Maryland’s top court has reinstated a $329,000 medical malpractice verdict after concluding that the trial judge’s failure to instruct the jury clearly about a doctor’s heightened standard of care in a personal injury case did not affect the jurors’ decision.
While the judge’s instruction conflating the reasonable person and reasonable doctor standards might have been unclear, it neither misled the jurors nor denied the doctor, neurosurgeon Reginald Davis, a fair trial, the Court of Appeals unanimously held Friday.
The case arose in 2012 when Davis’ medical opinion was sought by patient Mark Armacost, who had suffered from neck and shoulder pain as well as numbness in his right hand. Davis, chief neurosurgeon at the Greater Baltimore Medical Center, recommended and later performed a discectomy and fusion surgery. Armacost developed a bacterial infection after the operation.
In its decision, the high court reversed a Court of Special Appeals ruling that Baltimore County Circuit Judge Susan Souder had improperly instructed the jury to determine how a “reasonable person” would have treated the patient rather than how a reasonable neurosurgeon would have done so.
The Court of Appeals said the litigation concerning Davis’ removal of damaged discs from Armacost’s cervical spine focused entirely on the standard of care expected not by a reasonable person, but by a reasonable neurosurgeon, further reducing jurors’ likelihood of being confused about their instructions in rendering a verdict.
In addition, the high court said the jury’s application of the reasonable person standard helped the doctor. The high court said that standard is more difficult for a patient to meet than the reasonable doctor test because physicians are expected to have more expertise and thus are less likely to be negligent.
“Dr. Davis posits that the jury may have applied a ‘reasonable lay person’ standard (even though the trial court specifically instructed them to the standard applicable to physicians like Dr. Davis) – a lower standard of care,” Judge Robert N. McDonald wrote for the court. “If so, it could only have redounded to Dr. Davis’ benefit, not to his detriment, as it would be less demanding of a defendant than the professional standard of care.”
Davis’ attorney, J. Jonathan Schraub, criticized the court’s decision, saying it “opens the door to continued confusion about the applicable standard of care in a medical malpractice case.”
Armacost’s attorney, Alison D. Kohler, did not respond to a telephone message seeking comment Monday. Kohler is with Dugan, Babij, Tolley & Kohler LLC in Timonium.
McDonald was joined in the opinion by Chief Judge Mary Ellen Barbera, Clayton Greene Jr., Shirley M. Watts and Sally D. Adkins, a retired judge siting by special assignment.
In a concurring opinion, Judge Michele D. Hotten said that “the reasonable person standard is less demanding than the heightened ‘reasonably competent healthcare provider’ standard applicable to a healthcare practitioner.”
Hotten, who was joined by Judge Joseph M. Getty, added that, “if anything, application of a reasonable person standard would serve to prejudice Mr. Armacost, not Dr. Davis.”
In its decision, the high court also overturned, by a 5-2 vote, the Court of Special Appeals’ ruling in the case that Souder had coerced the jurors into a verdict by telling them on the third day of deliberations that they would be required to deliberate for only another hour.
Rather than being coercive, the judge’s “advising the jury as to its schedule was respectful of the jury’s time and of external concerns that might distract jurors from their responsibility to deliberate,” McDonald wrote for the high court majority.
Hotten, however, dissented from the Court of Appeals ruling, saying that Souder’s statement to the jurors was a coercive “deadline.”
“A trial judge certainly has the ability to keep the jury informed of their time commitment,” Hotten stated in the dissent that Getty joined. “However, the trial judge may not use that information in a manner that coerces the jury into reaching a verdict prematurely.”
At trial, Armacost’s medical experts testified that the surgical procedure was not medically necessary and was inappropriate based on the patient’s age and overall health. Davis’ experts countered that the doctor had 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,” Judge Christopher B. Kehoe wrote for the intermediate court. “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 Deborah S. Eyler and Lawrence F. Rodowsky, a retired judge sitting by special assignment.
Armacost then sought review by the Court of Appeals.
The high court rendered its decision in Mark Armacost v. Reginald J. Davis, No. 69 September Term 2017.