Copsey v. Park , 228 Md. App. 107 ( 2016 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 2170
September Term, 2014
______________________________________
JENNY J. COPSEY, ET AL.
v.
JOHN S. PARK, M.D., ET AL.
______________________________________
Krauser, C.J.,
Nazarian,
Reed
* Judge Timothy Meredith did not
participate, pursuant to Md. Rule 8-
605.1, in the Court’s decision to report
this opinion.
JJ.
_____________________________________
Opinion by Reed, J.
______________________________________
Filed: May 31, 2016
This case involves a medical malpractice action by the wife, minor daughters, and
mother of Lance Copsey, deceased, against John S. Park, M.D. The appellants assert that
Dr. Park negligently misread Mr. Copsey’s MRI/MRA six days before he suffered a
massive, and ultimately fatal, stroke. Over the appellants’ objections, the trial court
permitted Dr. Park to present evidence of negligence by subsequent treating physicians and
instructed the jury on superseding cause. In the end, however, the jury did not reach the
question of superseding cause because they found Dr. Park’s reading of the MRI/MRA
non-negligent (i.e., that Dr. Park was not an actual, much less a proximate, cause of Mr.
Copsey’s death). Appellants timely appealed and present a single question for our review,
which we rephrased:1
1. Did the circuit court err in admitting evidence of the negligence
of subsequent treating physicians and instructing the jury on
superseding causation?
For the following reasons, we answer this question in the negative. Therefore, we affirm
the judgment of the circuit court.
FACTUAL AND PROCEDURAL BACKGROUND
On February 4, 2010, Mr. Copsey presented to the emergency room of the Anne
Arundel Medical Center following an incident on a racquet ball court in which he fell and
1
Appellants presented the following question verbatim:
1. Did the trial court err by admitting evidence of the negligence of subsequent
treating physicians and instructing the jury on superseding causation, where
such concurring negligence resulted in an indivisible injury (death) and could
not have amounted to a superseding cause, as a matter of law?
1
hit the back of his head. He did not lose consciousness in connection with the fall, but
nevertheless complained of nausea and headaches. He was released after being treated and
undergoing a head CT scan, which was reported as normal.
Mr. Copsey presented to the Anne Arundel Medical Center emergency room again
on May 26, 2010. He indicated that he had been experiencing intermittent, minutes-long
episodes of dizziness since that morning. Another CT scan was performed on his head, but
again the results were normal. Therefore, he was instructed to call his internal medicine
physician the next day to schedule a “close” follow-up appointment and to return to the
emergency room should his symptoms worsen.
Mr. Copsey was seen by his primary care physician, Aditya Chopra, M.D., on June
1, 2010. In addition to complaining of difficulty walking, nausea, and headaches, he
indicated that the vertigo he began experiencing on the day he last presented to the
emergency room had not gone away. Dr. Chopra prescribed Meclizine and a Z-Pack,
suggested a follow-up with an ear, nose, and throat doctor should the symptoms not
improve, and advised consulting an ophthalmologist. In accordance with Dr. Chopra’s
advice, Mr. Copsey consulted ophthalmologist Ross D. Elliott, M.D., on June 2, 2010. Dr.
Elliott determined there was no ophthalmological etiology for Mr. Copsey’s symptoms
and, in turn, recommended both a neurologic consultation and a neuroradiologic
evaluation. These were performed on June 4, 2010, by Dr. Chopra, who found multiple
abnormalities consistent with central nervous system involvement and sent Mr. Copsey
promptly to the emergency room.
2
Per Dr. Chopra’s advice, on the afternoon of June 4, 2010, Mr. Copsey presented
back to the emergency room of the Anne Arundel Medical Center. He complained of
vertigo of approximately a week’s duration and also reported experiencing numbness in
the right side of his face, right arm, and right leg, headaches, mild shortness of breath,
minutes-long episodes of double vision, and trouble walking. Mr. Copsey’s initial
emergency room evaluation was performed by Charles Iliff, M.D., who then consulted with
neurologist Larry Blum, M.D. It was decided that a head CT scan and a brain MRI/MRA
would be performed.
The CT scan and MRI/MRA were interpreted on June 4, 2010, at 4:02 p.m. and 6:45
p.m., respectively, by the named appellee, John S. Park, M.D. Dr. Park’s impressions were
of a normal non-contrast head CT and brain MRI and a normal intracranial MRA.
