author: KRAUSER, C.J.

text:
    133 A.3d 1198
    Jan CRYSTAL v. MIDATLANTIC CARDIOVASCULAR ASSOCIATES, P.A., et al.
    No. 1687,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    March 29, 2016.

      Adam M. Spence (Law Office of Spence & Associates PC, Towson, MD, and E. Pete Summerfield, Summerfield, Willen, Silverberg & Limsky, LLC, Baltimore, MD), on the brief, for Appellant.
    Andrew D. Levy (Kevin D. Docherty, Brown, Goldstein & Levy, LLP, Baltimore MD, and J. Michael Slonker, Gregory L. VanGeison, Anderson, Coe & King, LLP, Baltimore, MD, and Edward J. Longosz, II, Mark A. Johnston, Sarah Shyr, Eckert, Seamans, Cherin & Mellott, LLC, Washington, DC, and Mary Alane Downs, Steffany K. Bender, Morgan, Carlo, Downs & Everton PA, Hunt Valley, MD), all on the brief, for Appellee.
    Panel: KRAUSER, C.J., BERGER, and LEAHY, JJ.

       Arthur, Kevin, J. did not participate in the Court's decision to report this opinion pursuant to Md. Rule 8-605.1.

   KRAUSER, C.J.

Jan Crystal, appellant, filed a claim with the Health Care Alternative Dispute Resolution Office, against appellees: Midatlantic Cardiovascular Associates, P.A. (“Midatlantic”); St. Joseph Medical Center, Inc. (“SJMC”); and Mark G. Midei, M.D. (“Dr. Midei”), based upon the implantation of an allegedly unnecessary stent in Crystal’s left anterior descending coronary artery (which we shall, as the parties do, refer to as the “LAD.”) When arbitration was waived, Crystal filed a complaint in the Circuit Court for Baltimore County, alleging medical malpractice, fraud by intentional misrepresentation, and fraud by concealment. The claim of medical malpractice was alleged as to all three health care providers, but the claim of fraud by misrepresentation was brought against only Dr. Midei, and the claim of fraud by concealment was directed at only SJMC.

After discovery was concluded by the parties, the circuit court granted appellees’ motions for summary judgment, con-eluding that there was no evidence to support Crystal’s claim of fraud by intentional misrepresentation, against Dr. Midei, or his claim of fraud by concealment, against SJMC. It, then, as a consequence of having disposed of Crystal’s fraud claims, granted summary judgment as to his remaining medical malpractice claims against Midatlantic, SJMC, and Dr. Midei, as Crystal’s fraud claims, having been disposed of on summary judgment, could no longer be deemed to have tolled the statute of limitations, which had long since run on his medical malpractice claims.

From those rulings, Crystal noted this appeal, contending that the court had erred in granting appellees’ motions for summary judgment as to all of his claims, and thus his claims of fraud and medical malpractice should be resurrected by this Court. For the reasons set forth below, we shall affirm.

I.

Background

In October of 2004, after experiencing chest pain, shortness of breath, and a feeling of tightness in his chest, Crystal underwent a “cardiac catheterization,” a procedure used to evaluate and diagnose cardiovascular conditions. During that procedure, it was discovered that there was a “stenosis” — that is, an abnormal narrowing — of Crystal’s LAD. The level of stenosis in that artery had reached 95%. To address that condition, a stent was placed in Crystal’s LAD.

Yet, notwithstanding the successful completion of that procedure, Crystal continued to experience shortness of breath. Consequently, his cardiologist recommended that he undergo another cardiac catheterization. That second catheterization was to be performed by appellee, Dr. Midei, a cardiologist with appellee, Midatlantic.

Before undergoing this procedure, however, Crystal signed, on November 4, 2004, a “Cardiac Catheterization Laboratory Procedure Consent Form,” which authorized Dr. Midei “to perform one or more” of a number of medical procedures, including a “heart catheterization,” a “coronary angiography,” and a “stent implantation.” Specifically, it stated, in pertinent part:

I consent to and authorize Dr. Mark Midei and his/her assistants to perform one or more of the following procedures:

Heart catheterization and coronary angiography, possible coronary angioplasty-type procedures (angioplasty, atherectomy, stent placement ...), and possible peripheral angiography. Please read the explanations below.

Heart catheterization with coronary angiography is a diagnostic procedure to define the presence, nature, and extent of heart disease. The physician inserts a small tube or catheter into an artery and/or vein in the leg or arm and advances it to the heart. The physician will inject dye through the catheter, take pictures of the arteries or grafts to the heart, and measure pressures in the heart. The results of this test will help determine if medication, an angioplasty-type procedure, or bypass surgery is the best treatment.

Coronary or peripheral angioplasty-type procedures (angioplasty, atherectomy, stent placement) are therapeutic procedures to open blockages in coronary or peripheral arteries or bypass grafts. The physician will perform coronary or peripheral angiography, then advance a thin guidewire across the blockage and then select the most appropriate procedure(s) to open the blockage____ Stent implantation is a procedure where the physician inserts a metal stent (mesh-like tube) at the site of the blockage which is left in place to hold the artery open.

* * *

Notably, the form did not contain any requisite degree of blockage that would require or preclude the implantation of a stent, but instead left the decision, of whether to place a stent, to the medical judgment of Dr. Midei.

Notwithstanding Crystal’s pre-operative consent to the procedure, it was Crystal’s claim that Dr. Midei, though not required to do so, informed him, during the course of the procedure, but before the implantation of the stent, of the level of stenosis in his LAD. According to Crystal, Dr. Midei, before placing the stent, advised him, as he lay on the operating table, that the stenosis in question had reached 70% (though the laboratory report he later prepared suggested an even higher level of stenosis, that is, 80%) and that he would need a stent to avoid a complete blockage of the artery. Dr. Midei then placed another stent in Crystal’s LAD.

At his deposition, nearly ten years later, Crystal, in recalling the deliverance of that advisement by Dr. Midei, testified as follows:

[Counsel]: Prior to the beginning of the cardiac catheterization procedure that [Dr. Midei] performed on November 22, do you remember talking to him?

[Crystal]: Just in the lab.

[Counsel]: I understand. On that morning before he started the catheterization procedure, do you remember talking to Dr. Midei?

[Crystal]: No.

[Counsel]: Do you remember someone going over a consent form with you?

[Crystal]: I don’t recall.

[Counsel]: Do you know if you signed a consent form?

[Crystal]: I don’t recall. I am sure I had to, but I don’t recall.

[Counsel]: What do you remember Dr. Midei saying during the procedure, if anything?

[Crystal]: He pretty much started the same way that Dr. Brinker did. I’m going to do this. You’re going to feel that. And it wasn’t long into the procedure that he told me I had a 70 percent blockage in my LAD. Now those letters sounded pretty familiar to me.

[Counsel]: Okay you remember him saying anything else? [Crystal]: You would need this stented to keep it from blocking completely.

[Counsel]: Are you paraphrasing what you remember that he told you or are those Dr. Midei’s exact words?

[Crystal]: I can’t remember back 10 years. So I’m assuming. I’m paraphrasing.

Five years after the stent implantation at issue, in 2009, Crystal read a newspaper article suggesting that Dr. Midei had been performing “unnecessary” stent implantation procedures. That article led Crystal to contact an attorney. Two years later, in 2011, almost seven years after the stent implantation procedure had been performed by Dr. Midei, Crystal filed a claim, with the Health Care Alternative Dispute Resolution Office, against the three appellee health-care providers. Crystal filed, with that claim, a certificate of qualified expert, naming Herbert Fischer, M.D., as that expert, and Dr. Fischer’s report. In both the certificate and his report, Dr. Fischer opined that Dr. Midei had breached the standard of care applicable to stent implantation procedures by implanting a stent when there had been “insufficient evidence to justify” such a procedure. Arbitration was thereafter waived, and the case was transferred to the Baltimore County circuit court.

Summary Judgment Proceedings

In the Baltimore County circuit court, appellees subsequently moved for summary judgment, contending that Crystal had failed to generate a dispute of material fact as to his claims of fraud by intentional misrepresentation and fraud by concealment. And, because, in their view, there was no evidence of fraud, the five-year medical malpractice statute of limitations, which had long since run on Crystal’s medical malpractice claims, had not been tolled by those fraud claims and, therefore, those medical malpractice claims should be dismissed, by the court, as time-barred.

Crystal responded to appellees’ motions by asserting that there was a dispute of material fact as to, at least, his claim of fraud by intentional misrepresentation because there was evidence that Dr. Midei had “deliberately misled” Crystal to induce him to undergo the stent implantation procedure in question. That evidence, Crystal pointed out, was Dr. Fischer’s deposition testimony that, at the time Dr. Midei implanted the second stent, the level of arterial stenosis was “about a 30 percent stenosis at the maximum,” though, at the same deposition, he later increased that estimate of stenosis to 30-40%. And that testimony, noted Crystal, contradicted Dr. Midei’s statement that Crystal had a 70% stenosis in his artery, as well as Midei’s subsequent description of an 80% stenosis in his laboratory report. “A jury could readily conclude” from that “large discrepancy,” avowed Crystal, that Dr. Midei “knew at the time of the stent implantation that there was nowhere near” a 70% or 80% stenosis and that he “deliberately misled” Crystal by so stating and thereby inducing Crystal to undergo the stent implantation procedure.

Such evidence, Crystal further asserted, created a “jury question” as to whether Dr. Midei committed fraud, by misrepresenting the actual level of stenosis in Crystal’s LAD, which, if proved, would toll the statute of limitations as to his medical malpractice claim. Crystal then urged the court to deny summary judgment as to his claim of fraud by concealment, which was alleged solely as to SJMC, because the medical center was, he claimed, “[vicariously] liable for the fraudulent concealment acts of Dr. Midei.”

The circuit court, following a hearing on appellees’ motions, granted summary judgment, as to all three counts. In so doing, the court explained that, as to the claim of fraud by misrepresentation against Dr. Midei, it was not persuaded by Crystal’s contention that the “difference of opinion” between Dr. Fischer and Dr. Midei, regarding the level of stenosis in his LAD, constituted evidence that Dr. Midei had, knowingly or with reckless indifference, made a false statement to Crystal with respect to that level. It therefore granted summary judgment as to that count, because Crystal, in its view, had “failed to proffer evidence of a genuine issue for trial on: whether Dr. Midei knowingly made a false representation; whether he intended to defraud Mr. Crystal; and/or whether Mr. Crystal relied on misrepresentations by Dr. Midei in consenting to the procedure.”

