Davis v. Armacost

Kehoe, J. This appeal raises two questions, both fairly well settled in other jurisdictions but apparently matters of first impression in Maryland. The first is whether the trial court in a medical ⁷⁸ malpractice action was wrong to give jury instructions on negligence framed in terms of the conduct of a reasonable person. The second is whether the court abused its discretion when, in response to a question from the jury during its third day of deliberations, it imposed a one-hour deadline to conclude deliberations. Mark Armacost sued his neurosurgeon, Reginald J. Davis, M.D., for malpractice and failure to obtain informed consent.

At the end of a five-day trial, the court gave its instructions to the jury. Over Dr. Davis’s objection, the jury’s charge included an instruction on the general negligence concept of foreseeable circumstances—describing how “a reasonable person changes conduct according to the circumstances and the danger that is known or would be appreciated by a reasonable person” in addition to an instruction couched in terms of the standard of care that should be employed by a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances. During its third day of deliberations, the jury sent a note to the court asking what would happen if it could not reach a unanimous verdict. The court told the jurors that a mistrial would result from continued deadlock and also issued a modified Allen charge.

In addition, the court 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 jury returned a verdict in favor of Mr. Armacost on the malpractice issue and in favor of Dr. Davis on the informed consent claim. On appeal, Dr. Davis raises two questions, which we have rephrased: 1. Did the trial court commit reversible error by giving the foreseeable circumstances instruction (Maryland Civil Pattern Jury Instruction 19:3), prejudicially altering or heightening the duty owed by Dr. Davis to patient Mr. Armacost? 2.

Were the court’s supplemental instructions unduly coercive? ⁷⁹ As we will explain, we conclude that the trial court should not have given the foreseeable circumstances instruction nor, for that matter, another instruction defining negligence framed in terms of the conduct of a reasonable person. The court also erred in attaching a seeming one-hour deadline for the jury to reach a verdict after disclosing that a mistrial would result from a failure to reach a unanimous decision and issuing a modified Allen charge. Each error warrants reversal. Background On January 17, 2012, after years of neck and shoulder pain and a recent onset of numbness in his right hand, Mr. Arma-cost consulted with Dr. Davis, the chief neurosurgeon at the Greater Baltimore Medical Center (GBMC).

They discussed both surgical and nonsurgical treatments, and Mr. Armacost ultimately agreed to Dr. Davis’s recommendation of a four-level anterior cervical discectomy and fusion surgery. Dr. Davis performed the procedure on March 1, 2012, and removed the damaged discs from Mr. Armacost’s cervical spine. 1 Mr. Armacost’s recovery was not a smooth one. Although he expressed no concerns in the first few weeks following the surgery, Mr. Armacost contacted Dr. Davis and GBMC several times between March and August, by telephone and by visiting the emergency room. He complained 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, and X-rays showed that the hardware from his fusion procedure was well placed. Mr. Armacost had no fever. Nonetheless, at one appointment he was given oral antibiotics, and Dr. Davis eventually ordered a CT myelogram 2 to attempt to figure out the cause of Mr. Armacost’s symptoms. Mr. Armacost took more than a month ⁸⁰ to schedule that procedure, but it was eventually performed on July 20.

Dr. Davis interpreted the CT myelogram as normal. On August 17, 2012, Mr. Armacost came to the GBMC emergency room reporting swelling and tenderness in his neck, redness near the incision, fever and chills. The “pin-point opening” had developed into an abscess. A doctor drained the abscess, and the fluid tested positive for a methicillin-sensitive Staphylococcus aureus bacterial infection 3 —some five months post operation.

On September 3, 2014, Mr. Armacost filed a statement of claim with the Health Care Alternative Dispute Resolution Office. Mr. Armacost waived arbitration, and on November 3, 2014, he sued Dr. Davis and GBMC for malpractice and a failure to obtain informed consent. At trial, Mr. Armacost’s expert witness testified that the fusion procedure performed on Mr. Armacost, although performed well, 4 was not medically necessary and was not appropriate for someone of Mr. Armacost’s age and overall health condition. The same expert also told the jury that Dr. Davis and other members of GBMC’s staff were too slow in diagnosing and treating Mr. Armacost’s post-operative infection.