Specifically, regarding the CT scan, MRA, and MRI, correspondingly, he found:
There is no evidence of acute intracranial hemorrhage,
infarction, mass effect, or midline shift. No abnormal
extraaxial fluid collections are identified. The ventricles, sulci,
and cisterns are normal. There is no acute injury to the skull
base or calvarium.
***
There is normal anatomy of the circle of Willis with no
evidence of aneurysm, anteriovenous malformation, or
abnormal vessel cut-off. No hemodynamically significant
stenosis is identified. Incidental note is made of fenestration of
the left vertebral artery.
***
There is no evidence of acute intracranial hemorrhage,
infarction, mass effect, or midline shift. No abnormal
extraaxial fluid collections are identified. The ventricles, sulci,
3
and cisterns are normal. The flow voids at the skull base are
normal. There is no acute injury to the skull base or calvarium.
Dr. Blum later reviewed the MRI and MRA images interpreted by Dr. Park and confirmed
they did not reveal any abnormalities. In fact, Dr. Blum suspected Mr. Copsey’s symptoms
were merely sequelae of migraine equivalents. Mr. Copsey was diagnosed with migraines,
cluster migraines, vertigo, hypercholesterolemia, and mildly elevated blood pressure, but
it was also noted on his discharge summary dated June 6, 2010, that he was “otherwise
doing fine.”
Mr. Copsey was seen by Dr. Chopra for an outpatient evaluation on June 7, 2010.
Mr. Copsey reported having no chest pain, dizziness, shortness of breath, cough, nausea,
vomiting, diarrhea, constipation, aches or pains, headache, or burning urination. Dr.
Chopra noted no neurological deficit and instructed Mr. Copsey to return to the emergency
room and/or follow up with Dr. Blum should his symptoms return, which they did the very
next day. Therefore, on June 9, 2010, Mr. Copsey returned to Dr. Blum for a follow-up
evaluation.
At his follow-up on June 9, Mr. Copsey reported the return of his diplopia, or double
vision, and headaches, and also indicated that he had begun experiencing hiccups and
trouble swallowing for the first time. The onset of the latter two of these symptoms was
particularly concerning to Dr. Blum. Therefore, he ordered another brain MRI, this time
requesting an urgent interpretation.
4
Mr. Copsey proceeded directly to the Anne Arundel Medical Center where this, the
second MRI of his brain, was performed. Vijay Viswanathan, M.D., interpreted the image
and concluded the following:
1. Ill-defined new band-like signal abnormality within the
right lateral medulla which is nonspecific but is concerning
for acute infarction. This is a new finding since the prior
study dated June 4, 2010.
2. This could be suggestive of lateral medullary
syndrome/Wallenberg syndrome.
3. Left vertebral artery abnormal flow void which is
nonspecific. It is difficult to appreciate the connection
between right medullary abnormality and left vertebral
artery abnormality. Clinical correlation advised.
4. No evidence of intraorbital pathology.
Dr. Viswanathan interpreted the MRI at 4:02 p.m. and dictated his report at approximately
4:42 p.m. However, he did not notify the on-call neurologist, Damanhuri Alkaitis, M.D.,
of his findings until approximately 10:30 p.m. Dr. Blum recounted this delay in a hospital
note dated June 10, 2010, the day after the MRI was performed, as follows: “I had noted
in my requisition that I requested an urgent call-back from the radiologist, but that did not
transpire.” Dr. Blum could have, however, accessed Dr. Viswanathan’s impression earlier
either by logging into the Medical Center’s computer database or following up with the
radiology department. Instead, he opted to review the MRI films himself, which he did at
approximately 6:00 p.m. His interpretation of the films was that “[t]he MRI scan did not
disclose [any] abnormalities.” Therefore, he sent Mr. Copsey home for the night.
Mr. Copsey had already been sent home by the time Dr. Viswanathan notified Dr.
Alkaitis of the MRI results at 10:30 p.m. on June 9, 2010. Dr. Alkaitis did not take any
action regarding the results that night, nor did anyone advise Mr. Copsey that a lateral
5
medullary infarct had been discovered. At approximately 4:00 a.m. on June 10, 2010, Mr.
