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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1199 September Term, 2010

RICHARD TEMPEL, ET AL.

v.

ELENA L. MURPHY, ET AL.

Eyler, James R., Watts, Sharer, J. Frederick (Retired, specially assigned), JJ. Opinion by Eyler, James R., J.

Filed: October 28, 2011

This appeal arises out of a medical negligence lawsuit, instituted in the Circuit Court for Baltimore County, involving the death of 59-year old Thomas Murphy at St. Joseph Medical Center ("St. Joseph's"). Survival and wrongful death claims were subsequently brought by Elena Murphy, individually and as the personal representative of the Estate of Thomas Murphy, and Caroline and Meghan Murphy (collectively "appellees"), against Melissa Fox, M.D.; her employer, Patient First of Maryland ("Patient First"); David Utzschneider, M.D.; his employer, St. Joseph's; Richard Tempel, M.D.; and his employer, Osler Drive Emergency Physician Association. Prior to the jury trial, appellees settled with Dr. Fox, Dr. Utzschneider, and their employers at a private mediation. Dr. Tempel and his employer, appellants, did not settle with appellees. After learning of the settlements, appellants moved to compel the production of the settlement documents. The motions were denied. On March 29, 2010, at the conclusion of an eleven-day trial, the jury awarded appellees damages totaling $1,440,000: $5,000 in funeral expenses; $235,000 in loss of household services; $600,000 for the loss of Mr. Murphy's salary; $300,000 in noneconomic damages to Mrs. Murphy; $100,000 in non-economic damages to Meghan Murphy; $100,000 in non-economic damages to Caroline Murphy; and, $100,000 in damages to Mr. Murphy's estate for pain and suffering. Subsequently, on April 12, 2010, appellants moved for judgment notwithstanding the verdict on the issue of Mr. Murphy's lost salary, arguing that the $600,000 award was speculative and that appellees had failed to satisfy their burden of production in that
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regard. The court denied the motion. This appeal followed. On appeal, appellants raise the following questions for our review: 1. Whether the trial court erred by refusing to allow appellants to inspect the amounts of the two settlement agreements prior to judgment? 2. Whether the trial court erred by denying appellants' motion for judgment notwithstanding the verdict as to the speculative nature of the appellees' evidence of loss of financial support? Perceiving no error, we shall affirm. Factual Background The underlying background facts giving rise to the cause of action are not in dispute, nor are they necessary to our disposition. Appellees essentially accept appellants' recitation of the background facts, thus, we shall quote the facts as presented by appellants, omitting footnotes and citations to the record. We shall supplement and modify the facts where necessary. On Thursday, June 9, 2007, Mr. Murphy and his wife (a nurse) came to Patient First and saw Dr. Melissa Fox. Mr. Murphy complained of fever, chills, aches, pains, and generalized malaise of two days in duration. Following a physical exam and laboratory testing, Dr. Fox's impression was that Mr. Fox had the flu, and possibly Lyme disease. She took a Lyme titer, gave him 2 liters of fluids, prescribed him doxycycline, and instructed him to return to Patient First as needed. Mr. Murphy and his wife presented to [St. Joseph's] at approximately 5:30 p.m. on June 10, 2007. Mr. Murphy was triaged at 5:36 p.m., placed in a room by 5:55 p.m., and between 6:15 p.m. and 6:30 p.m., he was seen by Dr. Tempel.
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His chief complaint at that time was trouble breathing. His EKG and heart enzymes were normal, which indicated that his troubles were probably not cardiac in origin. Dr. Tempel ordered a CT scan of Mr. Murphy's chest, 1 liter of fluid, and laboratory work. The labs came back at 7:10 p.m. and were suggestive of an infection. At 7:20 p.m., Dr. Tempel ordered Levaquin, a broad-spectrum antibiotic. Mr. Murphy was in the CT scan until 7:45 p.m., so he received the Levaquin at approximately 8:00 p.m. Dr. Tempel reviewed Mr. Murphy's CT scan and believed that he saw a suspicious area in Mr. Murphy's lung. Given Mr. Murphy's trouble breathing, the results of the CT scan, and the lab results, Dr. Tempel believed Mr. Murphy was suffering from pneumonia and dehydration. At 8:40 p.m., Dr. Tempel ordered that Mr. Murphy be admitted to [St. Joseph's]. Dr. Tempel, as the ER physician, could not actually admit Mr. Murphy to the hospital, so he paged Dr. Utzschneider, the admitting physician on call, at 8:53 p.m. Dr. Utzschneider phoned in his admitting orders from home at 9:10 p.m. He never came in to see Mr. Murphy. Instead, he asked the hospitalist to perform the admitting history and physical. He also reduced the amount of fluids that Dr. Tempel had ordered for Mr. Murphy. For some reason that the parties were never able to determine, Mr. Murphy was not actually transferred from the ER to the floor until approximately midnight. The hospitalist saw Mr. Murphy about ten minutes later. By 3:00 a.m., Mr. Murphy's condition had deteriorated. His blood pressure began to fall and he developed abdominal distension. At 10:00 a.m. and again at noon on June 11, 2007, he suffered cardiac arrests, but was successfully resuscitated. At 2:00 p.m., he was taken to surgery in an attempt to discover whether there was an abdominal source of the infection. Mr. Murphy arrested on the operating room table and died. To this day, no one has been able to identify the cause of Mr. Murphy's infection. * * *
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After learning that Dr. Fox and Patient First had settled with appellees, appellants' counsel requested by letter a copy of the settlement agreement and release, noting that these documents had been requested in discovery and that they would "significantly impact[] upon [appellants'] defense strategy in this case." Appellants also suggested that they were "entitled to determine if the release is a joint tort feasor type release," and were "entitled to know the amount that Patient First paid in settlement as it will also dramatically impact upon defense strategies in this case." Counsel for Dr. Fox and Patient First responded that she would not provide copies of the requested documents, but represented that the "executed Release is a standard non-Sw[]igert Joint Tortfeasor Release.1 Therefore, you need not prove your case against Dr. Fox at trial to receive a reduction." Counsel continued that "the amount of settlement with Dr. Fox is information which you are not entitled to at this time and which does not effect your trial strategy . . . . The only time the amount of settlement would become relevant as it relates to your client would be after a verdict against your client

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