Dr. Davis’s experts, on the other hand, testified that Dr. Davis had complied with the standard of care in determining that Mr. Armacost was a candidate for the fusion surgery and that Dr. Davis had obtained Mr. Armacost’s informed consent to the operation after appropriate disclosures. An infectious diseases expert testified that Mr. Armacost’s infection, diagnosed in ⁸¹ mid-August, had been present for only a couple of weeks before it was caught; in other words, it hadn’t been lingering for months, undetected by Dr. Davis’s staff. 5 The jury was excused for deliberation in the afternoon of May 23, 2016. On May 26, the jury returned a verdict for Dr. Davis on the informed consent issue but for Mr. Armacost on the malpractice issue, awarding him $329,000 in damages. Dr. Davis appeals from that judgment, challenging parts of the initial instructions and the court’s supplemental instruction given in response to a note from the jury.

The content and context of those instructions are discussed in detail below. ANALYSIS I. The standard-of-care instructions The first part of Dr. Davis’s appeal focuses on the court’s instructions to the jury at the close of the five-day trial. One instruction combined the substance of Maryland Civil Pattern Jury Instructions 19:1 (defining negligence) and 19:3 (explaining the general-negligence concept of foreseeable circumstances) (emphasis added): Negligence is doing something that a person using reasonable care would not do, or not doing something that a person using reasonable care would do. Reasonable care means that caution, attention or skill a reasonable person would use under similar circumstances.

A reasonable person changes conduct according to the circumstances and the danger that is known or would be appreciated by a reasonable person. Therefore, if the foreseeable danger increases, a reasonable person acts more carefully.[ 6 ] ⁸² The trial court also instructed the jury on 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.[ 7 ] After all the instructions were given, Dr. Davis objected: [Defendant’s Counsel[ 8 ]: I respectfully except to your decision to give the model pattern jury instruction 19:3, foreseeable circumstances.... I believe giving the foreseeable circumstances instruction confuses the notion of whether or not Doctor Davis had to see into the future as to what may or may not happen with Mr. Armacost and therefore had a heightened duty to act in a different way.... The question for Doctor Davis in this case is ... was he negligent, did he do a surgery that wasn’t indicated, did he fail to advise the Plaintiff about the surgery, and did he fail to properly appreciate the signs and symptoms of infection postoperatively.

There are no facts in this case which would suggest that Doctor Davis had any duty beyond the normal standard that would apply to a health care professional.... The Court: Why don’t we do this, it’s 10:05 and the jury— [Defendant’s Counsel]: I’m done. The Court: Good. Okay. * * * ⁸³ [Plaintiffs Counsel]: In responding to that, Your Honor, I think that the— The Court: I don’t need you to respond to that. [Plaintiffs Counsel]: Very well.

We have no exceptions for the Plaintiff. The Court: Okay. All right. One divisive issue.

The court did not otherwise respond to Dr. Davis’s objection or modify the instructions. After the instructions were given to the jury, trial counsel gave their closing arguments. During the plaintiffs closing argument, counsel made the following comment to the jury (emphasis added): What do you look to if you want to ignore all of the expert testimony? You could do that in this case.

It is your right [to] credit what you want to credit and ignore what you want to ignore. The jury was sent to deliberate with a printed copy of the court’s instructions and a verdict sheet to guide deliberation. The questions on the verdict sheet relevant to this appeal read as follows: 1. Do you find that [Dr. Davis], and [GBMC] as his employer, were negligent in their treatment of [Mr. Armacost]? 2.

Do you find the negligence of [Dr. Davis], and [GBMC] as his employer, caused injury to [Mr. Armacost]? The jury answered both questions affirmatively. Dr. Davis argues that the trial court committed reversible error by giving the foreseeable circumstances instruction, prejudicially heightening the duty owed to the plaintiff patient, Mr. Armacost. According to Dr. Davis, the contested instructions, sounding in general negligence, modified the standard of care to which Dr. Davis was expected to adhere, inviting the jury to compare his conduct to that of a reasonable person without his specialized knowledge or skill.

Dr. Davis contends that instructing the jury about foreseeable circumstances permitted the jury to speculate about inapplicable legal principles ⁸⁴ and implied there was some type of foreseeable danger that required Dr. Davis to change his conduct accordingly. Mr. Armacost’s response is straightforward: The instructions given were correct because the general rules of negligence apply to malpractice claims, which sound in negligence. Because the instructions were not erroneous, Mr. Armacost argues, they could not be prejudicial. 9 We hold 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 Dr. Davis. A. The standard of review “We review a trial judge’s decision whether to give a jury instruction under the abuse of discretion standard.” CSX Transp., Inc. v. Pitts, 430 Md. 431, 458 , 61 A.3d 767 (2013) (citing Conyers v. State, 354 Md. 132, 177 , 729 A.2d 910 (1999)).