Copsey awoke to use the bathroom and suffered a major stroke. His wife found him lying
on the floor unable to get up and had him rushed to the Anne Arundel Medical Center
emergency room, where he arrived at approximately 5:44 a.m. A promptly-performed brain
CT scan showed a right medullary hypodensity indicative of an acute stroke. Mr. Copsey’s
already poor condition deteriorated considerably at approximately 11:00 a.m. on June 10,
2010. He was subsequently transferred to Johns Hopkins Hospital, where, on the morning
of June 11, 2010, after receiving an angioplasty and stent in his right vertebral artery, he
became unresponsive with pinpoint pupils, no corneal or gag reflexes, and lack of
movement in his extremities. He passed away on June 13, 2010, at 6:20 p.m.
On September 27, 2011, the appellants filed survival and wrongful death actions in
the Circuit Court for Anne Arundel County against Drs. Park, Viswanathan, Blum, and
Alkaitis. The appellants alleged that between June 4 and June 10, 2010, each of the four
doctors “negligently failed to timely diagnose [Mr. Copsey’s] evolving stroke and refer
him for timely and appropriate treatment.” The appellants sought to hold all four
defendants jointly and severally liable. However, the appellants entered into pre-trial
settlements with Dr. Blum and Dr. Alkaitis and, on September 17, 2014, the day after the
trial began, voluntarily dismissed Dr. Viswanathan, leaving Dr. Park to stand trial as the
sole defendant.
On August 26, 2014, the appellants filed two pre-trial motions in limine. The first
was to preclude Dr. Park from raising as a defense that the negligence of subsequent
treating physicians was a superseding cause, while the second was to exclude all evidence
6
relating to Dr. Blum and Dr. Alkaitis’ prior status as defendants or pre-trial settlements.
On the first day of trial, after hearing arguments from both sides, the Honorable Paul G.
Goetzke denied both motions. The trial lasted seven days. Finally, on September 24, 2014,
the jury returned a verdict in favor of Dr. Park. This timely appeal followed.
DISCUSSION
I. ADMISSIBILITY OF EVIDENCE OF NEGLIGENCE BY SUBSEQUENT TREATING
PHYSICIANS (AND PROPERNESS OF THE SUPERSEDING CAUSE INSTRUCTION)
A. Parties’ Contentions
The appellants argue the trial court erred in denying both of their pre-trial motions
in limine. As for their first motion, which was to exclude all evidence relating to Dr. Blum
and Dr. Alkaitis previously being defendants in the case before entering into settlement
agreements, the appellants assert the trial court’s denial was based upon unsound
reasoning. Specifically, the appellants contend the trial court’s statement that evidence
relating to Dr. Blum and Dr. Alkaitis’ prior status as defendants and settlement agreements
would be probative on the issue of bias should they be called as witnesses proved inapropos
when Dr. Park never called them to testify.
The appellants also argue the trial court erred in denying their second motion in
limine, which, again, was to exclude all evidence relating to the alleged negligence by
subsequent treating physicians Blum, Viswanathan, and/or Alkaitis. The appellants assert
that this evidence is inadmissible because, pursuant to Martinez ex rel. Fielding v. The
Johns Hopkins Hospital, 212 Md. App. 634 (2013), negligence by subsequent treating
physicians is insufficient as a matter of law to establish superseding cause. They contend
7
that once Drs. Blum, Viswanathan, and Alkaitis were no longer parties to the case, evidence
of their alleged negligence became unfairly prejudicial and irrelevant as to whether Dr.
Park negligently interpreted Mr. Copsey’s head CT scan and brain MRI/MRA on June 4,
2010. The appellants argue that under Maryland law, the actions of joint tortfeasors need
not be simultaneous. They point to an abundance of case law, as well as to § 879 of the
Restatement (Second) of Torts,2 as supporting their assertion that Dr. Park was a joint
tortfeasor because his negligence combined, albeit not simultaneously, with foreseeable
acts of negligence by others to create an indivisible harm. Therefore, the appellants contend
he was jointly and severally liable for Mr. Copsey’s death, and that the trial court abused
its discretion in allowing him to pursue the superseding cause defense by admitting
evidence of the alleged negligence of subsequent treating physicians.
The appellants argue the trial court, by admitting the subject evidence of the motions
in limine, invited the jury to draw a number of impermissible inferences, including: That
Dr. Alkaitis was solely liable because he had the last chance to save Mr. Copsey’s life; that
multi-million dollar settlements had already been obtained against Dr. Blum and/or Dr.
