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Davis v. Armacost

Court of Special Appeals of Maryland

September 1, 2017

REGINALD J. DAVIS
v.
MARK ARMACOST

          Eyler, Deborah, S., Kehoe, Rodowsky, Lawrence F., (Senior Judge, Specially Assigned), JJ.

          OPINION

          KEHOE, J.

         This 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.

         Mark 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 circumstances.

         During 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.

         On appeal, Dr. Davis raises two questions, which we have rephrased:

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 coercive?

         As we 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 reversal.

         Background

         On 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 spine.[1]

         Mr. 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[2] 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.

         On 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[3]- some five months post operation.

         On 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.

         At trial, Mr. Armacost's expert witness testified that the fusion procedure performed on Mr. Armacost, although performed well, [4] 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. [5]

         The 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 detail below.

         ANALYSIS

         I. The standard-of-care instructions

         The 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 circumstances.
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.[6]

         The trial court also instructed the jury on the requisite standard of care for physicians in the context of medical malpractice specifically:

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 use.[7]

         After all the instructions were given, Dr. Davis objected:

[Defendant's Counsel[8]: 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 infection postoperatively.
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 jury-
[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 issue.

         The court did not otherwise respond to Dr. Davis's objection or modify the instructions.

         After 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 (emphasis added):

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.

         The 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]?

         The jury answered both questions affirmatively.

         Dr. 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.

         Mr. 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.[9]

         We hold 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 ...


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