The court also explained that it was granting summary judgment as to the claim against SJMC for fraud by concealment because: First, it was “not aware of any authority for the proposition that SJMC or any health care provider, generally, has a duty to disclose to patients prior instances of medical malpractice,” and, second, “even if [SJMC] had a duty to disclose this information, there is no evidence that [SJMC] had information to disclose at the time of Crystal’s procedure.” Then, given “the absence of sufficient evidence of fraud,” the court determined that the five-year statute of limitations period had run on Crystal’s medical malpractice claims, having not been tolled by fraud, and dismissed those claims as time-barred.

II.

Standard of Review

Maryland Rule 2-501 provides that summary judgment shall be entered “in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” In other words, the circuit court must first determine “whether there is a dispute as to a material fact sufficient to require the issue to be tried.” Frederick Rd., Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 93, 756 A.2d 963 (2000). If there is no such dispute and if the nonmoving party has “failed to make a sufficient showing on an essential element” of its claim, for which it has the burden of proof, summary judgment is then appropriate in favor of the movant. Cent. Truck Ctr., Inc. v. Cent. GMC, Inc., 194 Md.App. 375, 386, 4 A.3d 515 (2010) (internal citation and quotation marks omitted)

In assessing the propriety of a grant of summary judgment, we apply a de novo standard of review. River Walk Apartments LLC v. Twigg, 396 Md. 527, 541, 914 A.2d 770 (2007). In conducting that assessment, we consider the facts and all reasonable inferences that may be drawn from those facts, in a light most favorable to the nonmoving party. Frederick Rd., Ltd. P’ship, 360 Md. at 93-94, 756 A.2d 963. Our review is limited, however, solely to the grounds upon which the circuit court granted summary judgment. River Walk Apartments, 396 Md. at 541-42, 914 A.2d 770.

III.

Fraud By Intentional Misrepresentation

Crystal contends that the circuit court erred in granting summary judgment as to his claim of fraud by intentional misrepresentation against Dr. Midei. Specifically, he maintains that there was a genuine issue of material fact as to whether Dr. Midei had deliberately misstated, or had done so with reckless indifference, the degree of stenosis in Crystal’s LAD, so as to induce Crystal to agree to the stent implantation procedure that was ultimately performed. In support of that claim, he suggests that there was “too great a discrepancy” between Dr. Midei’s and Dr. Fischer’s opinions about the percentage of stenosis in Crystal’s LAD for Dr. Midei’s statement, that there was a 70% stenosis, to have been anything but an intentional misrepresentation of the level of stenosis to induce Crystal to undergo the stent implantation procedure at issue.

To prevail on a claim of fraud, a plaintiff must show, “by clear and convincing evidence,” the following elements, the second of which we have bolded as it is central to this appeal:

1. That the defendant made a false representation to the plaintiff;

2. That its falsity was either known to the defendant or that the representation was made with reckless indifference as to its truth;

3. That the misrepresentation was made for the purpose of defrauding the plaintiff;

4. That the plaintiff relied on the misrepresentation and had the right to rely on it; and

5. That the plaintiff suffered compensable injury resulting from the misrepresentation.

E.g. VF Corp. v. Wrexham Aviation Corp., 350 Md. 693, 703-04, 715 A.2d 188 (1998) (emphasis added).

It is, as noted, the second element (or the “knowledge element”) of fraud that is at issue here. Thus, the question before us is: Did Crystal present sufficient evidence to generate a genuine dispute of material fact as to whether Dr. Midei knew that the statement he made to Crystal was false or that Dr. Midei was “recklessly indifferent” with respect to the truthfulness of that statement. In addressing that question, we are guided by the principle that “[njegligence or misjudgment, however gross, does not satisfy the knowledge element” of fraud. VF Corp., 350 Md. at 704, 715 A.2d 188 (internal quotation marks and citation omitted).

Crystal’s claim of fraud by intentional misrepresentation rests entirely on the competing diagnoses of Dr. Midei, Crystal’s treating cardiologist, and Dr. Fischer, Crystal’s “qualified expert.” In both the certificate of qualified expert and the report, accompanying that certificate, which were filed with Crystal’s claim, Dr. Fischer opined that Dr. Midei had breached the standard of care by placing a stent “without reasonable evidence that [it] was medically necessary.” In reaching that conclusion, Dr. Fischer reviewed Crystal’s medical file “regarding the catheterization and stent placement by Dr. Midei,” including the angiogram for that procedure. He deponed that, in reviewing the angiogram, he did not “see anything that would even come close” to the percentage of stenosis Dr. Midei had recorded. According to Dr. Fischer, Crystal’s LAD had about a 30 to 40% stenosis, not the 70% indicated by Dr. Midei. “[Y]ou never treat coronary artery disease with stents,” Dr. Fischer declared, “unless there is severe stenosis.” But, at no time did he specify what level of stenosis constitutes “severe stenosis” or what a reasonable margin of error might be in reading an angiogram with the naked eye, the only available tool for making such an assessment at that time.

A “plaintiff obviously does not establish” fraud by merely showing that “objectively false representations about the diagnosis and treatment” were made. Geisz v. Greater Balt. Med. Ctr., 313 Md. 301, 330, 545 A.2d 658 (1988). Fraud, as noted, does not “encompass liability for negligent or grossly negligent representations.” Ellerin v. Fairfax Sav., F.S.B., 337 Md. 216, 238-39, 652 A.2d 1117 (1995). Similarly, the Court of Appeals has instructed that “the fraud exception” to the statute of limitations, upon which Crystal relies in support of his contention that the limitations on his medical malpractice claims had been tolled, “cannot be satisfied by evidence which demonstrates no more than negligence.” Geisz, 313 Md. at 328, 545 A.2d 658.

Crystal has provided no evidence that Dr. Midei knew his assessment of stenosis, whether it be 70 or 80%, was incorrect. The disparity between Dr. Fischer’s testimony and the statements made by Dr. Midei suggests, at most, that Dr. Midei may have been negligent, perhaps even grossly negligent, in his diagnosis. And, as observed earlier, “a difference of opinion concerning the applicable standard of care” is insufficient to establish fraud. Geisz, 313 Md. at 330, 545 A.2d 658.

Crystal further suggests that an inference of fraud can be drawn from the discrepancy between Dr. Midei’s statement during catheterization, when he stated there was a 70% steno-sis, and his laboratory report, which stated that the level of stenosis was 80%. The difference in the two evaluations by Dr. Midei was evidence, Crystal claims, that Dr. Midei knew that his assessment of 70% was false.

But there was no evidence that that discrepancy reflected anything more than a mistake made by Dr. Midei in recalling the level of stenosis shown by the angiogram, or a transcription or dictation error, or a misunderstanding by Crystal about what Dr. Midei had originally said, during the procedure, regarding the level of stenosis, or, perhaps, a lapse in memory when, during his deposition, Crystal “paraphrased” what Dr. Midei had said to him many years before. In any event, the mere difference between Dr. Midei’s statement to Crystal during the procedure and the number recorded in the report does not, without more, permit a reasonable inference to be drawn that Dr. Midei knew his assessment of 70% stenosis was too high. In fact, it may suggest that Dr. Midei believed the level of stenosis in Crystal’s LAD was at least 70 percent if not more.

Unable to show that Dr. Midei knew his assessment of 70% stenosis was false, Crystal’s only remaining option was to present evidence showing that Dr. Midei was recklessly indifferent to the truth of his assessment. In our view, there was no evidence that he was. The difference of opinion, as we explained, may have been the result of a mistake or of a misjudgment amounting to negligence or even gross negligence, but there was no evidence of fraud.

But, Crystal cites Geisz v. Greater Baltimore Med. Ctr., 313 Md. 301, 545 A.2d 658 (1988), for a contrary proposition. Steven Geisz had been diagnosed with “Hodgkin’s disease,” a form of cancer. Geisz, 313 Md. at 305, 545 A.2d 658. His physician, George Richards, M.D., directed that Geisz receive several courses of radiation and chemotherapy treatments. Id. at 309, 545 A.2d 658. Unfortunately, after receiving those treatments, Geisz succumbed to that disease. Id. at 304, 545 A.2d 658.

Nearly ten years after his death, Geisz’s former wife read a newspaper article, detailing medical malpractice actions that had been filed, by other patients of Dr. Richards, against him. Id. at 306, 545 A.2d 658. “As a result of her having read [this] newspaper article,” Geisz’s former wife brought a wrongful death action, on behalf of their son, against Dr. Richards and the Greater Baltimore Medical Center, alleging medical malpractice, for courses of treatment that were “improperly conceived and administered.” Id. at 304-07, 545 A.2d 658.

Although the limitations period, on its wrongful death claim, appeared to have run, the estate maintained that it had not because it had been tolled by fraud. Id. at 307-08, 545 A.2d 658. The fraud alleged by the estate was that Dr. Richards had misrepresented to Geisz and his former wife that “he had given [Geisz] every treatment available in the country, the best of treatments,” but for some reason Geisz had not responded to those remedial measures, when, in fact, the courses of treatment received by Geisz “from technicians acting at the direction of, and under the supervision of Dr. Richards, courses of treatment which the plaintiffs allege were improperly conceived and administered.” Id. at 306-11, 545 A.2d 658. This statement, Geisz’s estate claimed, “kept [the estate] in ignorance of the cause of action” that it may have had against Dr. Richards and the medical center. Id. at 307-OS, 545 A.2d 658.

The defendant doctor and the medical center then moved for summary judgment, contending that the claim was time-barred and that the statement at issue, made by Dr. Richards, did not amount to fraud. Id. at 308, 545 A.2d 658. In response, the estate, in an attempt to show that the statement was made fraudulently, presented the deposition testimony of Dr. Richards, from another malpractice case pending against him. Id. at 311-12, 545 A.2d 658. In that deposition, Dr. Richards made statements suggesting, by implication, that “portal films,” that he had requested, may not have been done in the course of Mr. Geisz’s treatment, which were necessary in determining whether the dispensed radiation had “reach[ed] into the.areas ... intended for radiation.” Id. at 312, 545 A.2d 658.