Error will be found if the given instruction is not supported by evidence in the case. Rustin v. Smith, 104 Md.App. 676, 680 , 657 A.2d 412 (1995). However, the court will only overturn a jury verdict and grant a new trial based on an erroneous instruction if the appealing party can show that it rises to the level of prejudicial error. Fry v. Carter, 375 Md. 341, 355 , 825 A.2d 1042 (2003).

B. The general negligence instructions were erroneous. It is true, as Mr. Armacost notes in his brief, that “the general principles which ordinarily govern in negligence cases ⁸⁵ also apply in medical malpractice claims.” Shilkret v. Annapolis Emergency Hosp. Ass’n, 276 Md. 187, 190 , 349 A.2d 245 (1975) (citing Benson v. Mays, 245 Md. 632, 636 , 227 A.2d 220 (1967)). As in other negligence cases, a plaintiff alleging medical malpractice must prove the standard elements of a negligence case—among other things, a breach of duty or a lack of the requisite skill or care on the part of the defendant physician or other health care provider.

Univ. of Md. Med. Sys. Corp. v. Gholston, 203 Md.App. 321, 330 , 37 A.3d 1074 (2012). However, “whereas the conduct of the average layman charged with negligence is evaluated in terms of the hypothetical conduct of a reasonably prudent person acting-under the same or similar circumstances, the standard applied in medical malpractice cases must also take into account the specialized knowledge or skill of the defendant.” Shilkret, 276 Md. at 190-91 , 349 A.2d 245 (1975) (citing W. Prosser, Torts 32 (4th ed. 1971)).

That is why Maryland law has maintained, since the 1889 decision of State v. Housekeeper, a separate standard of care in medical negligence cases, expecting of doctors “[t]hat reasonable degree of care and skill which physicians and surgeons ordinarily exercise in the treatment of their patients.” 70 Md. 162, 172 , 16 A. 382 (emphasis added). Modem formulations require that physicians “exercise the degree of care or skill expected of a reasonably competent health care provider in the same or similar circumstances.” Crise v. Maryland General Hosp., Inc., 212 Md.App. 492, 521 , 69 A.3d 536 (2013) (emphasis added). 10 The reason for the distinction between the standards was made clear in Marcus Z. Shar & David E. Manoogian, The Medical Malpractice Law of Maryland 3 (2d ed. 1992): ⁸⁶ As members of a “learned profession” doctors are expected to possess knowledge and skill in the context of their vocation surpassing that of other “reasonable men,” and are therefore expected to conduct themselves in conformity with that heightened experience and training. [T]he law prohibits courts or juries from dictating how medicine is to be practiced on the basis of what might “seem right.” Proof of medical negligence must therefore differ somewhat from the traditional “reasonable man” standard applicable to tort actions generally. Because of this special standard of care, expert testimony is essential in almost all medical malpractice claims to determine whether a doctor has been negligent. DeMuth v. Strong, 205 Md.App. 521, 539 , 45 A.3d 898 (2012) (citing Brown v. Meda, 74 Md.App. 331, 342 , 537 A.2d 635 (1988)).

Expert testimony is not required in only the rarest of cases in which the average juror can determine independently that the physician was negligent—by amputating the wrong leg, for example. DeMuth, 205 Md.App. at 539 , 45 A.3d 898 . This is because medical malpractice cases are usually more complex than general negligence claims. Puppolo v. Adventist Healthcare, Inc., 215 Md.App. 517, 534 , 81 A.3d 620 (2013) (citing Barnes v. Greater Baltimore Medical Center, Inc., 210 Md.App, 457, 481, 63 A.3d 620 (2013)). “[T]o ask the jury to go beyond professional standards to determine whether it was reasonable for the defendant to follow a particular medical course of treatment would in effect ask for the jury’s medical judgment—something that no member of the jury is likely to be capable of giving” without the aid of expert medical testimony.

Kenneth S. Abraham, The Forms and Functions of Tort Law 82 (4th ed. 2012). No reported Maryland appellate opinion has explicitly addressed the suitability of general negligence or foreseeable circumstances instructions in medical negligence cases. But courts in other states presented with the issue have decided that instructions on ordinary care, foreseeability of risk and other general negligence principles muddle or misstate the applicable standard of care in malpractice cases. For example, ⁸⁷ in Hales v. Pittman, 118 Ariz. 305 , 576 P.2d 493, 498 (1978), the Supreme Court of Arizona affirmed the trial court’s refusal to give jury instructions framed in terms of ordinary care, “as required of laymen,” in a medical malpractice case. “[T]he physician incurs liability because of his breach of the standard of care applicable to physicians on account of their special knowledge.” Id.

