claim arising out of [Dr. Kyere]’s employment[,]” and not just claims arising out of his employment agreement. Here, the complaint consists entirely of alleged conduct that was related to Dr. Kyere’s employment with LifeBridge.

This court also agrees with the circuit court that the arbitration clause is broad, covering “any controversy or claim arising out of [Dr. Kyere]’s employment,” and that there is nothing in the arbitration clause that “expressly and specifically exclude[s]” any of Dr. Kyere’s claims against the appellees from arbitration. To the extent that the factual allegations encompassed in any claim in Dr. Kyere’s complaint create ambiguity as to whether the letter of agreement and the standard terms apply to that claim, the arbitrability of that claim must be addressed by the arbitrator, not the court.

Judgment of the Circuit Court for Baltimore City affirmed.

Consumer Protection; SAFE Act

BOTTOM LINE: Although the Maryland General Assembly expressly stated that a statute that was enacted to protect vulnerable and elderly citizens applied only prospectively, where the exploiter’s course of conduct spanned nearly eight years and continued until nearly two years after the statute was enacted, the circuit court did not err in applying the statute to the entirety of his conduct and awarding resulting damages.

CASE: Bailey Sr. v. Happer, No. 0685, Sept. Term, 2024 (filed Feb. 25, 2026) (Judges Friedman, Albright, GETTY).

FACTS: The Maryland General Assembly passed legislation to protect vulnerable and elderly citizens through the Statute Against Financial Exploitation, or SAFE, Act. The Act creates a civil cause of action through which a victim of financial exploitation, or a representative of such a victim, may file a civil lawsuit to obtain compensatory damages and other relief from the exploiter.

Jamia Happer, the grand-niece of Diane Delores Terrell brought an action under the SAFE Act against William Bailey Sr., alleging that Mr. Bailey financially exploited her great-aunt, Ms. Terrell, from 2016 through 2023. The circuit court awarded Ms. Terrell $395,310 in damages.

LAW: Mr. Bailey first argues the circuit court improperly applied the SAFE Act here because the majority of his conduct occurred before the Act’s effective date—Oct. 1, 2021—and the Act “would not retroactively apply to actions or conduct that took place prior to its enactment.” Despite Mr. Bailey’s failure to preserve this issue, the question of whether conduct predating the SAFE Act’s enactment can be considered when evaluating a financial exploitation claim is likely to recur in future SAFE Act cases, so the court elects to exercise its discretion to address it.

Absent a manifest legislative intent to the contrary, statutes are presumed to operate prospectively and may not be given retrospective or retroactive application. Here, the court need not presume that the General Assembly intended the SAFE Act to operate prospectively because it said so explicitly. Nevertheless, Ms. Happer’s claim does not run afoul of this provision.

Mr. Bailey’s constant expenditures from Ms. Terrell’s accounts were part of a course of conduct that spanned nearly eight years and continued until nearly two years after the SAFE Act was enacted. As such, this was an ongoing act of financial exploitation that satisfies this court’s past precedent that, although certain facts predate the effective date of the bill, the application of this statute is not retroactive, and the circuit court did not err.

Notwithstanding, Mr. Bailey argues that the damages award should have been limited to only those expenditures which occurred after Oct. 1, 2021, and that the court’s inclusion of all his withdrawals dating back to 2016 was an erroneous retroactive application of the statute. The court disagrees. Because of Maryland precedent on what constitutes retroactive application of a statute, the circuit court did not err, and this court will not require the circuit court to parse out individual transactions in an ongoing course of conduct and shield Mr. Bailey from liability for his entire act of financial exploitation merely because some of his conduct antedated the statute’s enactment.

Mr. Bailey next argues the circuit court improperly shifted the burden of proof because the court commented on the lack of evidence presented concerning the nature of his relationship with Ms. Terrell and the lack of explanation for why she entrusted him with her finances. There is no indication that the court shifted the burden of proof onto Mr. Bailey. The comments Mr. Bailey takes issue with instead indicate the trial judge’s determination of Mr. Bailey’s credibility, especially when considered in their full context.

Mr. Bailey next seeks the protection in the Estates and Trusts Article § 13-601(e)(3), which provides that financial exploitation is not “an individual’s good-faith use of a susceptible adult’s or older adult’s assets, including for the purposes of establishing and implementing an estate plan intended to reduce taxes or to maximize eligibility for public benefits in order to preserve assets for an identified or identifiable person.”

Mr. Bailey argues the numerous payments he made to churches from Ms. Terrell’s accounts would have made her eligible for a reduction in taxes and therefore, he argues, his actions could not have been financial exploitation. Ms. Happer responds that, even though Ms. Terrell may have received a tax benefit for those payments, there was no evidence that the payments were made for that purpose. The circuit court ultimately agreed with Ms. Happer and found that Mr. Bailey had committed financial exploitation in violation of the SAFE Act. This court sees no clear error in that finding.