Geisz’s estate also presented reports, from its medical experts, stating that, in Geisz’s case, the “treatment plans, calculations of dosages, and portal films were not done.” Id. at 313, 545 A.2d 658. This evidence, the estate suggested, showed that Dr. Richards had no factual basis for his statement to Steven Geisz and his former wife, assuring them that he had given Geisz the best possible treatment — a statement the estate relied upon in contending that the statute of limitations had been tolled on their claims by fraud. Id. at 307-08, 545 A.2d 658.

After the circuit court granted summary judgment in favor of the defendants, the Court of Appeals reversed that judgment, holding that the estate’s evidence generated a “fact question” of “whether Dr. Richards had a basis for representing that the particular cancer in Geisz had been treated, but for some inexplicable reason had withstood treatment.” Id. at 332, 545 A.2d 658. The Court observed that the estate had presented evidence that it was “impossible for Dr. Richards to determine whether the desired treatment had actually been received,” despite his statements to Geisz that he had given him every available treatment. Id. at 333-34, 545 A.2d 658. That evidence, if believed, “could support,” declared the Court, “a finding of reckless indifference to the truth” and thus a claim of fraud. Id. at 334, 545 A.2d 658.

But Geisz is clearly distinguishable from the instant case. Unlike what occurred in Geisz, Dr. Midei did not tell Crystal that he had a 70% stenosis in his LAD without the appropriate test, nor did Dr. Midei make that statement while foregoing other necessary tests to establish the level of stenosis. Instead, Crystal’s claim of reckless indifference rests entirely on the supposition that Dr. Midei was wrong — perhaps very wrong — in his assessment of the level of stenosis. But, as stated previously, evidence of negligence, “however gross,” does not rise to the level of reckless indifference necessary to establish fraud. VF Corp., 350 Md. at 704, 715 A.2d 188 (internal citations omitted).

Moreover, it is worth noting several ways in which Dr. Fischer’s testimony clearly stops short of crossing the threshold from negligence into gross negligence, let alone fraud. First, Dr. Fischer did not explain what the boundaries of stent-requiring stenosis are, that is, at what percentage of blockage should a doctor begin to consider placing a stent. Thus, while Dr. Fischer did opine that Dr. Midei’s assessment of the stenosis fell below the standard of care, it is unclear exactly how unreasonable that assessment was. Second, although Dr. Fischer stated that “you never treat coronary artery disease with stents unless there is severe stenosis,” he never indicated what minimum percentage of blockage constitutes “severe” stenosis. Third, there is presumably a margin of error involved when a doctor estimates the percentage of stenosis in an artery from an angiogram, particularly where that evaluation is performed, as was the case here, by the naked eye. But, Dr. Fischer did not explain what that typical margin of error would be. Fourth and finally, Dr. Fischer offered no opinion as to Crystal’s prior medical history and whether his prior instances of severe stenosis would lower the level at which a doctor would recommend the implantation of a stent.

In sum, although the inference could be drawn, from the evidence presented below that negligence had occurred, that has no bearing on Crystal’s fraud claim. Fraud requires knowledge of the falseness of the statement, or at least a reckless indifference as to the truthfulness of the statement made by the defendant, whereas negligence does not. And, •without evidence that Dr. Midei knowingly misstated the percentage of stenosis in Crystal’s LAD, or that he was recklessly indifferent to what that percentage of stenosis was, Crystal’s claim of fraud by misrepresentation could not withstand summary judgment and thus the circuit court did not err in granting that judgment.

IV.

Fraud By Concealment

We turn now to Crystal’s contention that the circuit court erred in granting summary judgment, in favor of SJMC, on his claim that the medical center had committed fraudulent concealment by not disclosing Dr. Midei’s purported history of negligence and fraud. In addressing this issue, we begin with a brief description of Crystal’s inconsistent, and somewhat confusing, assertion of that claim. Crystal alleged, in his complaint, that SJMC was liable for fraud by concealment because, prior to his procedure in 2004, the medical center had “actual knowledge that Dr. Midei was negligently and fraudulently advising his patients to undergo unnecessary stent procedures.” Then, later in his complaint, Crystal stated that SJMC had a “duty to disclose” such information to Crystal, but failed to do so. After discovery, however, Crystal, in his response to appellees’ motions for summary judgment, offered a different theory of liability, stating that “SJMC is liable for the fraudulent concealment acts of Dr. Midei.”

The circuit court properly granted summary judgment as to the claim of fraud by concealment. In so doing, the court understandably chose to address only the theory of liability in Crystal’s complaint, because, as that court put it, it was “not aware of any authority for the proposition that SJMC or any health care provider, generally, has a duty to disclose to patients prior instances of medical malpractice.” It then added that “even if [SJMC] had a duty to disclose this information, there is no evidence that [SJMC] had information to disclose at the time of Crystal’s procedure.”

On appeal, Crystal concedes, in his brief, that “the court properly found that there was no evidence that SJMC was on notice of Dr. Midei’s pattern of negligence or fraud prior to [his] surgery” and that the court was correct in stating that “there is no evidence that [SJMC] engaged in any misconduct, should have known about misconduct, or should have investigated any misconduct at the time of [the 2004 procedure].” Nevertheless, Crystal now contends, as he did in his response to the motion for summary judgment but not in his complaint, that the circuit court erred in granting of summary judgment as to the claim of fraud by concealment because “the asserted basis of liability by SJMC under [fraud by concealment] was the vicarious liability of SJMC for its employee, Dr. Midei,— not SJMC’s own failure to act.”

We decline to address Crystal’s suggestion, on appeal, that SJMC was vicariously liable for Dr. Midei, as that theory of liability contradicts what Crystal stated in his complaint. Instead, we review the circuit court’s grant of summary judgment based upon the grounds relied upon in the record. To prevail on a claim of fraudulent concealment, a plaintiff must show that

(I) the defendant owed a duty to the plaintiff to disclose a material fact; (2) the defendant failed to disclose that fact; (3) the defendant intended to defraud or deceive the plaintiff; (4) the plaintiff took action in justifiable reliance on the concealment; and (5) the plaintiff suffered damages as a result of the defendant’s concealment.

Lloyd v. Gen. Motors Corp., 397 Md. 108, 138, 916 A.2d 257 (2007) (internal citations omitted). “A fraudulent concealment claim is caused, in part,” the Court of Appeals has said, “by the intentional failure to warn.” Lloyd, 397 Md. at 138-39, 916 A.2d 257. It is clear that the circuit court properly granted summary judgment because there was no evidence, as even Crystal concedes, that SJMC knew or should have known about Dr. Midei’s alleged prior misconduct.

V.

Medical Malpractice

Finally, we turn to Crystal’s remaining contention that the circuit court erred in granting summary judgment as to his medical malpractice claims. Although, Crystal concedes that he did not file his complaint within the required five-year statute of limitations period, he believes that his claim, contrary to the circuit court’s finding, was not time-barred because it was tolled by a showing of fraud under § 5-203, of the Courts and Judicial Proceedings Article of the Maryland Code.

That tolling provision provides: “If the knowledge of a cause of action is kept from a party by the fraud of an adverse party, the cause of action shall be deemed to accrue at the time when the party discovered, or by the exercise of ordinary diligence should have discovered the fraud.” Md.Code Ann., Cts. and Jud. Proc. § 5-203. The alleged fraud, Crystal maintains, was Dr. Midei’s purported misrepresentation, during the procedure, about the 70% level of stenosis in Crystal’s LAD. But, as previously discussed, Crystal did not present any evidence that Dr. Midei made what could be found to be a fraudulent statement to induce the stent implantation at issue. Therefore, without any evidence of fraud that would toll the statute of limitations, the circuit court was impelled to find, as it did, that Crystal’s remaining medical malpractice claims were time-barred.

JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . Initially, Crystal's complaint alleged six claims. The first three— medical malpractice (count I, against Midatlantic, SJMC, and Dr. Midei), intentional misrepresentation (count II, against Dr. Midei), and fraudulent concealment (count III, against SJMC) — are the subject of this appeal, as the circuit court granted summary judgment, on all three of these claims, in favor of appellees. The three other claims — negligent hiring and retention (count IV, against Midatlantic), negligent supervision (count V, against Midatlantic), and loss of consortium (count VI, against Midatlantic, SJMC, and Dr. Midei) — were dismissed by the court, without prejudice, following the hearing on appellees’ motions for summary judgment, and are not relevant to this appeal.

      . A cardiac catheter is a catheter "that can be passed into the heart through a vein or artery” to, among other functions, “inject contrast media.” Stedman's Medical Dictionary 327 (28th ed. 2006). The procedure is used "mainly in the diagnosis and evaluation of congenital, rheumatic, and coronary artery lesions and to evaluate systolic and diastolic cardiac function.” Id.

      . Stenosis is a "stricture of any canal or orifice.” Stedman's Medical Dictionary 1832 (28th ed. 2006).

      . Pursuant to an agreement between Midatlantic and SJMC, Dr. Midei served as the director of SJMC’s cardiac catheterization "lab.”

      . This consent form was signed, by Crystal, prior to the medical procedure in question, on November 4, 2004. Another consent form, not relevant to this appeal, was signed on the day of the procedure, November 22, 2004.

      . During his deposition, Dr. Fischer opined that there was about a 30% stenosis of Crystal’s LAD. Later in that deposition, however, Dr. Fischer drew a diagram showing the area of the stenosis shown on the angiogram. In that diagram he wrote his estimate of the stenosis as "20-(30-40% max)."

      . In making that request, Crystal abandoned the allegation that he originally made in his complaint, where he asserted that SJMC "had a duty to disclose” to Crystal, Dr. Midei’s purported “history of negligently and fraudulently advising patients to undergo unnecessary stent procedures and/or negligently and fraudulently placing stents in patients without proper consent.”

      . Steven Geisz "had obtained a divorce” from his former wife, Elaine Geisz, a few months before his death. Id. at 305, 545 A.2d 658.

