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Patients’ pre-care conduct irrelevant in med-mal cases, Md. court says

Judge Peter Krauser (File)

‘(T)he pre-treatment negligence of a patient is irrelevant in determining whether a physician is liable for violating the standard of care in rendering medical services to that patient,’ Judge Peter B. Krauser wrote for the Court of Appeals in finding a Frederick doctor could not argue a patient’s delaying treatment contributed to an injury during a later surgery. (File)

Patients’ mistreatment of themselves before seeking medical care cannot later serve as a doctor’s defense against a malpractice claim, Maryland’s second-highest court ruled last week.

A patient’s action – or inaction – before treatment is irrelevant to the ultimate issue in a malpractice case of whether the doctor deviated from the standard of care and caused injury, the Court of Special Appeals stated in its reported 3-0 decision.

“Our appellate courts have upheld the submission of a contributory negligence issue to a jury, in medical malpractice cases, but only where there is evidence adduced that the plaintiff (patient) 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,” Judge Peter B. Krauser wrote for the appellate court. “(T)he pre-treatment negligence of a patient is irrelevant in determining whether a physician is liable for violating the standard of care in rendering medical services to that patient.”

The court’s decision revived a man’s claim that a Frederick doctor caused grievous injury after negligently nicking a bile duct while removing his gallbladder. Dr. Tanisha Osbourne’s attorney had argued successfully during trial that Joao Barbosa’s failure to seek medical care sooner — despite being in severe pain — contributed to the flawed surgery.

But because a patient’s pre-treatment negligence is irrelevant, the Frederick County Circuit Court was wrong to permit Osbourne’s attorney to present a defense that Barbosa was contributorily negligent, the appellate court said.

The appeals court also deemed it irrelevant the jury did not expressly find Barbosa contributorily negligent in its conclusion Osbourne had not deviated from the standard of care in the surgery to remove the gall bladder.

Defense counsel had made Barbosa’s delay in seeking treatment such a principal focus of the case in opening statements and closing arguments, as well as with expert testimony, that jurors could not have disregarded the patient’s actions prior to treatment in concluding Osbourne was not liable, the court added.

“In other words, the jury was, in effect, at every turn urged by the defense that, in determining whether Dr. Osbourne had been negligent, it must first consider the circumstances engendered by Mr. Barbosa’s failure to pursue treatment,” wrote Krauser, a retired judge who participated in the decision by special assignment. “The defense thereby invited the jury to consider Mr. Barbosa’s negligence in deciding the very first question on the special verdict form, namely, whether Dr. Osbourne had deviated from the standard of care.”

Barbosa’s attorney, Abby Graber, hailed what she called “a really important ruling for patients in Maryland.”

Doctors defending themselves against medical malpractice claims “cannot blame the patient” for a delay in seeking medical care, Graber said Monday.

“Doctors are signed up to treat people who are sick and that’s what the court is recognizing,” added Graber, of Brown, Goldstein & Levy LLP in Baltimore.

Osbourne’s appellate attorney, Crystal S. Deese, did not return telephone or email messages Monday seeking comment on the ruling and any plans to seek review by the Court of Appeals. Deese is with Jackson & Campbell PC in Washington.

11 days

Barbosa went to Frederick Memorial Hospital on June 12, 2013, with severe and persistent abdominal pain but he voluntarily left before tests ordered by an emergency room doctor could be performed. He returned to the hospital 11 days later, saying the pain had worsened and he was having trouble eating and sleeping, according to the Court of Special Appeals’ opinion.

An ultrasound scan showed Barbosa was suffering from an inflamed gallbladder. Osbourne performed laparoscopic surgery to remove the gallbladder, during which she allegedly nicked the bile duct.

Defending against the malpractice claim, Osbourne’s counsel told the jury that “the injuries we are here for today would not have existed” had Barbosa not left the hospital June 12. Counsel also presented medical experts to support that inappropriate argument, the appellate court said in sending the case back for a new trial.

Chief Judge Patrick L. Woodward and Judge Dan Friedman joined Krauser’s opinion in Joao Barbosa v. Tanisha Osbourne, No. 1258 September Term 2015.


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