Nathan Bass Dec. 10, 2012, 4:46pm

ANNAPOLIS (Legal Newsline) - The Maryland Court of Appeals has affirmed a Court of Special Appeals decision to allow a physician to pursue contribution from the hospital where he performed treatment that led to an approximately $2.1 million dollar settlement against him.

Christopher and Wycinna Spence, individually and as personal representative of the estate of their son, Caleb Spence, filed a medical malpractice suit against Dr. Emerson R. Julian, Jr. and Mercy Medical Center.

Mercy entered into a pre-trial settlement with the Spences and, per the release, the hospital was dismissed from the case without admitting liability.

The release stated, "that Mercy as "Released Parties" was not a joint tort-feasor and if it were subsequently adjudicated liable, then the Spences' recovery against other defending parties, namely Dr. Julian, would be reduced by Mercy's pro rata share of the judgment, so to "relieve and protect [Mercy] from any liability for contribution to any person."

The Spences also agreed to indemnify Mercy for claims of contribution by Dr. Julian and to hold half of the judgment rendered against Dr. Julian, if they were awarded a judgment, until the doctor's claim for contribution was extinguished.

After the dismissal of Mercy, the case proceeded against Dr. Julian with the trial jury returning a verdict of more than $8 million against the doctor. Pursuant to the state's statutory cap on non-economic damages, the amount was reduced to $2,186,342.50.

Dr. Julian satisfied the judgment in full, and then filed a separate action against Mercy seeking contribution. Contemporaneously, in another court, the Spences brought suit against Dr. Julian seeking a declaratory judgment that Dr. Julian was not entitled to contribution from Mercy.

After the two trial courts came to contradictory conclusions, The Court of Special Appeals took and then consolidated both cases before finding that Dr. Julian had a right to seek contribution against Mercy Medical.

Mercy Medical and the Spences then appealed to Maryland's highest court, the Court of Appeals.

The Court of Appeals, Judge Lynne A. Battaglia wrote, took the consolidated cases to "consider whether Dr. Julian may pursue, in a separate action, contribution against Mercy after it had settled with, and been voluntarily dismissed by, the Spences subsequent to the filing of suit but prior to trial."

"Dr. Julian argues that his pursuit of contribution in a separate action was a matter of trial strategy, because if he had filed a cross-claim against Mercy, the Spences would have presented evidence as to his liability solely, leaving the jury confused and persuaded that Mercy was not liable."

"The Spences separately argue, however, that Dr. Julian waived his right to pursue contribution against Mercy in a separate action, because he failed to plead "release" as an affirmative defense . . . in the original medical malpractice action."

"They contend that Dr. Julian, as third party beneficiary to their Release of Mercy, relies "upon the Spence/Mercy release as the basis for [his] contribution claim."

The Court reasoned, "How Dr. Julian is a third party beneficiary is truly questionable, even unfathomable, because he derives his right to contribution by statute, not as a result of a release that purports to extinguish that right."

"Accordingly, Dr. Julian was not obligated to file an amended Answer in the original action to include release as an affirmative defense, prior to pursuing a contribution action against Mercy."

Although all the judges concurred in the result, Judges Robert N. McDonald and Glenn T. Harrell Jr, and Chief Judge Robert M. Bell, dissented to the majority opinion, indicating that the Court had not made a clear ruling.

Justice McDonald wrote, "It is sometimes not so important what rule is adopted as that some rule is clearly adopted."

"For example, there is no moral imperative that directs the choice between requiring drivers to stay to the right side of the road or to stay to the left. But the choice must be clearly made."

"If not, even the best engineered road will experience head-on collisions."

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