What constitutes “reasonable care” is already covered by instructions “framed in terms of the skill and learning of a neurosurgeon.” Id. Similarly, in Cromer v. Children’s Hosp. Med. Ctr. of Akron, 142 Ohio St.3d 257 , 29 N.E.3d 921, 931 (2015), the Supreme Court of Ohio found that a trial court erred when it gave jury instructions on foreseeability of harm in a medical malpractice case. “[I]n most medical negligence cases, [the] foreseeability of a risk of harm related to the medical treatment is conceded, leaving no need for a jury instruction on foreseeability.” Id. at 934.

Even if foreseeability of harm were at issue in the case, the court maintained, it would still be “inappropriate to view foreseeability in terms of a layperson’s ‘ordinary’ standard of care.” Id. at 933. The jury should not have been given an instruction comparing the doctors’ conduct to that of “a reasonably careful person.” Id. For these reasons, it is wrong to instruct juries “that a greater risk to the patient creates a higher duty in the physician.” 1 David W. Louisell and Harold Williams, Medical Malpractice § 8.04(l)(a) (Gordon L. Ohlsson ed., 2017). Those authors point to two representative decisions.

The Ohio Court of Appeals held in Hinkle v. Cleveland Clinic Found., 159 Ohio App.3d 351 , 823 N.E.2d 945, 960 (2004), that no case law would justify giving an instruction on “greater danger” in a medical malpractice case. The Supreme Court of South Carolina agreed in Pittman v. Stevens, 364 S.C. 337 , 613 S.E.2d 378 (2005), holding such an instruction “inappropriate” in medical malpractice cases because “[e]very medical decision encompasses varying degrees of danger. Id. at 381 . By including Maryland Civil Pattern Jury Instruction 19:3 in the jury’s charge, the trial court three times invited the jury ⁸⁸ to determine whether Dr. Davis was negligent by invoking the conduct and perception of a “reasonable person” instead of the accepted practice among Dr. Davis’s similarly skilled peers.

This 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 appropriate standard of care for Dr. Davis (Maryland Civil Pattern Jury Instruction 27:1)— also given by the court—already takes account of the risks involved in the decision to operate and in any post-operative treatment. The standard also rightly asks jurors to consider how a physician—not the average reasonable person—responds to those risks. Medical 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. C. The general negligence instructions were also prejudicial. As noted above, even if an instruction given to the jury is deemed erroneous, this court will overturn a jury verdict and grant a new trial based on an erroneous jury instruction “only if it rises to the level of prejudicial error.” CSX Transp., Inc. v. Pitts, 430 Md. 431, 458 , 61 A.3d 767 (2013). To be prejudicial, an erroneous instruction must be “misleading or distracting for the jury” or permit the jury to “speculate about inapplicable legal principles.” Barksdale v. Wilkowsky, 419 Md. 649, 669-70 , 20 A.3d 765 (2011) (citing Fry v. Carter, 375 Md. 341, 355 , 825 A.2d 1042 (2003)).

There are no “[p]recise standards for the degree of prejudice required for reversal,” Beahm v. Shortall, 279 Md. 321, 331 , 368 ⁸⁹ A.2d 1005 (1977). Nevertheless, to evaluate how prejudicial an erroneous instruction might have been, a reviewing court may consider, among other things, (1) how the appellee’s argument to the jury “may have contributed to the instruction’s misleading effect,” (2) whether the jury asked for a rereading of the erroneous instruction and (3) the effect of other instructions in remedying the error. Barksdale, 419 Md. at 669 , 20 A.3d 765 (quoting Nat’l Med. Transp.

Network v. Deloitte & Touche, 62 Cal.App.4th 412 , 72 Cal.Rptr.2d 720, 731 (1998)) (internal quotation marks removed). The reviewing court focuses its inquiry “on the probability, not the possibility of prejudice.” Flores v. Bell, 398 Md. 27, 33 , 919 A.2d 716 (2007). But definitive proof of prejudice is not required. “The mere uncertainty as to prejudice may be grounds for holding an error is reversible.” Barksdale, 419 Md. at 667 , 20 A.3d 765 (citing Flores, 398 Md. at 35 , 919 A.2d 716 , and Roger J. Traynor, The Riddle of Harmless Error 64 (1970) (observing that an error “can be declared prejudicial for the simple reason that the court is unable to declare a belief one way or the other as to the probable effect of the error on a particular judgment.”)). This approach is especially apt in cases in which the form of the jury’s verdict makes it difficult—if not impossible—for a reviewing court to decide whether the erroneous instruction was relied upon in reaching that verdict.

