REGINALD J. DAVIS
Deborah, S., Kehoe, Rodowsky, Lawrence F., (Senior Judge,
Specially Assigned), JJ.
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 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.
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
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.
appeal, Dr. Davis raises two questions, which we have
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
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
January 17, 2012, after years of neck and shoulder pain and a
recent onset of numbness in his right hand, Mr. Armacost
consulted with Dr. Davis, the chief neurosurgeon at the
Greater Baltimore Medical Center (GMBC). 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
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 to attempt to figure out the
cause of Mr. Armacost's symptoms. Mr. Armacost took more
than a month to schedule that procedure, but it was
eventually performed on July 20. Dr. Davis interpreted the CT
myelogram as normal.
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 "pinpoint
opening" had developed into an abscess. A doctor drained
the abscess, and the fluid tested positive for a
methicillin-sensitive Staphylococcus aureus bacterial
infection- some five months post operation.
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.
trial, Mr. Armacost's expert witness testified that the
fusion procedure performed on Mr. Armacost, although
performed well,  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
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.
jury was excused for deliberation in the afternoon of May 23,
2016. On May 25, 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
The standard-of-care instructions
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
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.
trial court also instructed the jury on the requisite
standard of care for physicians in the context of medical
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
all the instructions were given, Dr. Davis objected:
[Defendant's Counsel: 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
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
[Defendant's Counsel]: I'm done.
The Court: Good. Okay.
* * *
[Plaintiff's Counsel]: In responding to that, Your Honor,
I think that the-
The Court: I don't need you to respond to that.
[Plaintiff's Counsel]: Very well. We have no exceptions
for the Plaintiff. The Court: Okay. All right. One divisive
court did not otherwise respond to Dr. Davis's objection
or modify the instructions.
the instructions were given to the jury, trial counsel gave
their closing arguments. During the plaintiff's closing
argument, counsel made the following comment to the jury
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.
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 [GMBC] 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]?
jury answered both questions affirmatively.
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 and implied there was
some type of foreseeable danger that required Dr. Davis to
change his conduct accordingly.
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.
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