## Facts

- Judith Phillips, a nursing-home aide, slipped and fell at work in November 2003 and was transported to a hospital emergency department immobilized on a backboard.
- Dr. Deborah Davis, an emergency physician affiliated with an emergency-physician group, evaluated Phillips; the record noted hip, knee, and slight lumbar pain.
- Dr. Davis diagnosed contusions and discharged Phillips; no spinal examination was documented in the chart.
- Phillips later was found to have a vertebral fracture, underwent spinal fusion surgery, suffered complications, and remained in a persistent vegetative state until her death in June 2011.
- Phillips’s guardian, Sean Rosebrock, sued Dr. Davis and institutional defendants for medical malpractice, alleging failure to examine and diagnose a spinal injury.
- At the 2011 jury trial, Dr. Davis testified she had no independent recollection of treating Phillips but described her invariable routine when treating backboarded patients, including performing a spinal exam before removing them from the backboard.
- Over objection, the trial court admitted this testimony as habit evidence under Maryland Rule 5-406 and permitted defense experts to opine that Dr. Davis met the standard of care based on the chart and her described routine.
- The jury found Dr. Davis not negligent; post-trial motions were denied.
- Phillips died after judgment but before the notice of appeal was filed; defendants moved to dismiss the appeal based on Rosebrock’s authority after Phillips’s death.

## Issues

1. Whether the trial court abused its discretion by admitting Dr. Davis’s testimony about her routine treatment of backboarded patients as habit evidence under Maryland Rule 5-406.
2. Whether the trial court abused its discretion under Maryland Rules 5-702 and 5-703 by allowing defense experts to opine that Dr. Davis complied with the standard of care using the chart and Davis’s habit testimony as a factual basis.
3. Whether the appeal should be dismissed because the ward died after judgment but before the notice of appeal, allegedly terminating the guardian’s authority to proceed.

## Decision

- The appellate court affirmed the defense judgment.
- The court held the trial court did not abuse its discretion in admitting Dr. Davis’s testimony as habit evidence under Rule 5-406.
- The court held the trial court did not abuse its discretion in admitting defense expert testimony on standard of care under Rules 5-702 and 5-703.
- The court denied defendants’ motion to dismiss the appeal, concluding dismissal was unwarranted on the specific timing and authorization facts presented.
- Because the judgment was affirmed, the court did not reach defendants’ conditional cross-appeal issues.

## Legal Principles

- Habit evidence is admissible to prove conduct on a particular occasion when it reflects a regular, specific, semi-automatic response to a repeated situation, not a general claim of carefulness.
- A physician’s testimony describing an invariable, particularized routine for a defined clinical scenario (e.g., evaluation steps for backboarded patients), offered when the physician lacks specific recollection, may qualify as habit evidence.
- Maryland Rule 5-406 does not require corroboration of habit testimony as a condition of admissibility; lack of corroboration generally affects weight, not admissibility.
- Expert opinions are admissible when grounded on sufficient facts or data and will assist the factfinder; experts may base opinions on properly admitted evidence and on materials reasonably relied upon in the field.
- Once habit testimony is admitted, experts may use it (along with the medical record) as part of the factual foundation for standard-of-care opinions.
- Although a decedent’s personal representative is ordinarily the proper party to prosecute claims after death, an appellate court may decline to dismiss an appeal filed promptly where authorization occurred before death and filing occurred without knowledge of the death, subject to appropriate substitution when required.

## Conclusion

The court upheld a defense verdict in a medical-malpractice action, ruling that a physician’s detailed, invariable routine in treating backboarded patients was admissible as habit evidence and could support defense expert standard-of-care opinions, and it declined to dismiss the appeal despite the ward’s death occurring immediately before the notice of appeal was filed.


Rosebrock v. E. Shore Emergency Physicians, LLC, 221 Md. App. 1, 108 A.3d 423 (Md. Ct. Spec. App. 2015)