See Fry, 375 Md. at 356 , 825 A.2d 1042 . This is because “a court cannot ‘unbake’ the jury verdict and examine the impact of any one ingredient.” Barksdale, 419 Md. at 665 , 20 A.3d 765 . The Court’s analysis in Barksdale is instructive as we assess the prejudicial effect of the instructions in the present case. In Barksdale , the plaintiff sued the owners of her childhood home, claiming she had been injured by lead paint on the premises.

The Court of Appeals held an instruction given at trial, on a tenant’s duty to keep a dwelling “clean and sanitary,” was erroneous because it “was not relevant to the issues before the jury, i.e., whether the landlord was negligent or engaged in deceptive trade practices in renting the Proper ⁹⁰ ty.” Id. at 655-56 , 20 A.3d 765 . The instruction was prejudicial because it suggested that the plaintiffs grandmother, who rented the home from the defendant, may have been eontribu-torily negligent for failing to report flaking paint to her landlord. Whether the grandmother had been negligent was not an issue before the jury, however, because the grandmother’s failure to report the flaking paint could not be attributed to the child, who was also too young to have had any duty to report at that time. The error “touched on the heart of the case,” by inappropriately apportioning blame for Barksdale’s injury, and thus warranted a reversal of the judgment for the defendants.

Id. at 672 , 20 A.3d 765 . Among the authorities relied upon by the Barksdale Court was a Minnesota case that, like this appeal, dealt with conflicting standards of care given in jury instructions. In Lindstrom v. Yellow Taxi Co. of Minneapolis, 298 Minn. 224 , 214 N.W.2d 672 (1974), a suit for damages brought by injured passengers in a taxi cab, the trial court gave jury instructions that combined an inapplicable general negligence “reasonable care” standard with the correct “highest degree of care” standard applied to Minnesota common carriers, like the defendant taxi company. Id. at 674.

Even though the trial court later withdrew its instructions on the “reasonably-prudent-person standard of care,” it ended up granting the plaintiffs’ motion for a new trial. Id. The Minnesota Supreme Court affirmed that grant because “repeated references” to the ordinary-care standard, in the court’s words, “permeated” the jury’s charge and “failed to convey clearly to the jury the single standard of care applicable to a common carrier.” Id. at 677. Application of this case law leads us to conclude that the erroneous instructions in the present case were prejudicial.

The general negligence instructions struck at the heart of the case, viz., Dr. Davis’s liability, and permitted speculation about inapplicable legal principles (the hypothetical conduct of a reasonable person in the face of foreseeable harm). The concept of reasonable care as decided by ordinary people, “permeated” the charge given to the jury and left the jurors with two distinct standards against which Dr. Davis’s conduct was ⁹¹ to be measured: that of a “reasonable person” and that of a “reasonably competent health care provider engaged in a similar practice and acting in similar circumstances.” Jurors were also asked to consider whether Dr. Davis had failed to consider some set of risks or to adapt his behavior to them— an issue, like contributory negligence in Barksdale , that was not raised by the evidence at trial. The misleading effect of the instruction was compounded by comments in Mr. Armacost’s closing arguments inviting the jurors to disregard the expert testimony needed to establish the appropriate standard of care. 11 Our concerns about juror speculation beyond the bounds permitted by the proper standard of care for health care professionals were not allayed by the following exchange between this Court and appellee’s counsel at oral argument (emphasis added): The Court: If the medical health care provider instruction encompasses a duty to consider the patient’s preexisting health condition as part of the standard of care and skill, then how [is] the 19:3 instruction ... pertinent to what the jury is supposed to do? What legal principle does it add to the ... standard instruction for a medical malpractice case?

Appellee: [I]t helps the jury to understand this idea of what is reasonable care. It is an additional piece of information for jurors who don’t in their everyday lives think about what is reasonable care and what is reasonable care under the circumstances. The Court: [AJre you saying that it allows them to make an assessment about reasonableness outside of what the experts have testified to? ⁹² Appellee: It allows them to make an assessment of reasonableness based on the evidence, which is what we asked them to do. The Court: [Ajnswer my question.

Appellee: The answer to your question is yes because that’s what we ask them to do. Additionally, while the erroneous instruction was not reread for the jury, a printed version of the erroneous instruction accompanied the jury during its deliberations. And the other instructions given, orally and in print, did not remedy the error. The trial judge gave the proper standard of care only once.

In total, the “reasonably competent health care provider” was mentioned one time in the instructions, while the “reasonable person” was named four times. We are further inclined to find