In its reported opinion filed on September 1, 2017, the Court of Special Appeals of Maryland (“Maryland Appellate Court”), Maryland’s intermediate appellate court, vacated a Baltimore medical malpractice verdict in the amount of $329,000 in favor of the plaintiff, holding that the trial court erred in giving jury instructions on negligence framed in terms of the conduct of a reasonable person in a Maryland medical malpractice case, and the trial court abused its discretion when, in response to a question from the jury during its third day of deliberations, imposed a one-hour deadline to conclude deliberations.
The trial court told the jurors that a mistrial would result from continued deadlock and requested the jurors to deliberate for another hour but also told them that they would not be asked to return the following day. About an hour later, the Maryland medical malpractice jury returned a verdict in favor of the plaintiff on the medical malpractice issue and in favor of the defendant neurosurgeon on the plaintiff’s informed consent claim.
The Underlying Facts
After years of neck and shoulder pain and a recent onset of numbness in his right hand, the plaintiff consulted with the defendant neurosurgeon on January 17, 2012, during which they discussed both surgical and nonsurgical treatments. The plaintiff agreed to the defendant neurosurgeon’s recommendation of a four-level anterior cervical discectomy and fusion surgery. The defendant performed the surgery on the plaintiff on March 1, 2012.
The plaintiff’s recovery apparently went well for the first few weeks following the surgery, but he subsequently contacted the defendant surgeon and went to the emergency room several times between March and August, complaining of a “pin-point opening” at the end of his incision and, later, of chest pain and episodic and progressive numbness in his left arm.
A nurse found no active drainage from the opening, the plaintiff did not have a fever, and x-rays showed that the hardware from his fusion procedure was well placed. Nonetheless, the plaintiff at one appointment was given oral antibiotics, and the defendant neurosurgeon eventually ordered a CT myelogram to investigate the cause of the plaintiff’s symptoms, which was eventually performed on July 20, 2002. The CT myelogram was interpreted by the defendant as normal.
On August 17, 2012, the plaintiff went to the emergency room with complaints of swelling and tenderness in his neck, redness near the incision, and fever and chills, at which time it was determined that the “pinpoint opening” had developed into an abscess. The abscess was drained and tested positive for a methicillin-sensitive Staphylococcus aureus bacterial infection.
The plaintiff filed his Maryland medical malpractice claim alleging that the surgery performed by the defendant neurosurgeon was not medically necessary and was not appropriate for someone of the plaintiff’s age and overall health condition. The plaintiff further alleged that the defendant and others at the hospital were too slow in diagnosing and treating his post-operative infection. The plaintiff’s Maryland medical malpractice lawsuit also alleged that the defendant had failed to obtain proper informed consent from him for the surgery that the defendant performed.
The defense argued that the defendant had complied with the standard of care in determining that the plaintiff was a candidate for the fusion surgery, that the defendant had obtained the plaintiff’s informed consent to the operation after appropriate disclosures, and that the plaintiff’s infection, which was diagnosed in mid-August, had been present for only a couple of weeks before it was diagnosed.
At the end of the five-day Maryland medical malpractice trial, and over the objection of the defendant, the trial judge gave the Baltimore medical malpractice jury an instruction that combined the substance of Maryland Civil Pattern Jury Instructions 19:1 (defining negligence) and 19:3 (explaining the general negligence concept of foreseeable circumstances), along with an instruction regarding the requisite standard of care for physicians in the context of medical malpractice specifically (“A health care provider is negligent if the health care provider does not use that degree of care and skill which a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances would use”).
The Maryland medical malpractice jury determined that the defendant neurosurgeon had been medically negligent in treating the plaintiff and that the defendant’s medical negligence injured the plaintiff, returning its verdict in favor of the plaintiff in the amount of $329,000. The defendant appealed.
The defendant argued that the trial court committed reversible error by giving the foreseeable circumstances instruction, prejudicially heightening the duty owed to the plaintiff patient (i.e., the contested instructions, sounding in general negligence, modified the standard of care to which the defendant was expected to adhere, inviting the jury to compare his conduct to that of a reasonable person without his specialized knowledge or skill, and instructed the jury about foreseeable circumstances that permitted the jury to speculate about inapplicable legal principles and implied there was some type of foreseeable danger that required the defendant to change his conduct accordingly).
The Maryland Appellate Court held that giving the challenged instruction constitutes reversible error because (1) pattern jury instructions framed in terms of the conduct of a reasonable person are inapplicable in a medical malpractice case and (2) the context surrounding the given instruction did not dispel a probability of prejudice to the defendant.
The Maryland Appellate Court stated that Maryland law has maintained since a 1889 appellate court decision, that a separate standard of care applies in medical negligence cases, expecting of doctors that reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients (i.e., Maryland physicians are required to exercise the degree of care or skill expected of a reasonably competent health care provider in the same or similar circumstances).
While no prior Maryland appellate opinion has explicitly addressed the suitability of general negligence or foreseeable circumstances instructions in medical negligence cases, the Maryland Appellate Court stated that it is wrong to instruct juries that a greater risk to the patient creates a higher duty in the physician. The Maryland Appellate Court held that by including Maryland Civil Pattern Jury Instruction 19:3 in the jury’s charge in the present Maryland medical malpractice case, the trial court three times invited the jury to determine whether the defendant neurologist was negligent by invoking the conduct and perception of a “reasonable person” instead of the accepted practice among the defendant’s similarly skilled peers, which error was reinforced by including Maryland Civil Pattern Jury Instruction 19:1, which focuses on “reasonable care” and the “caution, attention or skill [of] a reasonable person.” (“While the instructions on general negligence and foreseeable circumstances may have been correct statements of negligence law in Maryland, they failed to account for a medical doctor’s specialized knowledge and skill.”)
The Maryland Appellate Court held: “[m]edical malpractice claims are not general negligence claims, and so jury instructions on general negligence, although correct statements of Maryland law, are not supported by the facts of a case centered on the allegedly negligent conduct of a physician. Accordingly, we hold that the trial court erred in giving general negligence instructions in a medical malpractice case … [and] the erroneous instructions in the present case were prejudicial.”
The Maryland Appellate Court further held: “we conclude that the court did not err in informing the jury that a mistrial would result from a failure to reach a unanimous decision and that, under the circumstances of this case, the court also did not abuse its discretion by giving a modified Allen charge. However, the court did err by giving that instruction while at the same time imposing a time limit of one hour for further deliberation. The time limit rendered the supplemental instruction unduly coercive.”
The Maryland Appellate Court held: “Each error is prejudicial and each requires reversal.”
Source Davis v. Armacost, No. 822, September Term, 2016
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