      . The issue of "interreader variability” was raised at the hearing that was held on the motions for summary judgment. "Interreader variability,” as explained by the circuit court, assumes that different experts "will have a variability in their reading of the stenosis by up to 20 percent,” such that one expert reviewing an angiogram could see a stenosis of 60% while another expert reviewing the same angiogram could see a stenosis of 80%. For the purpose of the motions for summary judgment, Crystal refused to concede "that there [was] a 20 percent interreader variability” in this case, but he did not dispute that "interreader variability” is always a factor in such matters.

      . Md.Code Ann., Cts. and Jud. Proc. § 5-109 states, in relevant part, that an "action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01 of this article, shall be filed within the earlier of: (1) Five years of the time the injury was committed ...”


source: Caselaw Access Project

license: Public Domain

text:
    133 A.3d 1209
    PRINCE GEORGE’S COUNTY, Maryland, et al. v. Frederick MINOR.
    No. 1871,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    March 29, 2016.

      Dawn D. Barnett (William A. Snoddy, M. Andree Green, Co. Atty., on the brief), Upper Marlboro, MD, for Appellant.
    Kenneth G. Macleay (John Hall Law Group, LLC, on the brief), Millersville, MD, for Appellee.
    Panel: KEHOE, LEAHY, and JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.
   JAMES A. KENNEY, III (Retired, Specially Assigned), J.

Appellant, Prince George’s County (“the County”), appeals the decision of the Circuit Court for Charles County that reversed the decision of the Worker’s Compensation Commission (“the Commission”) regarding the payment of attorney’s fees to the attorney for appellee Frederick Minor (“Mr. Minor.”).

The County presents a single question for our review:

Whether the circuit court erred when it determined that the County is responsible for payment of Mr. Minor’s attorney’s fees?

For the reasons that follow, we shall reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On September 3, 2008, Mr. Minor, a deputy sheriff with the Prince George’s County Police Department, filed a claim for workers’ compensation stemming from an injury he sustained when his right middle-finger became caught in his canine partner’s collar and twisted sideways. The Commission, on October 15, 2008, found that he “sustained an accidental injury ... arising out of and in the course of employment on 7/08/2008 and that the average weekly wage was $1,500.00 and that the nature and extent of the disability sustained, if any, [could not be] determined at [that] time.” A hearing on the nature and extent of disability was held, and the Commission, on December 8, 2009, entered the following award:

Disability leave in lieu of temporary total disability from November 7, 2008 to November 28, 2008 inclusive; based on an average weekly wage of $1,500.00 for an accidental injury sustained on July 8, 2008. PERMANENT PARTIAL DISABILITY: Resulting in 20% loss of use of the right hand, due to the accident of July 8, 2008; at the rate of $293.00, payable weekly, beginning November 29, 2008 for a period of 50 weeks.

In the award, the Commission noted that “No Claimant’s Consent to Pay Attorney Fee and Doctor Fees [was] Submitted.”

Mr. Minor’s counsel wrote the Commission on December 7, 2009, and “attached Claimant’s Consent to Pay Attorney Fee and Doctor Fee which was mistakenly not turned in at the time of the hearing.” The consent form, signed by Mr. Minor on December 8, 2009, certified that counsel had “explained to [him] the amounts allowable by the Commission as counsel fee under the Schedule of Fees and [he] consented] to the Award of a Fee to [his] attorney in accordance with the Commission’s Fee Schedule.” Both the County’s counsel, Antonia St. John, and the senior claims specialist for the County’s third party claim administrator, Melissa Casselman, were copied on the letter, but neither acknowledged receiving it. The Commission docketed the letter and accompanying consent form on December 9, 2009.

On December 15, 2009, Ms. Casselman, emailed Mr. Minor’s counsel’s office regarding the attorney’s fees: “I have received the Award Order on Fred Minor. What are the fees so I can deduct them?” When there was no response to the email inquiry, the County, on December 22, 2009, wrote a check for $14,650.00 (the full amount of the award) made payable to “Frederick Minor C/O John Hall, Esquire” and mailed it to Mr. Minor’s attorney’s office. Counsel delivered the check to Mr. Minor, who cashed or deposited it on January 6, 2010.

On January 11, 2010, the Commission rescinded its December 8, 2009 compensation award and entered a new award that included Mr. Minor’s consent to pay counsel “in the amount of $2,930.00, plus reimbursement of expenses in the amount of $24.46 [and medical expenses] in the amount of $410.85.”

On May 23, 2013, Mr. Minor’s counsel filed issues with the Commission for the County’s “non compliance of award dated 1/11/10 in which the atty and doctor fees have not been paid to the respective parties.” A hearing was held on September 13, 2013, and, on September 20, 2013, the Commission issued its order that:

the [appellant], Prince George’s County Maryland, is not responsible for the payment of attorney’s fees. The fee is approved and is payable by [Mr. Minor]. The fee may be collected from [Mr. Minor] or shall constitute a lien against the payment of any future benefits to [him].

On October 15, 2013, Mr. Minor filed for judicial review of the order.

A hearing was held in the circuit court on June 6, 2014. Mr. Minor’s counsel argued that “by issuing [the] lump sum check to [Mr. Minor, the County] created a situation where they overpaid [him]. The[ County’s] remedy is that should [he] come back for additional benefits in the future [it] may have a credit for an overpayment.” But, according to counsel, the County was not relieved of the obligation to pay any attorney’s fees awarded in the case. Mr. Minor’s counsel further argued that the Commission order stating that fees may be collected from Mr. Minor is a violation of workers’ compensation law, and requested that the circuit court vacate the September 2013 Commission order.

The County responded that the law requires that any fee shall be paid from an award of compensation in the manner stated by the Commission, and in this case, no fee was provided for in the initial award because no fee consent form was filed. Moreover, if the County had held payment and did not submit payment to Mr. Minor within fifteen days of the award, it would have been subject to a penalty. According to the County, it did not receive a copy of counsel’s December 7, 2009 letter, and Mr. Minor’s Counsel did not respond to Ms. Casselman’s December 15 email, and therefore, the Commission order should be affirmed. To do otherwise, it asserted, would impose a burden on the County not provided for in existing law. At the conclusion of the hearing, the circuit court, commenting that it was “obvious that steps could have been taken on either side to avoid this problem,” took the case under advisement.

On September 16, 2014, the circuit court filed an “Opinion and Order” finding that “the Commission’s September 20, 2013 order placing responsibility on Mr. Minor was an incorrect construction of the law and facts” and that the County is “required to pay $2,930.00” to Mr. Minor’s counsel:

The record reflects that the County and its agents should have known that a fee petition was filed with the Commission on December 9, 2009 and that the Commission’s approval of the fee was pending. First, the December 7, 2009 letter and attached fee petition from Counsel for Mr. Minor was copied to the County’s attorney and Ms. Casselman. This letter put the County and Ms. Casselman on notice of the fee petition three weeks before the check was issued. Second, the fee petition was docketed the day after the First Award was issued, and the County and Ms. Casselman easily could have checked the Commission’s dockets for any updates. Third, Ms. Casselman’s email indicates her knowledge that the issue of counsel fees was still outstanding. While Counsel for Mr. Minor concedes that there was some communication between Ms. Casselman and counsel for Mr. Minor’s office, Ms. Casselman, as the County’s agent, should have acted more diligently by following up with Counsel for Mr. Minor, checking to see if anything new was docketed with the Commission, directly inquiring of the Commission to determine the requested amount of attorney’s fees, or making the check payable to both Mr. Minor and Counsel for Mr. Minor. Instead, Ms. Casselman took no further action in the seven days before payment was due. As the individual responsible for processing Mr. Minor’s compensation award, Ms. Casselman was responsible for ensuring she had all the necessary information to make a proper payment, and the information was readily available from the Commission’s public records.

Notwithstanding the fact that 20% of the award was not reserved in escrow, on January 11, 2010, a lien attached to the Revised Award approving attorney’s fees. The revised award was notice to the County to reserve the $2,930.00 fee in an escrow account. Although the County paid Mr. Minor in full under the First Award, the Commission expressly rescinded the First Award and the County has not been discharged from its liability under the revised award....

Furthermore, the Court accepts the argument by Counsel for appellee that an attorney cannot collect legal fees directly from a claimant in a worker’s compensation case. The Commission’s attorney fee approval system is such that an attorney cannot collect any legal fees unless approved by the Commission....

Given these policies and considerations and the principles [espoused in the relevant case law], the County is responsible for paying attorney’s fees in the event of an overpayment to the claimant.

(Internal citations and footnotes omitted). On October 14, 2014, appellant filed this appeal.

Standard of Review

A party can petition for judicial review of a Commission decision pursuant to Md.Code (1991, 2008 RepLVol.), § 9-737 of the Labor and Employment Article (“L.E. § 9-737”). In that review, “the decision[ ] of the Commission ([is]) entitled to [a presumption of] prima facie correctness[,]” Frank v. Balt. Cnty., 284 Md. 655, 658, 399 A.2d 250 (1979) (quoting Md. Bureau of Mines v. Powers, 258 Md. 379, 382, 265 A.2d 860 (1970)), but a court “may reverse a commission ruling only upon a finding that its action was based upon an erroneous construction of the law or facts.” Frank, 284 Md. at 658, 399 A.2d 250. In addition, “[Reviewing courts should give special deference to an agency’s interpretation of its own regulations because the agency is best able to discern its intent in promulgating those regulations.” Brunson v. Univ. of Md. Med. Sys. Corp., 221 Md.App. 583, 591, 110 A.3d 713 (2015) (alteration in original) (citing Kim v. Md. State Bd. of Physicians, 196 Md.App. 362, 372, 9 A.3d 534 (2010)).

Discussion

The County relies on its compliance “with the Dec. 2009 Award as ordered,” and argues that “no lien attached to the Dec. 2009 Award because no fee was approved [by the Commission] at that time,” and, in the absence of an approved fee, it was not required to take steps “in furtherance of securing or paying attorney fees.” It takes issue with the circuit court’s statement that it “should have expected [that] a fee petition ... would be filed and approved,” and argues that the circuit court’s decision was inconsistent with the Code of Maryland Regulations, which places an employer/insurer on notice of attorney’s fees by a Commission award. In its view, it “reached out beyond its obligation to [Mr. Minor]’s attorney in an attempt to put him on notice of the fee issue,” and the Commission correctly found that the “last clear chance” to correct any oversight rested with Mr. Minor and his counsel.