Alkaitis; and that the reason why Dr. Blum and/or Dr. Alkaitis were no longer defendants
was because they were dismissed by the court for lack of evidence. Because the possibility
exists that the jury’s verdict derived from one or more of these inferences, the appellants
pray we grant their motion for a new trial.
2
“If the tortious conduct of each of two or more persons is a legal cause of harm that
cannot be apportioned, each is subject to liability for the entire harm, irrespective of
whether their conduct is concurring or consecutive.” (emphasis added).
8
The appellees preliminarily argue the issue raised on appeal–whether the trial judge
erred in admitting evidence of the negligence of subsequent treating physicians and
instructing the jury on superseding cause–is moot. They point out how the jury, in finding
Dr. Park was non-negligent in his reading of the head CT scan and brain MRI/MRA, never
decided whether the negligence of Drs. Blum, Viswanathan, and Alkaitis constituted a
“superseding cause” so as to absolve Dr. Park of liability. Therefore, the appellees assert
the evidence contested in this appeal is moot because it had no bearing on the jury’s verdict,
and that even if the trial court admitted this evidence in error, the error was harmless.
On the issue of mootness, we agree with the appellees that, ordinarily, when a jury
has found that the defendant did not breach the standard of care, whether the court erred in
giving a causation instruction, or in admitting evidence supporting the causation
instruction, would be moot. Here, however, the appellants argue that the evidence of
negligence by the subsequent treating doctors “contaminated” the jury’s consideration of
whether Dr. Park breached the standard of care, which is the one issue the jury actually
decided. This argument is sufficient to remove any problem with mootness.
Secondarily, the appellees contend the trial court’s decision to admit the subject
evidence of the two motions in limine was proper. They argue it is the province of the jury
to weigh evidence and that the jury was free to accept or reject the notion that the
negligence of subsequent treating physicians broke the chain of causation between Dr.
Park’s reading of the radiological images on June 4, 2010, and the acute, and ultimately
fatal, stroke Mr. Copsey suffered six days later. The appellees assert this appeal is
predominantly motivated by the appellants’ taking for granted that the jury would be
9
sympathetic to their unfortunate situation and therefore find in their favor. Ultimately,
however, the appellees contend this case came down to a classic “battle of the experts.”
They argue the jury trusted their experts more than the appellants’ because their experts
reviewed the CT scan and MRI/MRA images blindly, whereas the appellants’ were
informed exactly where the abnormalities were before being asked to provide their
assessment of whether Dr. Park provided a negligent impression. The appellees assert the
jury naturally trusted the experts who viewed the images in the manner Dr. Park would
have viewed them over those who viewed the images through the lens of hindsight.
Finally, the appellees contend that superseding cause is a question for the jury as
long as the facts admit more than one inference regarding whether unforeseeable
intervening acts of negligence occurred. The appellees point to Dr. Blum’s failure to follow
up on the “urgent” interpretation he requested from the radiology department on June 9,
2010, Dr. Viswanathan’s failure to notify a physician of his critical MRI findings until
10:30 p.m. on June 9, 2010, and Dr. Alkaitis’ failure to do anything after being notified of
Mr. Copsey’s possible impending infarct as acts of intervening negligence which a
reasonable jury could have determined “unforeseeable.” The appellees take this argument
one step further. They argue Dr. Park was entitled to demonstrate not only that the negligent
acts of Drs. Blum, Viswanathan, and/or Alkaitis were superseding causes, but also that this
group of subsequent treating physicians was solely responsible for Mr. Copsey’s death.
Pursuant to Martinez, 212 Md. App. 634, the appellees assert Dr. Park had a right to present
evidence of negligence by subsequent treating physicians because he completely denied
liability. The appellees contend that if the trial court had precluded this evidence, then the
10
jury would have been left to assume, based on an incomplete story ending in a patient’s
death, that Dr. Park was to blame.
B. Standard of Review
We recently took up the issue of whether evidence of third-party negligence is
admissible in medical malpractice actions. See Martinez, 212 Md. App. at 661-79. We
outlined our standard for reviewing this issue as follows:
Evidentiary rulings will not be disturbed “absent error or a
clear abuse of discretion.” Thomas v. State, 429 Md. 85, 97, 55
A.3d 10 (2012) (citations omitted). “[A]ll relevant evidence is
admissible. Evidence that is not relevant is not admissible.”
