Item: Miller & Zois, Attorneys at Law
Rating: 5
Author: Terry Waldron

Below is a sample stipulation dismissing the doctors and just suing the hospital for the doctors’ conduct. We will explain the rationale for this in a moment.

But just keep one thing in mind: the details of this stipulation matter. You do not want language intended merely to dismiss the individual doctors to inadvertently release the underlying negligence claims or compromise your vicarious liability case against the hospital. So make sure you get the language of the stipulation right.

Why Dismiss the Doctors and Sue the Hospital?

In a medical malpractice lawsuit, there are several reasons why a plaintiff may want to dismiss the individual doctors while continuing to pursue the hospital for the doctors’ conduct:

Simplifies the Case: If the hospital agrees that the doctors were its employees or agents and were acting within the scope of that relationship, there may be little practical reason to keep every individual doctor in the case. The plaintiff still has to prove the doctor’s negligence. But the hospital agrees that it will be responsible for that negligence under the doctrine of respondeat superior or vicarious liability. This can simplify the parties, the verdict sheet, and the presentation of the case to the jury.
Eliminates the Agency Fight: Hospitals sometimes argue that a doctor treating a patient in their facility was not actually their employee or agent. A stipulation can take that issue off the table. The hospital agrees that the doctor was acting within the scope of the employment or agency relationship and that the plaintiff can pursue the hospital based on the doctor’s alleged acts and omissions.
Vicarious Liability: Under the legal doctrine of vicarious liability, an employer can be held responsible for the negligence of an employee committed within the scope of employment. So if the hospital stipulates to the employment relationship and scope of employment, the jury can decide whether the doctor was negligent without the doctor remaining as a named defendant.
It Is Easier to Blame a Hospital: Juries like doctors. They would often rather blame a faceless institution than put a verdict directly against an individual physician. This is not a rule of law. It is a trial consideration. If there is no legal or strategic reason to keep the doctor as a defendant, there may be an advantage to letting the jury focus on the hospital’s responsibility for the doctor’s conduct.

Maryland Law on Dismissing the Doctor

Maryland lawyers have to be careful about the distinction between dismissing a doctor and releasing a doctor.

The important Maryland case is Women First OB/GYN Associates, LLC v. Harris, 232 Md. App. 647 (2017). The plaintiff sued an OB/GYN and the doctor’s employer for medical malpractice. Later, the plaintiff dismissed the doctor with prejudice. No money changed hands. There was no settlement payment. There was no release. The doctor was simply taken out of the case.

The employer then made the argument you would expect it to make: if the doctor has been dismissed with prejudice, how can the plaintiff still pursue the employer for that doctor’s negligence?

We would have been terrified if this was our case and we would have bet the Maryland Appellate Court (then the Court of Special Appeals) would not buy it. But it did.

The court focused on what had actually happened, not just the words “with prejudice.” The doctor’s negligence had never been decided in her favor. Nobody had paid anything for her dismissal. The plaintiff had not signed a release giving up the underlying claim. The dismissal was, essentially, a way of removing the individual doctor from the caption while leaving the vicarious liability claim against the employer alive. So the court wisely chose not to live on a technicality.

We know a dismissal and a release can look similar from thirty thousand feet because in both situations the doctor may disappear from the lawsuit. Legally, though, they can do very different things. Maryland law has long recognized that actually releasing or substantively exonerating the agent may create a problem for a claim based entirely on the principal’s vicarious liability.

So when we draft a stipulation like the one below, the goal is not simply to write “Doctor dismissed” and move on. The goal is to make the parties’ intent unmistakable. The individual doctors are leaving the case. The plaintiff is not giving up the right to prove that those doctors were negligent. And the plaintiff is not giving up the right to hold the hospital responsible for that negligence under respondeat superior.

Maryland Rule 2-506 governs voluntary dismissals and allows all or part of a claim to be dismissed by stipulation signed by the parties to that claim. But this is one of those areas where the form can make a difference. A stipulation should fit the actual procedural posture of the case, not merely resemble something that worked in another lawsuit.

Example Stipulation of Dismissal

IN THE CIRCUIT COURT FOR BALTIMORE CITY

SHARON MOORE
Plaintiff,

JOHNS HOPKINS HOSPITAL, et al.
Defendants.