Mr. Minor responds that the County “essentially made an over payment” by writing a check made payable to Mr. Minor without reserving the appropriate attorney’s fees, and that an “over payment of worker’s compensation benefits can not be recouped from the claimant.” Mr. Minor relies heavily on the reasoning of the circuit court in the discussion section of that court’s “Opinion and Order.”

A brief overview of the relevant workers’ compensation law will inform our discussion. L.E. § 9-731 states:

(a)(1) Unless approved by the Commission, a person may not charge or collect a fee for:

(1) legal services in connection with a claim under this title;

(ii) medical services, supplies, or treatment provided under Subtitle 6, Part IX of this title; or

(iii) funeral expenses under Subtitle 6, Part XIII of this title.

(2) When the Commission approves a fee, the fee is a lien on the compensation awarded.

(3) Notwithstanding paragraph (2) of this subsection, a fee shall be paid from an award of compensation only in the manner set by the Commission.

(Emphasis added).

This provision has a twofold purpose: one is to protect attorneys by imposing a statutory lien on a portion of any compensation award; the other is to protect injured workers by limiting the amount of allowable attorney’s fees so that awards will not be exhausted by excessive fees. Feissner v. Prince George’s Cnty., 282 Md. 413, 418, 384 A.2d 742 (1978); Chanticleer Skyline Room, Inc. v. Greer, 271 Md. 693, 699-700, 319 A.2d 802 (1974). “To balance the need to protect claimants from excessive legal fees against the need of workers to retain competent counsel, the legislature delegated to the Commission, an administrative agency with special expertise in worker’s compensation law, the authority over attorney’s fees in worker’s compensation cases, including the power to promulgate rules governing such fees.” Brunson, 221 Md.App. at 592-93, 110 A.3d 713. To that end, the Commission has adopted the following regulation:

A. Request for Fee Not in Excess of Schedule.

(1) An attorney seeking approval of an attorney’s fee that does not exceed the maximum amount set forth in Regulation .03 of this chapter, may request approval of the fee by filing the Claimant’s Consent to Pay Attorney and Doctor Fee form.

(2) A completed Claimant’s Consent to Pay Attorney and Doctor Fee form shall:

(a) Be signed by the claimant;

(b) Include the amount of any medical evaluation fee requested to be approved;

(c) Include any amount of costs advanced by claimant’s attorney for which the attorney is seeking payment; and

(d) Include any appeal fee requested under Regulation .03B(9) of this chapter.

(3) An attorney shall substantiate a request for medical evaluation fee, costs or a fee under Regulation .03B(9) of this chapter by:

(a) Submitting medical bills, receipts, or other evidence of costs; ...

(5) An award by the Commission approving an attorney’s fee under this regulation shall be notice to the party responsible for payment to reserve in escrow the amount of fee approved.

COMAR 14.09.04.02 (emphasis added).

The Commission’s control over the amount of fees payable and when attorney’s fees are paid is plenary. See Greer, 271 Md. 693, 319 A.2d 802. For example, COMAR 14.09.04.03 provides formulas for calculating the maximum allowable attorney’s fees in a particular case, and several statutes determine when an award should be paid, and impose penalties on employers/insurers for late payments. See L.E. § 9-727 (“The employer or its insurer shall begin paying compensation to the covered employee within 15 days after the later of the date: (1) an award is made; or (2) payment of an award is due.”); L.E. § 9-728 (“If the Commission finds that an employer or its insurer has failed, without good cause, to begin paying an award within 15 days after the later of the date that the award is issued or the date that payment of the award is due, the Commission shall assess against the employer or its insurer a fine not exceeding 20% of the amount of the payment.”).

Prior to the late 1980’s, there was a two-step process in regard to requesting attorney’s fees in cases that went to a hearing before the Commission. Theodore B. Cornblatt et al., Workmen’s Compensation Manual 63 (1985 Revised Ed. Cum. Supp.1987). The first step was the Commission’s compensation award; the second, which followed the award, was the claimant’s attorney’s “petition for fee and [its submission] to the Commission for approval.” Id. At that time, the “filing of a petition for a fee” was notice to the employer and insurer to reserve in escrow the amount requested in the fee petition until the Commission approved the fee. See COMAR 14.09.01.21.F (1983); Volume 9, Issue 26 of the Md. Register at 2593 (Dec. 23, 1982) (adopted without change in Volume 10, Issue 12 of the Md. Register at 1073 (June 10, 1983)).

Later, however, the Commission initiated a new procedure to streamline the fee approval process. Compare Theodore B. Cornblatt et al, Workmen’s Compensation Manual 56-57 (1981 with Supp. 1982-83), with Theodore B. Cornblatt et al., Workmen’s Compensation Manual 63 (1985 Revised Ed. with Cum.Supp. 1987). Rather than filing a petition for fees after the award of compensation, the claimant’s attorney submitted a “consent to pay attorney fee and doctor fees” (signed by the claimant) at the hearing, and the Commission would then incorporate the approved fees directly into the compensation award. Theodore B. Cornblatt et al, Workers’ Compensation Manual 97-98 (5th Ed.1988). The regulations were amended to reflect the change in procedure by stating that “[a]n award by the Commission approving an attorney’s fee under this regulation shall be notice to the party responsible for payment to reserve in escrow the amount of the fee approved.” See COMAR 14.09.01.24.A.(4) (1991); Volume 18, Issue 3 of the Md. Register at 325-26 (Feb. 8,1982) (adopted without change in Volume 18, Issue 11 of the Md. Register at 1189 (May 31, 1991)). As a result of this change, the employer/insurer had no obligation to withhold an amount for fees when no consent form was submitted. Theodore B. Cornblatt et al., Workers’ Compensation Manual 2-16 (7th Ed. with 1995 Supp.). The current regulations contain the same provision, see COMAR 14.09.04.02, and, as Mr. Minor’s counsel acknowledges, consent forms are ordinarily submitted at the Commission hearing.

As these procedures and the relevant law and regulations make clear, a claim for fees by an attorney representing a workers’ compensation claimant is not a claim against either the Commission or the employer/insurer. See Feissner, 282 Md. at 418-19, 384 A.2d 742. Instead, “the money to be paid the attorney remains part of the fund to which the employee is entitled as compensation,” and, “the payment of legal fees ... remains at all times the personal responsibility of the claimant.” Id. In other words, employers/insurers “are obligated to pay an approved attorney’s fee only out of compensation awarded to the claimant,” when there is an attached lien for such fees, and not “out of their own funds, unless it be for failure to respect a lien lawfully attached.” Feissner v. Prince George’s Cnty., 37 Md.App. 124, 135, 377 A.2d 1185 (1977).

For whatever reason, Mr. Minor’s counsel failed to file a consent form at the hearing before the Commission, and no award for attorney’s fees was included in the Commission’s first award. Therefore, no lien attached to the fund established by the award. See L.E. § 9-731 (“When the Commission approves a fee, the fee is a lien on the compensation awarded.”). It follows that the County, prior to disbursing the ordered award to Mr. Minor, was not, as a matter of law, on notice to reserve in escrow a portion of the award because there was no approved fee. See COMAR 14.09.04.02.A.(5) (“An award by the Commission approving an attorney’s fee under this regulation shall be notice to the party responsible for payment to reserve in escrow the amount of fee approved.”). No fee was approved until January 11, 2010. The County, however, was obligated to pay the compensation award in the compensation order within fifteen days of the date that it was issued, i.e., December 8, 2009. See L.E. § 9-727. To be sure, Ms. Casselman inquired as to attorney’s fees prior to paying the award by emailing someone in the office of Mr. Minor’s counsel. But, even if her email indicated her knowledge that a consent to fee form had been filed, that effort exceeded any obligation imposed by the statute or the regulations. Receiving no response from counsel, the County paid the award to Mr. Minor to meet the fifteen day deadline imposed by the statute and to avoid a possible penalty.

It was not until January 11, 2010, when the Commission passed its second award approving the fee request, that a lien could attach to the compensation award. See L.E. § 9-731(a)(1)®, (a)(2). Only then could there have been “an interception of the money in the hands of the insurer” that would bar payment to the claimant of a portion of the compensation award. Hoffman v. Liberty Mut. Ins. Co., 232 Md. 51, 55, 191 A.2d 575 (1963). Simply put, when the fee was approved on January 11, 2010, there was no “money in the hands of the insurer,” no fund left to which a lien could attach, and the entire compensation award had already been paid to Mr. Minor in accordance with the first award.

This case is factually different than Hoffman and Staley v. Bd. Of Educ. of Washington Cnty., 308 Md. 42, 517 A.2d 349 (1986), on which both Mr. Minor and the circuit court relied. In Hoffman, the question before the Court was “whether an insurance carrier may defeat the statutory lien of an attorney for his fee by applying funds held in escrow, pursuant to an order of the Workmen’s Compensation Commission, to satisfy an overpayment made to a claimant.” 232 Md. at 52, 191 A.2d 575. The Court of Appeals concluded that it could not because “[t]he lien of the fee attached at the time of the Commission’s original order [approving the attorney’s fee], and, as stated above, the only effect of the new modified award and order was to change the amount of the fee.” Id. at 56, 191 A.2d 575. In other words, the lien remained in effect, and the employer/insurer was deemed to be holding the amount of the fee in escrow. Id. at 56-57, 191 A.2d 575. Therefore, the carrier could not claim the money specifically set aside for fees to satisfy its overpayment to the claimant. Id.

In Staley, the issue again was “whether the [employer/insurer was required to] pay ... legal fees to the claimant’s attorney even though the amount already paid to the claimant exceeded the total sum due her under the modified award.” Staley, 308 Md. at 45, 517 A.2d 349. Ms. Staley was injured in the course and scope of her employment, and the Commission ordered the employer/insurer to pay disability benefits. Id. at 44, 517 A.2d 349. The employer/insurer appealed, but continued to pay her benefits during the pendency of the appeal. Before the appeal was decided, her attorney filed a fee petition with the Commission in accordance with the prevailing practice at the time. Id. at 44-45, 517 A.2d 349. The petition was approved. Id. at 45, 517 A.2d 349. When the disability award was subsequently reduced, claimant’s attorney filed a revised petition for attorney’s fees, which the Commission also approved. Id. Both orders specified that the legal fees were to be paid from the final weeks of compensation due the claimant. Id. The employer/insurer refused to pay counsel claiming that there was no fund to which the attorney’s lien could attach because they “were to accumulate funds for the escrow account only from the final weeks of compensation due the claimant.” Id. at 50, 517 A.2d 349. The Court of Appeals rejected that argument and reiterated that the “lien attached to the funds held in escrow when the Commission issued its initial fee order. The insurer was compelled at all times to keep in the escrow account an amount equal to the ultimate fee. The appeal did not affect the existence of either the lien or the funds in the account.” Id.

