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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2936 September Term, 1999

LINDA McCOY, ET AL.

v. BILLIE HATMAKER, ET AL.

Hollander, * Thieme, Krauser, JJ.

Opinion by Thieme, J.

Filed: December 26, 2000 * Thieme, J., participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.

This is an appeal from summary judgment granted to appellees in a wrongful death claim and survival action. Appellant Linda

McCoy, individually and as personal representative of the estate of William McCoy, filed a complaint on January 10, 1999, in the Circuit Court for Baltimore City against two Baltimore City

employees, paramedic Billie R. Hatmaker and police officer Brian Schwaab; the Baltimore City Police Department;1 and the Mayor and City Council of Baltimore City. Hatmaker and Officer Schwaab filed separate motions for

summary judgment, and the court heard these motions and McCoy's opposition to them on January 14, 2000. adopting Hatmaker's pleadings on the The City filed a line same day, although its

separate summary judgment motion was not before the court at that time. The court granted Hatmaker's and Schwaab's motions at the hearing, and it later granted Baltimore City's motion for summary judgment on February 10, 2000. and McCoy now asks: 1. Did the court below err in considering and granting appellees' motions for summary judgment on the basis that appellant failed to make a prima facie showing of gross negligence on the part of appellees Hatmaker and Schwaab, even assuming the truth of all allegations against them? This appeal followed,

The court granted the Baltimore City Police Department's motion to dismiss on July 8, 1999. The department is no longer a party to this case.

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2.

Did the court below abuse its discretion by striking an affidavit of appellant's expert witness contradicting that witness's deposition testimony, because it included testimony that amounted to a legal conclusion and because appellant submitted it beyond the discovery deadline? Did the court below abuse its discretion when it quashed the subpoena for the deposition of a supervising Lieutenant who investigated the incident and entered a protective order barring, as privileged, discovery of his report?

3.

To these questions, we answer "no" and explain. Facts On the evening of January 24, 1996, William McCoy, age 62, was driving himself and a co-worker, Bernard Lowe, to their

place of employment.

McCoy typically picked up Lowe at about

10:00 p.m. so that the two would arrive in time for their 11:00 p.m. shift. McCoy, heading north on Hanover Street in Baltimore City, stopped for a red light. As the two men conversed, Lowe

recalls, the following took place: I said something to Bill, and Bill never answered me. I said, "You didn't see that Bill?" I turned around and looked, and I thought Bill dropped his cigarette between his legs because his head was down and his hand was in his lap, and I thought he dropped his cigarette. I'm like, "Hey

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Bill," and nothing.

there

was

no

response,

no

The next I know we're going off into the parked cars. I reached over and grabbed the steering wheel. I'm still yelling at him and I grabbed the steering wheel and got it straight back out on the street to keep us from hitting the parked cars. That's how it happened. Lowe then engaged the emergency brake. When the car had

come to a stop, Lowe explains, McCoy was still in the driver's seat, non-responsive to Lowe's efforts to rouse him and making what Lowe described as gargling noises. flagged Bradley. He asked me what was going on. I told him something is wrong with my buddy. I said, "All he's doing is gargling. I thought he dropped his cigarette." He heard me yelling, "Bill, Bill," and he walked over, put his hand in the throat area by his ear and stuff I guess to check for a pulse, and he said something. Officer Bradley told Lowe that McCoy had a "small pulse," then called for assistance on his shoulder radio. After Officer Bradley called for assistance, Officer Brian Schwaab arrived at the scene. Officer Schwaab is a trained down a passing police car, Lowe left the car and by Office Irvin

driven

emergency medical services provider who is qualified both as a first responder and an emergency medical technician ("EMT"). At

the time, he had been about eight blocks away, patrolling the

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lower area

of

the

southern

district.