Md. Rule 5–402. Further, the Maryland Rules provide that:
Although relevant, evidence may be excluded if
its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
Md. Rule 5–403.
When determinations of relevancy are “the ultimate issue,”
appellate courts are “generally loath to reverse a trial court[.]”
Tyner v. State, 417 Md. 611, 616–17, 11 A.3d 824 (2011)
(citations omitted). The trial court's consideration of prejudice
or confusion of the issues “will be accorded every reasonable
presumption of correctness....” Cure v. State, 421 Md. 300,
331, 26 A.3d 899 (2011) (citations omitted). Thus, an abuse of
discretion exists when the “decision under consideration [is]
well removed from any center mark imagined by the reviewing
court and beyond the fringe of what that court deems
minimally acceptable.” North v. North, 102 Md. App. 1, 14,
648 A.2d 1025 (1994). “Trial judges do not, however, have
discretion to admit irrelevant evidence.” Schneider v. Little,
206 Md. App. 414, 447, 49 A.3d 333 (2012), cert. granted, 429
Md. 303, 55 A.3d 906 (2012) (citing State v. Simms, 420 Md.
705, 724, 25 A.3d 144 (2011)).
11
Martinez, 212 Md. App. at 657-58.
Regarding whether the trial court erred in generating a jury instruction on
superseding cause, “[Md. Rule 4-325(c)] ‘has been interpreted to require that a requested
instruction be given only when there is evidence in the record to support it.’” Flores v.
State, 120 Md. App. 171, 193 (1998) (quoting Hof v. State, 337 Md. 581, 612 (1995)).
When reviewing whether the evidence in the record supports a the trial court’s decision to
generate a certain jury instruction, an appellate court must “determine whether . . . [there
exists] that minimum threshold of evidence necessary to establish a prima facie case that
would allow a jury to rationally conclude that the evidence supports the application of the
legal theory desired.” Bazzle v. State, 426 Md. 541, 550 (2012) (quoting Dishman v. State,
352 Md. 279, 292 (1998)).
C. Analysis
The crux of Appellant’s argument is that Dr. Park could not, as a matter of law, have
been absolved of liability by the negligent acts of subsequent treating physicians. We
disagree and shall explain.
In Martinez, we took up the issue of whether evidence of prior third-party
negligence is admissible in a medical malpractice action where the defendant asserts a
complete denial of liability. 212 Md. App. 634. The plaintiff, who was ten days overdue
for the birth of her first child, “elected to have a natural birth at home[] with the assistance
of . . . a registered nurse midwife[.]” Id. at 640. She spent over 19.5 hours in labor with her
baby’s head facing the wrong direction before deciding to go to the hospital. Id. at 640-41.
Once at the hospital, the attending physicians determined that an “urgent” Caesarean
12
section was required. Id. at 642. The baby’s “condition at birth was poor,” id. at 643, and
he was ultimately diagnosed with “cerebral palsy, retardation, and other disorders.” Id. The
plaintiff “filed a pre-trial motion in limine seeking to exclude testimony regarding. . .
Midwife Muhlhan's alleged [negligence].” Id. at 645. The trial court granted the plaintiff’s
motion, reasoning that any negligence possibly committed by the midwife was irrelevant
to whether or not the hospital’s agents negligently treated the plaintiff upon her arrival. Id.
at 647-48. We reversed. We held that “evidence of both negligence and causation
attributable to a non-party is relevant where a defendant asserts a complete denial of
liability[,]” id. at 664, and that “the [h]ospital was entitled to try to convince the jury that
not only was it not negligent and not the cause of Martinez’s injuries, but that [the midwife]
was negligent and did cause the injuries.” Id. at 665 (emphasis in original).