In both Hoffman and Staley, there was an established lien on attorney’s fees in effect when the revised awards were issued. Here, the award funds were paid out to the claimant prior to the lien being established.

Unlike some other states, Maryland “does not treat [workers’ compensation] attorney’s fees as an ‘add-on’ or ‘double’ benefit which the employer must pay injured employees in addition to the compensation award itself.” Feissner, 282 Md. at 418, 384 A.2d 742. The Court of Appeals explained:

[T]he lien attaches when the fee is approved by the Commission, but the money to be paid the attorney remains part of the fund to which the employee is entitled as compensation. Liability for payment of counsel fees continues to rest with the employee. Since the employer remains obligated to pay the compensation award from which the fee is to be paid, he may, in part, fulfill his responsibility to the claimant by paying the employee’s debt to the attorney. The statuto't'y lien merely alters the manner in which the employer discharges his liability for the compensation award.

Id. at 419, 384 A.2d 742 (emphasis added).

We are mindful that the purpose of the lien provided in L.E. § 9-731 and COMAR 14.09.04.02 is the “protection of attorneys who represent claimants in Workmen’s Compensation cases.” Staley, 308 Md. at 48, 517 A.2d 349. But, the statute and regulations will only protect those attorneys who protect themselves. In this case, that purpose would have been served if the attorney had timely filed a petition for fees or even, perhaps, if there had been a timely response to Ms. Casselman’s inquiry. The circuit court observed that the County could have avoided this situation by “checking to see if anything new was docketed with the Commission, directly inquiring of the Commission to determine the requested amount of attorney’s fees, or making the check payable to both Mr. Minor and Counsel for Mr. Minor.” But, checking the docket would not have revealed an approved fee until January 11, 2010, when there was no fund to which a lien could have attached. And, we see nothing in the law that imposes on the County any further obligation to protect an attorney’s fees in the absence of an established lien.

That does not mean, however, that counsel is not entitled or can never be paid for his services. The Commission stated in its September 18, 2013 order, the fee is “payable by [Mr. Minor]” and “may be collected from [Mr. Minor] or shall constitute a lien against the payment of any future benefits to [him].” See also Greer, 271 Md. at 701, 319 A.2d 802. We agree with the Commission and shall reverse the judgment of the circuit court.

JUDGMENT REVERSED. COSTS TO BE PAID BY APPELLEE.

      . The email was addressed to "Kathleen McDonnough”, but the record does not indicate her role with Mr. Minor's attorney’s office.

      . COMAR 14.09.04.03 provides that the "Commission shall approve attorney's fees in accordance with the schedule of fees established by the Commission and set forth in § B of this regulation.”

      . COMAR 14.09.01.21 F. stated:

        As Lien. The filing of a petition for a fee with the Commission and services of a copy on the employer and insurer, self-insurer, or the State Accident Fund, as the case may be, shall be notice to the employer and insurer, self-insurer, or the State Accident Fund, to reserve in escrow the amount of the fee requested in the petition until a fee is approved by the Commission.

      . COMAR 14.09.01.24.A.(4) stated:
      An award by the Commission approving an attorney’s fee under this regulation shall be notice to the patty responsible for payment to reserve in escrow the amount of fee approved. That party shall remit the approved fee to the attorney immediately after the expiration of the 30-day appeal period if an appeal is not filed. If an appeal is timely filed, the party responsible for payment shall continue to reserve in escrow the amount of the fee approved by the Commission pending final determination of the appeal. If the parties agree that an appeal will not be filed, the fee may be remitted to the attorney before the expiration of the 30-day period.

      . In its October 15, 2008 "Compensation Deferred and Average Weekly Wage Award” the Commission "held pending [the claim for compensation in this case] until such time as the nature and extent of [Mr. Minor's] disability, if any, [could] be determined.” The Commission determined, on December 8, 2009, that Mr. Minor was permanently partially disabled "[r]esulting in the 20% loss of use of the right hand” and was entitled to compensation "at the rate of $293.00, payable weekly, beginning November 29, 2008, for a period of 50 weeks.” At the time of the Commission award, the entire period of disability had elapsed, and Mr. Minor was entitled to the full award.


author: WRIGHT, J.

text:
    133 A.3d 1219
    Johnnie Armstead RILEY v. STATE of Maryland.
    No. 2110,
    Sept. Term, 2014.
    Court of Special Appeals of Maryland.
    March 30, 2016.

      Piedad Gomez (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, for Appellant.

      Daniel J. Jawor (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, for Appellee.
    Panel: DEBORAH S. EYLER, WRIGHT, FRIEDMAN, JJ.
   WRIGHT, J.

On June 10, 2014, Sergeant Johnnie Armstead Riley, appellant, was convicted of first-degree and second-degree assault, use of a handgun in the commission of a crime of violence, and misconduct in office by a jury in the Circuit Court for Prince George’s County. On November 13, 2014, the court sentenced Sgt. Riley to twenty years in prison with all suspended except for five years to be served without the possibility of parole, for use of a handgun during the commission of a crime of violence; a concurrent twenty-year sentence, with all but three years suspended, for assault in the first degree; and to a concurrent three years in prison for misconduct in office. The court also placed Sgt. Riley on five years of supervised probation. On November 17, 2014, Sgt. Riley noted this appeal, presenting a single question for review:

Was the evidence insufficient to sustain the appellant’s convictions?

Facts

This case stems from an on-duty police shooting. On September 6, 2012, shortly after 5:17 p.m., twenty-five year old Calvin Kyle (“Kyle”) was riding a stolen motorcycle on Marlboro Pike in the District Heights municipality of Prince George’s County. Kyle’s friends were driving ahead of him in a gold Chevrolet Tahoe (the “SUV”) on the way to a repair . shop to swap a flat tire on the motorcycle. Sgt. Riley was on patrol in an unmarked Ford Crown Victoria when the SUV and the motorcycle made illegal left turns onto Scott Key Drive before splitting up and going different ways. The SUV continued straight onto Scott Key Drive and the motorcycle turned onto Foster Street and traveled the wrong way down the one-way street.

After observing the traffic violations, Sgt. Riley activated his emergency lights and began a pursuit of the motorcycle. Kyle, the motorcyclist, did not stop when he saw Sgt. Riley behind him and instead attempted to merge onto County Road but was impeded by heavy traffic. After pulling Kyle over, Sgt. Riley approached him and informed him that he had been riding the wrong way down a one-way street. When asked for his name, Kyle, who had no license, identified himself as “Kalvin Paterson.” A license check revealed no records for a “Kalvin Paterson.” Kyle did not comply with Sgt. Riley’s requests to shut off the motorcycle and dismount. When Sgt. Riley heard a change in the engine, he believed that Kyle was “getting ready to run.” Sgt. Riley then lowered the kickstand and took Kyle off of the motorcycle.

After police dispatch informed Sgt. Riley that the motorcycle had been reported as stolen, Sgt. Riley advised Kyle that he was under arrest. Sgt. Riley searched Kyle’s pockets, handcuffed him, and sat him on a curb. Sgt. Riley removed Kyle’s shoes, hoping to find some form of identification but found none. Sgt. Riley then placed Kyle in the front passenger seat of his police vehicle for transport to the jail, securing him with a seat belt, before locking the door. By then, Officer Douglas McMillan had arrived as backup, but Sgt. Riley told him to return to service after hearing dispatch calls for Ofc. McMillan over the radio.

Kyle’s phone rang seven times while he waited with Sgt. Riley in the police vehicle for a tow truck to pick up the motorcycle. When asked by Sgt. Riley if he was with the SUV, Kyle said “no.” At one point, while waiting in the car, Kyle uttered, “there’s the gold Tahoe.” When Sgt. Riley looked up, he saw the SUV making a right turn from Foster Street onto Blazer Drive. Sgt. Riley then “started packing up everything” and walked to County Road to photograph the motorcycle in order to document the missing ignition. At that time, the SUV traveled towards Sgt. Riley at 10-15 miles per hour with the driver staring at the cruiser and hanging his arm and torso outside of the vehicle.

Sgt. Riley realized that Kyle had taken off and spotted him running on Foster Street towards Scott Key Drive. Sgt. Riley began a pursuit on foot. Sgt. Riley lost sight of the SUV and assumed that it had turned onto Elmhurst Street, which intersects with Scott Key Drive. Sgt. Riley then tried to get on the radio to request additional units, but the radio was “tied up” with other dispatch calls. During his foot chase with Kyle, Sgt. Riley’s expandable baton became fully extended and restricted his running. In “an act of desperation,” Sgt. Riley threw the baton at Kyle, adding that “everything became intense” at that point. Sgt. Riley said he believed that the SUV was there to pick up Kyle, stating:

At that point I started formulating that he’s going to make it around the corner; we’re going to be exposed. Then I’m fearing for myself, because I know once I turn that corner with Mr. Kyle, that I might be hurt. I might be put into a possible ambush. I’m not just dealing with Mr. Kyle on foot; now I got to deal with the two suspects in the car — the two unknown people in the truck, and I got to deal with the truck itself as a weapon.

Sgt. Riley yelled four times, “stop or I’ll shoot,” before firing two shots as he ran. One of the shots hit a parked vehicle. Sgt. Riley then stopped and turned, and fired a third shot hitting Kyle. According to Sgt. Riley, five or six seconds passed from when he saw Kyle running to when he fired his weapon.

Sgt. Riley testified that when he walked up to Kyle following the shooting, he “was surprised [to see] that Mr. Kyle was still cuffed.” Sgt. Riley immediately reported the shooting to the dispatcher saying, “shots fired, shots fired. County Road and Foster. Suspect down. I shot my suspect.” Officer Joseph Angle, who had just cleared a robbery a mile away, and Wendell Brantley, a Deputy Chief of Police for the District Heights Police Department, both responded to the scene, where they saw Sgt. Riley administering aid to Kyle. As a result of being shot, Kyle’s spine was severed, leaving him paralyzed from the waist down.