Responding

to

Officer

Bradley's call for assistance, he estimated that he arrived at the scene within "a minute" of hearing the call. with him a personal resuscitation mask. Officer Schwaab immediately asked Officer Bradley what had occurred. He also went over to McCoy, ensured that his airway He did not feel one. Before He brought

was open, and checked for a pulse.

he could start cardiopulmonary resuscitation ("CPR"), however, Officer Schwaab noticed an ambulance, Medic 5, rounding the

corner to turn southbound on Hanover Street. Although appellant now seeks to infer otherwise, the

undisputed evidence, including City records and staff testimony, shows that Medic 5 reached the scene only on its second attempt. Medic 5 was initially dispatched at 10:21 p.m. Because of

confusion relating to the exact location of McCoy's vehicle, the ambulance initially went to the wrong address. The same rig was

then dispatched a second time -- in fact, Paramedic Hatmaker, who was with the ambulance, even recorded a new call on the run sheet -- at 10:25 p.m., and it reached the scene at about 10:30 p.m. Officer Schwaab greeted the ambulance crew with the news

that McCoy was in full cardiac arrest. Paramedic condition. He Hatmaker noted ran that to McCoy's who car was and assessed over his the

McCoy,

slumped

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steering wheel, showed no visible signs of life. pulse in McCoy's carotid artery.

He felt no

Placing his stethoscope under

McCoy's sweatshirt, Hatmaker listened for a heartbeat and heard none.2 Heart sounds, in fact, were entirely absent. Hatmaker

next examined McCoy's eyes by opening his eyelids and examining his pupils with a penlight. He observed McCoy's pupils to be He then checked McCoy's blood, and found none.

fixed and dilated and his sclera dry. body for signs of trauma, including

Finally, Hatmaker observed that McCoy had already released body fluids and his body temperature had already dropped markedly. He thus concluded that McCoy was dead and was not a viable candidate for resuscitation. Because he considered his job there over, Hatmaker proceeded to complete a Maryland Ambulance Information Sheet regarding the call, then conferred with police, who would summon the Medical Examiner to remove McCoy's body from the car and transport it to the morgue. In her complaint, appellant alleged that Hatmaker breached his duty of care to McCoy by "failing to render appropriate resuscitation
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and

emergency

medical

treatment"

and

"violating

Appellant alleges that Hatmaker applied the stethoscope on top of McCoy's sweatshirt; however, no evidence exists to support her assertion. In fact, neither Lowe nor Officer Schwaab was present when Hatmaker examined McCoy. Indeed, Lowe testified that he walked away from the car, and both men aver that they were in a home across the street using the telephone of the resident while Hatmaker examined McCoy.

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the Maryland State Protocols for Cardiac Rescue Technician and Emergency Medical Technician/Paramedic Guidelines for deceased cases" (hereinafter the "Maryland Institute for Emergency

Medical Services Systems protocols" or the "MIEMSS protocols"). Appellant asserted that, by committing such a breach, Hatmaker was grossly negligent. All of appellant's experts were deposed during discovery, including her emergency medical services expert Gerald M.

Dworkin, who testified at a deposition on October 20, 1999. Additionally, on October 15, 1999, appellant noted the

deposition of Lieutenant William J. Shelley of the Baltimore City Fire Department. on behalf of in the his Lt. Shelley had investigated the incident Department's to the Medical Bureau and chain had of

Fire

concluded,

report

Fire

Department

command, that Hatmaker had violated some MIEMSS protocols when he treated McCoy.3 file. The report was placed in Hatmaker's personnel

On November 9, the Baltimore City Police Department moved

to quash appellant's subpoena duces tecum and prevent discovery of the report, on grounds that such information was confidential and thus not subject to discovery.

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Lt. Shelley had prepared this report in response to a request from McCoy's

son.

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Appellant opposed appellees' motion. court granted that motion, and quashed an the

On December 15, the subpoena for Lt.

Shelley's

deposition,

entered

order

precluding

formal

discovery of any findings or records of the Fire Department's review of Hatmaker's performance in the McCoy incident. reasons that are not clear, we note that appellant For

already

possessed a copy of the report in question.

The court's order,

however, effectively precluded her from using the report. On December 2, Hatmaker and Officer Schwaab moved for

summary judgment, and the City adopted Hatmaker's pleading by line. Appellees argued that, because neither had committed any

willful act nor any grossly negligent act or omission under the standard set forth in Tatum v. Gigliotti, 80 Md. App. 559, 565 A.2d 354 (1989), aff'd, 321 Md. 623, 583 A.2d 1062 (1991), they were immune from suit under both the Good Samaritan Act, Md. Code (1973, 1998 Repl. Vol.),

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