The parties to the present case dispute what effect our holding in Martinez has on
the trial court’s decision to admit evidence pertaining to the negligence of Drs. Blum,
Viswanathan, and Alkaitis, and understandably so. In Martinez, the alleged third-party
negligence occurred before the plaintiff presented to the hospital. Here, on the other hand,
we have a physician who was permitted to present evidence of negligence by subsequent
treating physicians at the same medical center. However, just like the defendant in
Martinez, Dr. Park, in addition to claiming that Drs. Blum, Viswanathan, and Alkaitis were
superseding causes, completely denied liability. Therefore, the reason why evidence of
third-party negligence was admissible in Martinez applies here as well–because without it,
“the jury [would have been] given a materially incomplete picture of the facts, which
[would have] denied [Dr. Park] a fair trial.” Id. at 666. Our holding in Martinez that
13
“evidence of both negligence and causation attributable to a non-party is relevant where a
defendant asserts a complete denial of liability,” id. at 664, was unqualified. Therefore, we
reject the appellants’ argument that because the negligence of Drs. Blum, Viswanathan,
and Alkaitis occurred after Dr. Park’s reading of the MRI/MRA on June 4, 2010, Martinez
somehow does not apply.
We now turn to whether Dr. Park’s alternative defense of superseding cause has any
bearing on the admissibility of the contested evidence. We hold that it does not. Likewise,
we hold that the trial court did not err in instructing the jury on superseding causation.
The appellants are correct in that “[t]he classic examples of legally foreseeable
negligence by treating physicians arose in automobile cases where doctors aggravated, or
failed to cure, injuries caused by the negligent driver.”3 The appellants are also correct that
this principle has been “extended to failure to diagnose cases . . . where subsequent
healthcare providers fail to avoid the harm set in motion by the initial misdiagnosis.”
However, their assertion that any negligence by Dr. Park in his reading of the MRI/MRA
on June 4, 2010, would have rendered him per se liable for the subsequent negligence of
Drs. Blum, Viswanathan, and Alkaitis is a mischaracterization of the law regarding
consecutive tort liability. This is because in cases involving acts of negligence by
3
See Underwood-Gary v. Mathews, 366 Md. 660, 668 (2001) (noting that it is a “well-
settled principle of tort law that ‘a negligent actor is liable not only for harm that he directly
causes but also for any additional harm resulting from normal efforts of third persons in
rendering aid, irrespective of whether such acts are done in a proper or a negligent
manner.’” (quoting Morgan v. Cohen, 309 Md. 304, 310 (1987))).
14
subsequent treating physicians, the liability of the initial treating physician can be cut off
if subsequent negligence by another physician constitutes a superseding cause.
In Thomas v. Corso, 265 Md. 84 (1972), the Court of Appeals held that there was
sufficient evidence for the jury to conclude the defendant on-call doctor was negligent
when he failed to promptly report to the hospital to treat a patient who had been struck by
a car. The on-call doctor defended himself on the grounds that the nurses at the hospital
negligently failed to call him back an hour later to tell him that the patient had gone into
shock and therefore needed the immediate attention of a doctor. Id. at 94. The Court of
Appeals, however, held that the undisputed evidence that the on-call doctor was notified
that the patient had been struck by a car, had an abrasion on his forehead, and was
complaining of numbness in his right thigh was sufficient, notwithstanding the alleged
negligence of the nurses, to support the jury’s determination that the on-call doctor was
liable. Id. at 99. Corso does not, as the appellants contend, stand for the proposition that a
negligent treating physician is liable per se for the negligence of subsequent treating
physicians. Rather, the Court of Appeals’ holding in Corso was that the evidence was
sufficient to permit the jury’s finding that the on-call doctor “was one of the direct and
proximate causes of [the patient’s] death, concurrent with the negligence of the nurses.”
Id. at 103. Interestingly enough, the defendant doctor in Corso was permitted to present
testimonial evidence of the nurses’ subsequent negligence in an attempt to prove he was
not liable. Id. at 100-01.
Mehlman v. Powell, 281 Md. 269 (1977), is also instructive regarding the present
appeal. In that case, the plaintiffs sued a hospital and two of its doctors for negligently
15
causing the death of a patient. Id. at 271-72. The jury returned a verdict against all three
defendants, and one of the doctors–Dr. Ruben Cosca–appealed. Id. at 272. One of his
arguments on appeal was that the trial court erred in denying his motion for directed verdict,
in which he argued he was not a proximate cause of the patient’s death because his
negligence was followed-up by negligent omissions of others. Id. at 1124. The Court of
Appeals held that the trial court did not err in denying the motion for directed verdict and
upheld the jury’s finding that the subsequent acts of negligence were not superseding
causes exonerating Dr. Cosca from liability. Id. The Court did not, however, hold that it is
error for a trial court to permit a defendant physician who was the first to allegedly provide
negligent treatment to a patient to present evidence of negligence by subsequent treating
physicians.
