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Faya v. Almaraz3/9/1993
for the reasons discussed above, any lingering injuries, as a matter of law, are no longer related to fear that is reasonable.
For all of the foregoing reasons, the trial court erred in dismissing appellants' negligence complaints against Dr. Almaraz, which were based on his asserted failure to disclose his infected condition. Appellants have alleged facts which, if proven, indicate that Dr. Almaraz may have breached a legal duty, thereby causing them to suffer legally compensable injuries. As we said in Curley v. General Valet Service, 270 Md. 248, 264, 311 A.2d 231 (1973), negligence is a relative term, to be decided upon the facts of each particular case, and, consequently, it is ordinarily a question of fact to be determined by the factfinder. Where, as here, we must accept as true all well-pleaded factual allegations of the complaints, as well as all favorable factual inferences deducible therefrom, we cannot declare as a matter of law that Dr. Almaraz was not guilty of
negligence due to his claimed failure to communicate that he was HIV-positive. We, therefore, must find, as to these negligence counts, that appellants alleged sufficient facts in their complaints to survive the appellees' motions to dismiss.
D
We next consider whether the appellants have stated a cause of action in negligence against appellee Hopkins Hospital. Like any other employer, a hospital is responsible under agency principles for the negligence of its servants or employees; this vicarious liability extends to any apparent agents whom a hospital represents as its employees. Mehlman v. Powell, 281 Md. 269, 378 A.2d 1121 (1977); Franklin v. Gupta, 81 Md. App. 345, 567 A.2d 524 (1990). The existence of an agency relationship is a question of fact which must be submitted to the factfinder if any legally sufficient evidence tending to prove the agency is offered. Flanigan & Sons, Inc. v. Childs, 251 Md. 646, 652, 248 A.2d 473 (1968); Hamilton v. Caplan, 69 Md. App. 566, 575, 518 A.2d 1087 (1987).
Appellants here alleged that Hopkins represented that Dr. Almaraz was its agent; that they believed that he was its agent; and that they relied on this representation and Hopkins' excellent medical reputation in selecting Almaraz as their surgeon. Because it is undisputed that Almaraz enjoyed "operative privileges" at Hopkins, we cannot say as a matter of law that the facts alleged in the appellants' complaints are legally insufficient on their face to aver an agency relationship. Thus, the trial court erred in dismissing appellants' basic negligence complaints against Hopkins.
V
In view of our disposition of the basic negligence counts grounded on Dr. Almaraz's asserted failure to warn the appellants of his infected condition, and because the damages
claimed on all counts are essentially the same, the trial judge erred in dismissing the other counts as well. As we see it, after viewing the allegations of the complaints in support of these counts, dismissal was not appropriate in the circumstances.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY DISMISSING THE COMPLAINTS REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE APPELLEES.
Disposition
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY DISMISSING THE COMPLAINTS REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. COS
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