State’s witnesses, Adena Davis, Andrea Brown, and Latoya Cannon, said that they saw an officer chasing an individual who was running. Brown said that she saw the individual escape from the officer’s vehicle as the officer photographed the motorcycle, while Davis stated that the individual “kept looking back” at the officer. Both Brown and Davis testified to seeing the officer throw his baton at the individual, and they estimated that the officer was 25-80 feet from the individual when he fired his weapon.

The State presented two experts on the use of force by police. Sergeant William Gleason, a member of the Prince George’s County Police Department, testified that he did not believe that Sgt. Riley used a reasonable use of force. Specifically, Sgt. Gleason noted that Kyle was running away from Sgt. Riley for a relatively unserious offense while restrained in handcuffs behind his back. As such, Kyle did not pose any imminent threat of harm because “no reasonable person would believe that [Kyle] was armed at the time,” particularly since Sgt. Riley had already searched Kyle’s person twice.

Craig Dickerson, a thirty-year veteran of the Montgomery County Police Department, testified and based on the information presented, he believed it was a “tactical error in judgment.” According to Dickerson, an officer is permitted to use deadly force “based on the threat and ... the seriousness of the crime,” but that Kyle posed a minimal threat as he was handcuffed and running away. Dickerson also added that a “better or more reasonable action” would have been to “call and ask for assistance.”

The defense presented its own expert on the use of force. David G. Bolgiano, a retired military officer, testified that because the officers confront tense and rapidly evolving situations, the deadly force policy is “deliberately vague” and not subject to “bright-line rules.” Bolgiano testified that “inattentional blindness” and loss of fine motor skills caused by the fear of death impacted Sgt. Riley’s actions. According to Bolgiano, “viewed from the perspective of a reasonable police officer and the information that officer possessed at the time he made the decision to use deadly force and all the preassaultive indicators[] that were present, his actions were objectively reasonable.”

After deliberating for eight hours, the jury acquitted Sgt. Riley of attempted murder in the second degree, but convicted him of assault in the first and second degree, use of a handgun during the commission of a crime of violence, and misconduct in office. This appeal followed.

Additional facts will be included below as they become relevant to our discussion.

Standard of Review

On a claim that the evidence is insufficient to support the conviction, the standard of review is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Gerald v. State, 137 Md.App. 295, 308, 768 A.2d 140 (2001) (citation omitted). “Our concern is not with whether the trial court’s verdict is in accord with what appears to us to be the weight of the evidence, but rather is only with whether the verdicts were supported with sufficient evidence — that is, evidence that either showed directly, or circumstantially, or supported a rational inference of facts which could fairly convince a trier of fact of the defendant’s guilt of the offenses charged beyond a reasonable doubt.” State v. Albrecht, 336 Md. 475, 478-79, 649 A.2d 336 (1994) (internal citations omitted). In that regard, we defer to the fact finder’s “resolution of conflicting evidence, and, significantly, its opportunity to observe and assess the credibility of witnesses.” State v. Svddith, 379 Md. 425, 430, 842 A.2d 716 (2004) (citation omitted). Thus, “the judgment of the trial court will not be set aside on the evidence unless clearly erroneous.” State v. Manion, 442 Md. 419, 431, 112 A.3d 506 (2015) (citation omitted).

Discussion

I. Assault

Sgt. Riley first argues that the evidence was insufficient to sustain his conviction for assault. Specifically, Sgt. Riley contends that “[bjecause there was no evidence presented to support a finding that [he] acted with malice in using his service weapon, the State failed to prove that he was criminally liable under §§ 3-202, 3-203 ... of the [Md.Code (2002, 2012 RepLVol.),] Criminal Law Article [ (“CL”) ].” In support of his argument, Sgt. Riley emphasizes that “for criminal liability there must be ‘concurrence of an evil-meaning mind with an evil-doing hand.’ ” (Quoting Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 96 L.Ed. 288 (1952)).

At the conclusion of the State’s case in the circuit court, counsel for Sgt. Riley moved for judgment of acquittal, stating:

With respect to the assault counts, because of my client’s position as a police officer, I still think the State — because an officer has some degree of immunity for his actions, the State still has to prove that these acts were done with malice.

I’ve submitted a requested jury instruction on malice that I would call to the Court’s attention ____ I believe I submitted — that they’d have to show that he acted knowingly and deliberately for an improper motive and without legal justification.

Mere errors of judgment, whether occasioned by negligence o[r] otherwise, are not crimes.

Similarly, an act that is done merely because of mistake, accident, carelessness, or other innocent reason is not done maliciously.

Defense counsel renewed his argument at the conclusion of the entire case, stating in pertinent part:

The State is trying to argue to the Court that a police officer, for actions which the subsequent statute assigns, actions for which he could not be civilly liable for a nickel, he’s criminally liable. And I don’t think that that is what any case says. I don’t think that makes sense.

The legislature is saying when an officer is acting in the course of his duties, there’s a level of governmental immunity that applies, and that would also carry over to the criminal law.

In response, the State argued:

I disagree ... that the case law in any way has the added burden of the State showing malice on the part of the defendant in the context of a criminal case. I believe that the case law clearly will show, and there are statutes to the effect that affirm this, malice is a required element in the civil context; however, it is not in the criminal context.

Ultimately, the circuit court agreed with the State and denied the motion for judgment of acquittal stating:

I see nothing in the definition of battery ... or in the definition of assault that talks about malice. I mean, it’s very clear.

Battery, if you look at the instruction — this is the assault count that would lie ... which is at [Maryland Criminal Pattern Jury Instructions] 4:01(c), “assault is causing offensive physical contact to another person. The State must prove, one, that the defendant caused the physical harm; two, that the contact was the result of an intentional or reckless act and was not accidental; and, three, that the contact was either not consented to or not legally justified.” That’s not complex. That’s the state of the law.

And then to add first degree to it means that it was done causing serious permanent — and permanent or serious protracted injury and that it was done by a firearm.

Subsequently, the State, in its rebuttal closing argument, contended that even if the jury found no intent to kill, Sgt. Riley was guilty of assault “because he inflicted a very serious sort of physical injury on [C]alvin Kyle that wasn’t consented to in any way by Mr. Kyle[.]”

We agree with the State and the circuit court that Sgt. Riley’s reliance on Morissette is misplaced. The substantive elements of assault do not change based on the identity of the defendant. In this case, Sgt. Riley was convicted of assault, a general intent crime, Genies v. State, 196 Md.App. 590, 601, 10 A.3d 854 (2010), aff'd, 426 Md. 148, 43 A.3d 1007 (2012), that does not require malice. Johnson v. State, 223 Md.App. 128, 147, 115 A.3d 668, cert. denied, 445 Md. 6, 122 A.3d 975 (2015). “Because it lacks the element of malice, [ ] assault cannot be reduced by the defense of provocation into some lesser offense.” Id. “A provocation defense ... serves only to mitigate the presence of malice and cannot absolve an individual of all criminal liability.” Id. at 146, 115 A.3d 668 (citations omitted). Nonetheless, as the State correctly notes, Sgt. Riley was “entitled to raise the affirmative defense of law-enforcement justification, which he in fact did” and which, according to the verdict, the jury did not accept. See generally Tavakoli-Nouri v. State, 139 Md.App. 716, 731, 779 A.2d 992 (2001) (recognizing “that police officers, when arresting a suspect, have the right to take reasonably necessary measures to make the arrest in a manner that protects both the public and themselves,” including the use of force) (citation omitted); Wilson v. State, 87 Md.App. 512, 520, 590 A.2d 562 (1991) (“We hold that a police officer, from the perspective of a reasonable police officer, may use only that amount of force reasonably necessary under the circumstances to discharge his duties.”) (Citation omitted); see also 2 Wayne R. LaFave, Substantive Criminal Law § 10.7 at 173 (West 2d ed. 2003) (“A police officer, or a person aiding him, is justified in using reasonable force to make a lawful arrest or to prevent the escape from custody of one already arrested.”); 2 Paul H. Robinson, 2 Criminal Law Defense § 142 (West 1984, updated July 2015) (discussing the “public authority” forms of “justification defenses” to criminal culpability).

Sgt. Riley cites Elonis v. United States, - U.S.-, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015), and State v. Pagotto, 361 Md. 528, 762 A.2d 97 (2000), to support his contention, but those cases are inapposite. The portion of Elonis that Sgt. Riley relies on instructs that strict-liability crimes are disfavored and, when appropriate, a court will impute a mens rea element to avoid them. 135 S.Ct. at 2009. But, battery is not a strict-liability crime. Rather, it requires proof that the offensive physical contact the defendant made with the victim was the result of reckless or criminal negligence. Elias v. State, 339 Md. 169, 184, 661 A.2d 702 (1995).

Meanwhile, Pagotto is factually distinguishable. In that case, Pagotto, a police officer, was charged with involuntary manslaughter and reckless endangerment following an incident in which a bullet from his handgun killed a motorist who was driving a vehicle that Pagotto was attempting to stop while on duty. Pagotto, 361 Md. at 534-38, 762 A.2d 97. The Court of Appeals later vacated Pagotto’s convictions after concluding that “the evidence presented at trial, as a matter of law, was insufficient” as “Sergeant Pagotto’s behavior simply did not evidence a ‘wanton or reckless disregard for human life.’ ” Id. at 553, 762 A.2d 97. Sgt. Riley, however, provides no argument to indicate why we should apply the elements of involuntary manslaughter or reckless endangerment to a case involving assault. More importantly, we note that unlike in this case, the Pagotto Court concluded that “[t]he State produced no evidence that [Sergeant] Pagotto was aiming his gun at [the victim] when it discharged.” Id. at 554, 762 A.2d 97.

Here, a rational trier of fact could have found that: (1) Sgt. Riley caused Kyle physical harm; (2) the contact was the result of an intentional or reckless act and was not accidental; and (3) the contact was not consented to by Kyle. Thus, there was sufficient evidence to support Sgt. Riley’s conviction for assault.

