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Reasonable-doctor test applies in medical-malpractice cases, Md. court says

‘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,’ Court of Special Appeals Judge Christopher B. Kehoe wrote last week in tossing a Baltimore County jury verdict. (Maximilian Franz/The Daily Record)

‘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,’ Court of Special Appeals Judge Christopher B. Kehoe wrote last week in tossing a Baltimore County jury verdict. (Maximilian Franz/The Daily Record)

Jurors in medical-malpractice cases must determine not how a reasonable person would have treated the patient but what a reasonable physician in the relevant specialty should have done, Maryland’s second-highest court has held in overturning a verdict against a neurosurgeon.

While the “reasonable person” standard is generally appropriate in assessing negligence in personal-injury cases, specialized fields in medicine requires a heightened standard that respects the skill of doctors, the Court of Special Appeals said in its reported opinion last week.

In its 3-0 decision, the appellate court also faulted the trial judge as being “unduly coercive” for sending the then-deadlocked jury back to conclude deliberations in an hour.

The Court of Special Appeals ruled Baltimore County Circuit Judge Susan Souder gave an improper “reasonable person” instruction to the jury that later found neurosurgeon Reginald Davis needlessly and inappropriately removed damaged discs from Mark Armacost’s cervical spine as part of fusion surgery. Armacost, who developed a bacterial infection following the controversial surgery, was awarded $329,000 in damages.

Davis then sought review by the Court of Special Appeals, successfully challenging the jury instructions and the one-hour directive.

“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,” Judge Christopher B. Kehoe wrote for the court.

“The law is clear that the jury was supposed to evaluate Dr. Davis against his peers,” Kehoe added in sending the case back for a retrial. “But the erroneous instructions from the trial judge and the invitation from (Armacost’s) experts permitted a jury not made up of neurosurgeons to impermissibly speculate about how they would have approached the risk attendant in a four-level anterior cervical discectomy and fusion surgery.”

Armacost’s attorney said Thursday he plans to seek review by the Court of Appeals, arguing the general negligence standard applies in medical-malpractice cases.

“We believe that this decision by the Court of Special Appeals quite clearly departs from established Maryland law and the Court of Appeals will need to have the final word,” added George S. Tolley III, of Dugan, Babij, Tolley & Kohler LLC in Timonium.

Davis’ attorney, J. Jonathan Schraub, praised the Court of Special Appeals for recognizing the actions of doctors in malpractice cases must be measured against “a medical doctor in the same specialty under the same conditions.”

The judge’s instructions regarding a reasonable person in medical malpractice cases are important to a fair verdict, he said.

“You can’t deconstruct a jury, so you never know what they do when the door closes, but hopefully they follow the instructions of the court,” added Schraub, of Sands Anderson in McLean, Virginia. “I believe in most cases they try very hard to.”

The appellate court’s call for a new trial also followed its criticism of Souder’s request that the jury render its verdict within an hour after the jurors had been deliberating for three days and had announced they were deadlocked.

The judge’s apparent deadline “may have, albeit not intentionally, sent the signal to the jury that it was more important to be quick than to be thoughtful,” Kehoe wrote. “The clock, and not the reasoned judgment of each individual juror, was made to control the deliberation.”

Tolley said Souder’s comments about finishing deliberations in an hour were not unduly coercive. The judge was not setting an absolute deadline for deliberations but merely telling the jury how much longer they would have to stay before breaking for the day, Tolley added.

Battle of experts

The case arose in 2012 when Davis’ medical opinion was sought by Armacost, who was suffering from years of neck and shoulder pain and recent numbness in his right hand. Davis, chief neurosurgeon at the Greater Baltimore Medical Center, recommended and later performed the discectomy and fusion surgery that preceded the bacterial infection.

At trial, Armacost’s medical experts testified that the procedure was not medically necessary and inappropriate based on his age and overall health. Davis’s experts countered that the doctor complied with the standard of care.

But the Court of Special Appeals said Souder’s reasonable-person instruction inappropriately turned what should have been a battle of medical experts into a routine personal-injury trial.

“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,” Kehoe wrote. “Accordingly, we hold that the trial court erred in giving general negligence instructions in a medical malpractice case.”

Kehoe was joined in the opinion by Judges Deborah S. Eyler and Lawrence F. Rodowsky, a retired judge sitting by special assignment.

The Court of Special Appeals rendered its decision in Reginald J. Davis v. Mark Armacost, No. 822 September Term 2016.


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