In a case decided on January 28, 2015 by the Court of Special Appeals of Maryland (“Appellate Court”), which is Maryland’s intermediate appellate court, it was held that the trial judge did not abuse his discretion when he allowed the Defendant emergency room physician to testify as her to habit and routine when treating patients such as the decedent, whose death was alleged to have been caused by the defendant’s medical negligence, where the defendant did not recall the patient or the medical treatment.
The Underlying Facts
On November 21, 2003, the decedent slipped and fell on a wet floor in a nursing home resident’s room, while at work. She was immobilized on a backboard and transported by ambulance to a local hospital, where she was treated by the defendant emergency room physician. The defendant’s notes did not indicate that the decedent had back pain. The decedent was discharged from the hospital a little more than one hour after she had arrived.
Three days later, the decedent was treated by another physician, who documented complaints of soreness in the decedent’s hip, knee, and back, after which the physician diagnosed “leg pain.” Fifteen days later, the decedent was treated by another physician for her worsening condition, which resulted in x-rays being taken which showed an acute compression fracture of the L3 vertebrae with nerve root compression. Six days later, the decedent underwent a posterior spinal fusion and anterior spinal fusion to correct the L3 burst fracture, and she was discharged four days later to a rehabilitation facility. The decedent was later transferred to the hospital for treatment of a surgical infection, where she suffered an anoxic brain injury eight days later due to an unexpected ventricular fibrillation arrest. The decedent remained in a persistent vegetative state for eight days before she died.
A Maryland medical malpractice lawsuit was subsequently filed against the defendant emergency room physician and others. During trial, the defendant emergency room physician testified that she had no recollection of the decedent due to the large number of patients that she had treated since, but the defendant was allowed to testify regarding her habit/routine regarding examining a patient on a backboard: the defendant testified that she had examined thousands of patients arriving on backboards while working at the hospital for four and a half years, that she had treated several patients per shift who arrived by ambulance on a backboard, having seen between 5,000 and 6,000 patients per year, and that she performed the same process of routinely conducting a spine examination on every patient on a backboard before removal of the backboard – “the same way, every single time, every day that I work.” The Maryland medical malpractice jury returned its verdict in favor of the defendants, finding that the defendant emergency room physician was not negligent in her treatment of the decedent. The plaintiffs appealed.
The Appellate Court held that it was not an abuse of discretion for the trial judge to have allowed the defendant’s habit/routine testimony in light of her testimony that included how she “cleared the spine,” that she did it the same way, every single time (i.e., her habit was invariable), the large number of times that she had performed the procedure, and her certainty of performing the procedure every time a patient was removed from a backboard. The Appellate Court held that the testimony was sufficient as habit evidence that is admissible under Maryland evidentiary rules.
The Appellate Court further held that corroboration of the defendant’s habit testimony was unnecessary for her testimony to be admitted because there is no requirement that the habit testimony be corroborated by other evidence, and that the jury, having heard the evidence, could weigh the testimony and decide what weight to afford it.
Sean Rosebrock, Individually, and as Guardian of Judith Phillips v. Eastern Shore Emergency Physicians, LLC, et al., No. 807. You can read the entire opinion of the Appellate Court by clicking here.
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