CASE NO.: 24-C-10-009077

Joint Stipulation Dismissing Individual Doctor Defendants

Sharon Moore, by her attorneys, and Defendants Johns Hopkins Hospital, Johns Hopkins Community Physicians, Inc., Dr. David Hunter, Dr. Beth O’Connor, and Judith Jones, by their attorneys, hereby stipulate and agree as follows:

That all of the Defendants hereby withdraw the “Defendants’ Motion to Dismiss for Improper Venue, or in the Alternative, Motion to Transfer Venue on Grounds of Improper Venue or Forum Non Conveniens” and agree that the case at bar shall remain in the Circuit Court for Baltimore City for litigation.
That Defendants Johns Hopkins Hospital and Johns Hopkins Community Physicians, Inc., agree and stipulate that all of the individual doctor defendants were their employees for the entire time that the Plaintiff was receiving medical care and treatment at their medical facilities as outlined in the Plaintiff’s Complaint, and were working within the scope of that employment during the time that they rendered medical care and treatment to the Plaintiff.
The Plaintiff will dismiss her medical malpractice complaint against the individual defendants only with prejudice and the individual defendants will not later be added as defendants. No consideration is being paid by or on behalf of the individual defendants in exchange for their dismissal, and this dismissal is not intended to constitute a release of the Plaintiff’s underlying claims based upon their alleged acts or omissions or an adjudication that the individual defendants were not negligent.
Defendants Johns Hopkins Hospital and Johns Hopkins Community Physicians, Inc., agree and stipulate that neither they nor any other Defendant shall in any way utilize the dismissal with prejudice of the individual defendants as a bar to the Plaintiff pursuing her claims against Johns Hopkins Hospital and Johns Hopkins Community Physicians, Inc.
Defendants Johns Hopkins Hospital and Johns Hopkins Community Physicians, Inc., agree and stipulate that the Plaintiff retains the right to pursue her claims against Johns Hopkins Hospital and Johns Hopkins Community Physicians, Inc., based upon the legal theories of agency, respondeat superior, and vicarious liability, based upon the allegations made against the individual defendants and the alleged acts and omissions of the individual defendants, notwithstanding the dismissal of the individual defendants with prejudice.
Defendants Johns Hopkins Hospital and Johns Hopkins Community Physicians, Inc., hereby forever waive any defense based upon the fact that Plaintiff has dismissed her claims against the individual defendants herein, including any contention that the dismissal extinguishes, releases, bars, or otherwise limits Plaintiff’s vicarious liability claims based upon the alleged negligence of those individual defendants.
Defendants Johns Hopkins Hospital and Johns Hopkins Community Physicians, Inc., will take all steps necessary to make the individual defendants available to be deposed by the Plaintiff and agree that these depositions will occur at the Plaintiff’s attorneys’ law office in Baltimore, Maryland. This will include accepting service of any subpoena that may be issued for the individual defendants to appear for their respective depositions. The individual defendants agree that Johns Hopkins Hospital and Johns Hopkins Community Physicians, Inc., have permission to accept service for any subpoena issued in the case at bar that directs them to appear for any deposition and trial by and through their counsel.
Johns Hopkins Hospital and Johns Hopkins Community Physicians, Inc., stipulate and agree that Plaintiff can use the depositions of the individual doctors for any purpose permitted under Maryland law and the Maryland Rules as if the individual defendants were still adverse parties to the litigation at bar. This includes explicitly reading into evidence at trial the deposition testimony of the individual doctors, provided that the testimony is otherwise admissible.
The individual defendants dismissed from the litigation at bar agree and stipulate that they will appear for any duly noted deposition and at trial if so subpoenaed.

Why the Language in the Stipulation Matters

The important point is that you do not want to confuse a procedural dismissal with a substantive release of the doctor’s negligence.

The plaintiff is not agreeing that the doctor did nothing wrong. The plaintiff is not settling the doctor’s negligence claim in exchange for money. The plaintiff is simply removing the doctor as a named defendant while the hospital agrees that the plaintiff may continue to prove the doctor’s negligence and pursue the hospital under agency, respondeat superior, and vicarious liability.

That is why the admissions and waivers in the stipulation are worth having even though Women First is favorable law for Maryland plaintiffs. You would much rather resolve these questions expressly before dismissing the doctor than spend part of your trial fighting over what everyone supposedly intended when the dismissal was filed.

Thoughts on Settlement Agreements

One thing is sure: defense counsel loves to draft settlement releases that provide protection they do not deserve. Most of it is harmless. Two things to keep a watch out for:

Confidentiality of settlement: They are not entitled to confidentiality unless it was negotiated as part of the settlement.
Indemnification language: Watch for language that requires your client to indemnify the doctor or hospital for claims that were never part of the bargain.

Do not confuse the dismissal stipulation discussed above with a settlement release. They are different documents doing different things.

Stipulation Releasing Doctors in Hospital Malpractice Lawsuit