The Court of Special Appeals of Maryland (“Maryland Appellate Court”) discussed in its reported opinion dated April 26, 2018 whether the purported negligence of a plaintiff, which precedes the medical treatment by the defendant, may be raised by the defendant as contributory negligence in a Maryland medical malpractice case.
The Maryland Appellate Court stated that a defendant health care provider may raise, in a medical malpractice case, any of the affirmative defenses generally available in any negligence action, including contributory negligence; however, a plaintiff’s purported contributory negligence may not be invoked as a defense in a negligence action unless there is some evidence that the injured party acted, or failed to act, with knowledge and appreciation, either actual or imputed, of the danger of injury which his conduct involves.
As applied to a Maryland medical malpractice action, the rule permits a contributory negligence defense where there was evidence adduced that the plaintiff had received treatment from a health care provider, that he had then been given instructions by that provider, and that he had not followed, or unreasonably delayed in following, those instructions.
In the case the Maryland Appellate Court was deciding, the plaintiff had filed a Maryland medical malpractice action against a surgeon who performed gallbladder surgery on him, alleging acts of medical negligence that caused thermal injury to his right hepatic artery and a bile duct injury. The defendant raised the affirmative defense of contributory negligence, arguing that the plaintiff had been contributorily negligent in leaving the emergency room eleven days earlier when he had complaints of experiencing severe and persistent abdominal pain throughout the day, without having received a diagnosis and then not returning to that medical facility until eleven days later (the plaintiff left the emergency room during the first visit because he had waited for over two hours to be seen by a doctor, without success, and his pain had diminished).
The plaintiff filed a motion to preclude the contributory negligence defense at trial but the trial court denied the motion. The Maryland medical malpractice jury subsequently returned its verdict for the defendant, and the plaintiff appealed, arguing that the trial court erred in permitting the defendant to raise a contributory negligence defense at each stage of trial; then, in instructing the jury that contributory negligence was a defense to the plaintiff’s Maryland medical malpractice claim; and, finally, in providing a verdict sheet presenting that defense for the jury’s consideration.
The Maryland Appellate Court stated that Maryland appellate courts have upheld the submission of a contributory negligence issue to a jury in medical malpractice cases, but only where there was evidence adduced that the plaintiff had received treatment from a health care provider, that he had then been given instructions by that provider, and that he had not followed, or unreasonably delayed in following, those instructions.
The Maryland Appellate Court stated that in the present case, it was confronted with the question of whether a physician, who had not yet treated or even seen the plaintiff when the alleged contributory negligence occurred, can raise that purported negligence as a defense. The Maryland Appellate Court stated: “although [the plaintiff’s] purported negligence, in leaving the emergency room and not returning for eleven days, may have led to the growth of adhesions that made his gallbladder surgery more difficult than if he had undergone surgery without delay, … [the plaintiff’s] delay in seeking medical treatment was plainly not a proximate cause of the injury he sustained as a result of the medical malpractice that allegedly ensued … [the defendant] cannot ‘avoid responsibility for a failure to fulfill’ her duty to provide reasonable medical care under the circumstances ‘by claiming that [the plaintiff’s] prior negligence caused or contributed to’ the condition that necessitated his treatment.”
The Maryland Appellate Court held: “the circuit court committed multiple errors in the instant case: first, in permitting [the defendant] to pursue a defense of contributory negligence based solely upon [the plaintiff’s] pre-treatment conduct; second, in giving a contributory negligence instruction to the jury; and third, in providing the jury with a special verdict sheet, setting forth that defense.”
The Maryland Appellate Court further held the error was so prejudicial that it was likely to have affected the verdict below, because the defense raised the plaintiff’s alleged contributory negligence in opening statement; during the cross-examination of the plaintiff’s lay and expert witnesses; then, during the direct examination of the defendant’s three expert witnesses; and, finally, stressed in closing argument, whereupon the Maryland medical malpractice jury received oral and written instructions as to the relevance of the plaintiff’s alleged negligence (the defense relentlessly blended the two issues, by repeatedly inviting the jury to find, when it considered whether the defendant had violated the standard of care, that the plaintiff’s unnecessary delay in seeking treatment had all but ensured an unsatisfactory outcome and thus the defendant could not be held accountable for that result).
Source Barbosa v. Osbourne, No. 1258 September Term, 2015.
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