Judgment of the Circuit Court for Prince George’s County affirmed.

Criminal; probation violation

BOTTOM LINE: Where the circuit court imposed “all standard conditions” of probation when it extended the defendant’s probation after the initial five-year period, it erred. A circuit court may not extend a period of probation more than five years beyond the initial five-year period unless “the extension is only for making restitution.”

CASE: Wharton III v. State, No. 1060, Sept. Term, 2024 (filed Feb. 25, 2026) (Judges WELLS, Leahy, Harrell).

FACTS: Kenneth Lee Wharton III, appeals the denial of his motion to correct illegal sentence. He contends the circuit court imposed an illegal sentence when it extended his probation in 2019, because he did not validly consent to it in writing, as required by Md. Code Ann., Crim. Proc., or CP, § 6-222(c)(1). The state agrees the 2019 extension was an illegal sentence, but for a different reason: it claims the circuit court imposed “all standard conditions” of probation, which exceeded its authority under CP § 6-222(c)(2) because the extension must be “only for making restitution.”

LAW: At the 2019 hearing, the court explained to Wharton that it was “going to extend [his] probation for the purpose of restitution for an additional five years with the same payments to be made.” Wharton signaled his understanding of the extension and then signed the Second Amended Probation/Supervision Order.

The court wrote on the Order that it was “extend[ing] [Wharton’s] probation for 5 years from 9-24-19.” Wharton signed the Consent section of the Order. By signing the Consent section, Wharton acknowledged and agreed to the terms of his probation. On appeal, Wharton draws a distinction between consenting to the conditions of his probation and consenting to the extension itself. This is a distinction without a difference.

Wharton had all the necessary information when he signed his probation order; he had been advised orally of the extension, and it was written on the order along with the other conditions the court imposed. Put simply, by signing his probation order, Wharton consented to the conditions of his probation for the extended duration of his probation. In doing so, he necessarily—if implicitly—consented to the extension itself.

It makes no difference that the non-restitution conditions were illegal. To be sure, a defendant cannot consent to illegal conditions of probation. But the inclusion of the illegal conditions did not invalidate Wharton’s consent to the extension; conversely, his consent to the extension did not validate the illegal conditions. Therefore, Wharton’s signature on the 2019 probation order was sufficient written consent to the extension under CP § 6-222(c)(1).

Despite Wharton’s otherwise valid consent, however, the 2019 extension was still an illegal sentence. A circuit court may not extend a period of probation more than five years beyond the initial five-year period unless “the extension is only for making restitution.” In making these further extensions, the court “does not have the authority to impose any conditions of probation other than to make restitution payments and not to hinder supervision of those payments.”

Here, the circuit court extended Wharton’s probation more than five years beyond the initial five-year period for the purpose of restitution and imposed the standard conditions of probation. The addition of these conditions was impermissible. Although Wharton otherwise validly consented to the 2019 extension, he could not consent to an inherently illegal sentence. Thus, the circuit court erred in denying Wharton’s motion to correct an illegal sentence, and its judgment is reversed. And correcting Wharton’s illegal sentence requires also setting aside the 2021 violation of probation findings.

Judgment of the Circuit Court for Worcester County vacated.

Negligence; experts

BOTTOM LINE: Where the circuit court held an anesthesiologist could not testify as an expert about how a patient should be discharged while recovering after an upper endoscopy procedure, because the defendant who allegedly breached the standard of care was a gastroenterologist, it erred. The two types of specialists share some common responsibility for post-procedure care, such that either specialist should be equally capable of assessing how the patient should be discharged while recovering after the procedure.

CASE: Reid v. Baltimore Ambulatory Center for Endoscopy, LLC, No. 2349, Sept. Term, 2023 (filed Feb. 27, 2026) (Judges Graeff, ARTHUR, Woodward).

FACTS: On Oct. 13, 2015, Carroll Reid underwent an upper endoscopy at an outpatient surgical facility operated by Baltimore Ambulatory Center for Endoscopy LLC, or BACE. While walking back to the parking lot outside the facility, Mr. Reid fell to the ground and injured his back. He died two weeks later from complications related to emergency spinal surgery.

Mr. Reid’s surviving family members brought a medical negligence and wrongful death action. The court granted summary judgment in favor of the gastroenterologist who performed the endoscopy. After an eight-day trial, the jury found no violations of the applicable standards of care by the nurse anesthetist who administered anesthesia to Mr. Reid (Sergott) or by the licensed practical nurse who monitored him after the procedure (Dinisio).