II. Use of a Handgun

Next, Sgt. Riley argues that the evidence was insufficient to sustain his conviction for use of a handgun during the commission of a crime of violence pursuant to CL § 4-204. In pertinent part, this section states: “A person may not use a firearm in the commission of a crime of violence, as defined in § 5-101 of the [Md.Code (2003, 2011 RepLVol.),] Public Safety Article [ (“PS”) ], or any felony, whether the firearm is operable or inoperable at the time of the crime.” CL § 4-204(b). According to Sgt. Riley, “§ 4-204 is not intended to deter a police officer who is required to carry a firearm and [who is] permitted to use [it] in the course of carrying out his duties.”

In response, the State contends that Sgt. Riley did not preserve this issue for our review because he never argued it below. Alternatively, the State asserts that Sgt. Riley’s argument fails on the merits because: (1) the Legislature did not intend to limit CL § 4-204 to a “preexisting subset of citizens against whom the statute would operate[;]” (2) Sgt. Riley’s construction of the statute is dependent upon his view that he “act[ed] in accord with his sworn duty to enforce the State’s criminal laws when he used his service weapon,” which is inconsistent with the jury’s factual findings; and (3) his interpretation of CL § 4-204 “would lead to an absurd result ... [as] any person with a clean record could violate the statute with impunity because that person would not be a criminal yet.”

Assuming without deciding that Sgt. Riley preserved this issue for our review, we agree with the State that his argument nonetheless has no merit. “In construing a statute, one begins with the ‘plain meaning’ of the statutory language and may end there if the meaning is plain enough.” State v. Roshchin, 446 Md. 128, 140, 130 A.3d 453 (2016) (footnote omitted). A plain reading of the relevant portion of CL § 4-204 prohibits a person from using a firearm in the commission of a crime of violence. CL § 4-204(b). In turn, PS § 5-101(c)(3) includes second-degree assault as a crime of violence. Had the Legislature intended to exempt police officers from the prohibition imposed by CL § 4-204, it could have specified as such. Cf CL § 4 — 203(b)(1) (specifically creating an exception for police officers with regard to the crime of wearing, carrying, or transporting a handgun); 18 U.S.C. § 926B (same). Here, it is undisputed that Sgt. Riley is a person who used his service weapon to shoot Kyle, and he resultantly, was found guilty of second-degree assault. Thus, there was sufficient evidence to support Sgt. Riley’s conviction for use of a handgun during the commission of a crime of violence under CL § 4-204.

Sgt. Riley cites State v. White, 29 N.E.3d 939, 949-50 (Ohio 2015), cert. denied, - U.S.-, 136 S.Ct. 73, 193 L.Ed.2d 207 (2015), but his reliance on that case is misplaced. Although Sgt. Riley correctly recognizes the Supreme Court of Ohio’s statement that “it is neither just nor reasonable to apply a firearm specification to a police officer involved in an on-duty shooting based only on a showing of poor judgment or negligence in using force,” he fails to acknowledge the following clarification made by the Court:

[T]he statute requires that a distinction be drawn between a police officer who acts in accord with the duty to uphold the law and one who abandons that duty by committing a criminal offense.

The firearm specification may apply if the facts of a given case demonstrate that the actions of the officer display criminal misconduct constituting a departure from the course and scope of official duties, as police officers have no license to commit crimes under color of office. See, e.g., United States v. Ramos, 537 F.3d [439,] 458 [ (5th Cir.2008) ] (upholding application of a firearm specification to border patrol officers convicted of criminal offenses for shooting a fleeing suspect when there was no phgsical threat to the officers or to others); United States v. Moore, 363 F.3d 631, 641 (7th Cir.2004) (upholding application of a firearm specification to police officers “hired to use their status as police officers, with all the trappings, to protect Silky’s drug couriers,” even though the officers’ service weapons had not been brandished or used); United States v. Contreras, 950 F.2d 232, 241-242 (5th Cir.1991) (upholding application of a firearm specification to a police officer who conducted a traffic stop and then sexually assaulted a passenger in the vehicle).

Id. at 949 (emphasis added). Where, as here, there was testimony that Sgt. Riley shot Kyle as Kyle was handcuffed and running away, and therefore, did not pose any imminent threat of harm, we hold that CL § 4-204 applied. See Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable .... Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”).

III. Misconduct in Office

Finally, Sgt. Riley challenges his conviction for misconduct in office, arguing that “mere errors in judgment did not come within the conduct proscribed by this offense.” In support of his argument, Sgt. Riley cites Leopold v. State, 216 Md.App. 586, 604-05, 88 A.3d 860 (2014), where we stated:

“In Maryland, misconduct in office is a common law misdemeanor.” Duncan v. State, 282 Md. 385, 387, 384 A.2d 456 (1978) (footnote omitted). It has been defined as “corrupt behavior by a public officer in the exercise of the duties of his office or while acting under color of his office.” Id. (citing Perkins on Criminal Law 485 (2d ed. 1969); Hitzelberger v. State, 174 Md. 152, 197 A. 605 (1938)). The corrupt behavior may be: (1) the doing of an act which is wrongful in itself, or “malfeasance;” (2) the doing of an act otherwise lawful in a wrongful manner, or “misfeasance;” or (3) the omitting to do an act which is required by the duties of the office, or “nonfeasance.” Id. (citations omitted). Acts that qualify as misconduct in office include:

neglect or non-performance of any positive duty imposed by law; oppressive and wilfljful abuse of authority (to be distinguished from mere error of judgment); extortion; fraud or breach of trust affecting the public, such as rendering, passing or procuring false accounts, or wil[l]fully neglecting to account for money received, or corruptly retaining money found upon a prisoner; grossly indecorous conduct, such as sitting as a justice while drunk, or getting drunk during time of service as a grand juror.

Chester [v. State], 32 Md.App. [593,] 606, 363 A.2d 605 [ (1976) ] (citation omitted and emphasis added).

(Italicized emphasis in original; bolded emphasis added). According to Sgt. Riley, because “the State’s experts plainly opined that appellant’s act of shooting Kyle was ‘a tactical error in judgment,’ ” then the evidence does not support the State’s contention that Sgt. Riley “ “willfully disregarded’ the standard for using deadly force.”

We reiterate that, in reviewing a claim for insufficiency of evidence, the standard of review is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Gerald, 137 Md.App. at 308, 768 A.2d 140 (citation omitted). The flaw in Sgt. Riley’s argument on appeal is that he focuses on the portion of the State’s experts’ testimonies wherein Sgt. Gleason and Dickerson opined that Sgt. Riley made an “error in judgment.” Sgt. Riley, however, disregards the portion where both experts stated that he acted unreasonably. For example, Sgt. Gleason went on to testify that Sgt. Riley “used unnecessary force and unreasonable force[,]” while Dickerson stated that “no reasonable person is going to use deadly force in this incident with [the victim’s hands] handcuffed behind his back.” Viewing this evidence in the light most favorable to the State, the jury could have found — and did, in fact, find — that Sgt. Riley exercised a willful abuse of his authority and not simply a mere error in judgment.

Thus, for all of the foregoing reasons, we affirm the circuit court’s judgments.

JUDGMENTS OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . The second-degree assault count merged for the purpose of sentencing.

      . The record refers to an incorrect spelling of Calvin’s first name with a "K.” The correct spelling is with a "C."

      . Bolgiano has participated in crafting the "use of force” policies for the Drug Enforcement Administration, the Department of Justice, the United States Air Security Forces, the United States Special Operations Command Central, the U.S. Army, and the Center for Law and Military Operations.

      . Bolgiano classified the following as pre-assaultive danger cues: Kyle's apparent collusion with other subjects; his attempt to evade Sgt. Riley by going down the one-way street; his possession of a stolen motorcycle; his noncompliance with commands; his giving of a false identity; his cell phone repeatedly ringing; his co-conspirator circling the block in an SUV; his escape; his continued flight after Sgt. Riley threw his baton and gave verbal warnings; his turning to look over his shoulder; and his bent elbow as he ran, “showing reaching for a potential weapon.”

      . Malice may be inferred from (1) an act by the accused sufficient to show an intent to inflict great bodily harm or (2) an act the natural tendency of which would cause death or great bodily harm. See Lindsay v. State, 8 Md.App. 100, 107 n. 10, 258 A.2d 760 (1969).

        . Because CL § 4-204 is plain enough, we need not address Sgt. Riley’s reasoning rooted in CL § 4-202 (legislative findings), PS § 3-201 (defining "police officer”), Md.Code (2001, 2008 Repl.Vol.), § 2-101 of the Criminal Procedure Article (same), and COMAR 12.04.01.12(B)(1) (listing "Annual Police Officer Firearms Training and Qualification Requirements”).

      . Although not from this jurisdiction, State v. Lore, 197 N.J.Super. 277, 484 A.2d 1259 (App.Div.1984), is instructive. In that case, an on-duty police officer fired a shot at an individual whom he was attempting to arrest, while the individual was fleeing. Id. at 1261. In affirming the officer’s convictions for simple assault and misconduct in office, the Superior Court of New Jersey stated:
      It is undisputed that defendant came upon the scene of a fight or scuffle and attempted to arrest Molowitz. The duties of a public servant, such as a police officer, are those which are cast by law upon that public servant or those which are inherent in and naturally arise from the nature of the office. It is also clear that a police officer has the responsibility of investigating and arresting suspected violators of the law. He is permitted, however, to use only such force as may be reasonably necessary to effectuate the arrest. We, therefore, have no doubt that defendant was engaged in an official function of his office as a police officer when he arrested Molowitz. The jury found that in the course of effectuating that arrest, defendant used excessive force injuring Molowitz which constituted a simple assault upon Molowitz. The assault therefore became "an act relating to his office” which was committed "with purpose ... to injure" Molowitz and that assault constituted "an unauthorized exercise of his official functions.” The use of excessive force while arresting Molowitz also means that defendant performed an official function in "an unauthorized manner.”

        Id. at 1262 (citations omitted). Comparably, in the case before us, the jury found Sgt. Riley guilty of second-degree assault. Thus, the assault became an act "by a public officer in the exercise of the duties of his office” which was "corrupt,” and that assault constituted an "oppressive and willful abuse of authority.” See Leopold, 216 Md.App. at 604-05, 88 A.3d 860.