We agree with the appellees that Dr. Park was entitled to pursue the superseding
cause defense, and thus to present evidence of negligence by Drs. Blum, Viswanathan, and
Alkaitis. “It is well established that, ‘unless the facts admit of but one inference . . . the
determination of proximate cause . . . is for the jury.’” Pittway Corp. v. Collins, 409 Md.
218, 253 (2009) (quoting Caroline v. Reicher, 269 Md. 125, 133 (1973)). A superseding
cause is said to have “arise[n] primarily when ‘unusual’ and ‘extraordinary’ independent
intervening negligent acts occur that could not have been anticipated by the original
tortfeasor.” Pittway, 409 Md. at 249. We have also noted that
Section 442 of the Restatement (Second) of Torts, which reads
as follows, establishes the test that has been applied in
Maryland courts for determining when an intervening
negligent act rises to the level of a superseding cause:
16
(a) the fact that its intervention brings about
harm different in kind from that which would
otherwise have resulted from the actor's
negligence;
(b) the fact that its operation or the consequences
thereof appear after the event to be
extraordinary rather than normal in view of
the circumstances existing at the time of its
operation;
(c) the fact that the intervening force is operating
independently of any situation created by the
actor's negligence, or, on the other hand, is or
is not a normal result of such a situation;
(d) the fact that the operation of the intervening
force is due to a third person's act or to his
failure to act;
(e) the fact that the intervening force is due to an
act of a third person which is wrongful toward
the other and as such subjects the third person
to liability to him;
(f) the degree of culpability of a wrongful act of
a third person which sets the intervening force
in motion.
Id. at 248.
Applying this test to the case at bar, it is clear that the trial court did not err. The
evidence of negligence by Drs. Blum, Viswanathan, and Alkaitis was relevant to whether
Dr. Park was a proximate cause of Mr. Copsey’s death. Furthermore, the negligent acts
committed by subsequent treating physicians on June 9, 2010, met the “minimum threshold
of evidence necessary to establish a prima facie case that would allow a jury to rationally
conclude that the evidence supports the application of the [superseding cause defense].”
17
Bazzle, 426 Md. at 550 (quoting Dishman, 352 Md. at 292). Therefore, just as the court did
not err in admitting the evidence of subsequent negligent acts, nor did it err in generating
the superseding cause instruction.
While no Maryland case is completely indistinguishable from the case at bar, we
find guidance in cases from other jurisdictions such as Siggers v. Barlow, 906 F.2d 241
(6th Cir. 1990). In that case, Dr. Barlow negligently misread x-rays that revealed a severely
fractured wrist on July 27, 1986. Id. at 242. Later that same day, a radiologist caught the
mistake. Id. The radiologist’s written report was sent to the emergency room on August 1,
1986, but the physician on duty at that time failed to notify the patient. Id. at 243. On
September 8, 1986, the patient reported back to the emergency room when the pain in his
wrist became “unbearable.” Id. Surgery was subsequently performed, but not within the
“undisputed . . . post-injury ‘window’ period of about 7 to 14 days during which time
[permanent wrist damage could have been prevented].” Id. The jury returned a verdict in
favor of the patient, but the trial court subsequently granted Dr. Barlow’s motion for
judgment notwithstanding the verdict, and the Sixth Circuit affirmed. Id. at 243, 248. In
doing so, the Court explained that
[a]lthough the risk of harm to [the patient] as created by Dr.
Barlow's initial misdiagnosis was great, this risk of harm did
not materialize until 7 to 14 days after the injury occurred. Up
until this post-injury window period closed, surgery could have
been performed on the wrist to restore it to virtually its
previous normal condition. An adequate amount of time thus
existed for Dr. Robertson to notify [the patient] of the
misdiagnosis before the risk of harm reached an emergency
stage (i.e., before the risk of harm became a resulting harm).
18
Id. at 245. We reference this case merely as additional support for our holding that the trial
court in this case did not err in admitting evidence of negligence by subsequent treating
physicians nor in generating the superseding cause instruction. Where the facts admit more
than one inference, the determination of superseding causation is best left to the jury.
We, therefore, hold that the circuit court did not err in admitting evidence pertaining
to the negligence of subsequent treating physicians. Furthermore, we uphold the jury’s
verdict in favor of the appellee and affirm the judgment of the circuit court.
JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANTS.
19