LAW: Under the Health Care Malpractice Claims Act, if a defendant health care provider is board certified in a specialty, an expert may not opine that the defendant departed from the standard of care unless the expert is “board certified in the same or a related specialty as the defendant.”

In this case, the defendant, Dr. Khan, is board-certified in gastroenterology, while the expert witness, Dr. McAlary, is board-certified in anesthesiology. The circuit court concluded that, in the context of this case, these two specialties were not “related” within the meaning of the Health Care Malpractice Claims Act.

In this court’s assessment, the summary judgment record adequately established that the allegations against Dr. Khan implicate an overlap between gastroenterology and anesthesiology. Although some responsibilities are separate, the two types of specialists share some common responsibility for post-procedure care, such that either specialist should be equally capable of assessing how the patient should be discharged while recovering after the procedure. The purported expert here, anesthesiologist Dr. McAlary, had extensive experience with the same type of procedure, performed in the same clinical setting, in a role analogous to the anesthetist at the BACE facility.

The circuit court did not discuss whether Dr. McAlary has experience with the procedure or treatment at issue. Nor did the court acknowledge Dr. McAlary’s assertion that the standard of care would be the same regardless of which specialist performed the discharge assessment. Instead, the court highlighted that there was “no evidence of similar training” between the specialties in this case.

However no authority requires the plaintiff to produce “evidence of similar training” in order to establish a connection between two specialties. The primary focus is not on whether training regimens overlap but on whether “there is an overlap in treatment or procedures within the specialties and therefore an overlap of knowledge of treatment or procedures among those experienced in the fields or practicing in the specialties[.]”

The plaintiffs also fault the circuit court for failing to address the qualifications of a second potential standard-of-care expert, Dr. Krasnow. However, a review of the record shows that the plaintiffs waived any contention that Dr. Krasnow was qualified to testify about the standard of care applicable to Dr. Khan. Nevertheless, for the reasons stated above, the order granting summary judgment in favor of defendant Dr. Khan and defendant Jahangir Khan, M.D. LLC is reversed.

The plaintiffs next contend that, if this court reverses the summary judgment ruling in favor of Dr. Khan, it also must set aside the verdicts in favor of Sergott and Dinisio. The court disagrees. If the case had proceeded to trial against all defendants (including Dr. Khan), the jury still would need to make individualized determinations of whether the plaintiffs proved by a preponderance of the evidence that Sergott or Dinisio violated the applicable standards of care.

The plaintiffs next take issue with the court’s rulings precluding certain expert
testimony about the cause of Mr. Reid’s fall, precluding certain expert testimony about the adequacy of BACE’s policies, omitting from the verdict sheet a question about negligence of BACE and allowing the jury to consider the issue of contributory negligence. Assuming, without deciding, that the court erred in each of these rulings, this court sees no substantial likelihood that any of these purported errors affected the jury verdicts in favor of Sergott or Dinisio.

The complaint alleged that, at the time of the alleged negligence, Dr. Khan and Jahangir Khan, M.D. LLC, acted as employees or agents of BACE. As a result of the summary judgment ruling, the court never adjudicated the issue of whether an agency relationship exists between those defendants and BACE. BACE concedes that, if this court reverses the summary judgment ruling, this court must vacate the judgment with respect to claims that BACE is vicariously liable.

However, the plaintiffs have failed to demonstrate any error in the circuit court’s ruling granting a partial judgment as to claims of negligence by BACE, independent from its agents or employees. At a second trial on remand, therefore, the claims against BACE are limited to a theory of vicarious liability.

The court will discuss the remaining issues raised in this appeal because those issues might recur at a second trial and because the resolution of those issues might affect the scope of the issues at a second trial. First, the plaintiffs contend that the circuit court abused its discretion when it precluded one expert witness, Dr. Krasnow, from opining that anesthesia caused Mr. Reid’s blood pressure to decline and that the decline in blood pressure caused him to fall outside of the BACE facility. This court perceives no abuse of discretion in the court’s ruling.

Next, while the plaintiffs contend that the circuit court erred by precluding Dr. McAlary from offering opinions about the adequacy of “policies” of BACE, the record is inadequate to evaluate any alleged error because the plaintiffs made no proffer of what Dr. McAlary might have said in response to the question about what he meant when he “indicated” that BACE’s policies were “insufficient[.]”

Third, the plaintiffs contend that the circuit court erred by failing to include questions on the verdict sheet asking whether Sergott and Dinisio acted as agents of BACE. This contention is not properly preserved. Finally, the court agrees with the plaintiffs that the evidence did not properly generate an affirmative defense of contributory negligence.

Judgment of the Circuit Court for Baltimore County affirmed in part and reversed in part.