JOAO BARBOSA, et ux.
Circuit Court for Frederick County Case No. 10-C-14-001287
Woodward, C.J., Friedman, [*] Krauser, JJ.
Joao Barbosa and Angela Barbosa, brought a medical
malpractice action, in the Circuit Court for Frederick
County, against appellee, Tanisha M. Osbourne, M.D., alleging
that she had, in the course of surgically removing Mr.
Barbosa's inflamed gallbladder, negligently cut Mr.
Barbosa's bile duct. In response, Dr. Osbourne denied any
negligence in the performance of that procedure and further
invoked, as a defense, Mr. Barbosa's purported
contributory negligence in failing to timely seek treatment
for his severe abdominal pains, which, she maintained,
clearly signaled the medical problem for which he eventually
sought treatment. The validity of the latter defense is the
pivotal issue of this appeal.
conclusion of the trial below, the jury, after receiving an
oral instruction and a special verdict sheet, indicating that
contributory negligence was a defense to the Barbosas'
claims, did not find that Dr. Osbourne had breached the
standard of care, without reaching the question of whether
Mr. Barbosa had been contributorily negligent. The Barbosas
then noted this appeal, contending that, because Mr.
Barbosa's alleged negligence preceded any medical
treatment that Mr. Barbosa received from Dr. Osbourne or any
other health care provider, Dr. Osbourne's contributory
negligence defense had no basis in the law. And, furthermore,
they claim that the court's error, in permitting that
defense to be raised at every stage of the trial, from
opening statement to closing argument, and then in providing
the jury with a special verdict form setting forth
contributory negligence as a potential defense, cannot be
deemed harmless error, as Dr. Osbourne claims.
reasons that follow, we shall reverse the judgment below and
remand for further proceedings.
12, 2013, Mr. Barbosa, after experiencing "severe"
and persistent abdominal pain throughout the day, went to the
emergency room of the Frederick Memorial Hospital. There, Mr.
Barbosa was seen by a nurse, who completed a "triage
assessment" form, noting that he had arrived at the
emergency room, complaining of "diffuse" abdominal
pain. That assessment was reviewed by an emergency room
physician, who then ordered several laboratory tests for Mr.
Barbosa. While the performance of those tests was still
pending, Mr. Barbosa left the hospital, as he had waited for
over two hours to be seen by a doctor, without success, and
his pain had diminished. The discharge assessment form that
memorialized his emergency room visit stated that his
"Departure Disposition" was "Elop[e]ment
(Patient Not Seen)" and that the priority assigned to
his case was "Non-Urgent."
leaving the emergency room, Mr. Barbosa continued to
experience abdominal pain, and, that evening, he had trouble
eating and sleeping. The following day, a nurse at Frederick
Memorial Hospital telephoned Mr. Barbosa and left a message
on his voice mail, "requesting" that he "call
back or return" to the hospital "for questions,
concerns[, ] or if [his] condition changes." Notably,
there was no suggestion that he otherwise call back or return
to the hospital.
event, Mr. Barbosa did not remember receiving such a call,
but, nonetheless, returned to the emergency room eleven days
after having left it, complaining that his abdominal pain had
worsened and that he was having difficulties in sleeping,
eating, and working. At that time, he was seen by an
emergency room physician, who performed an ultrasound scan.
The scan indicated that Mr. Barbosa was suffering from, among
other things, an inflamed gallbladder and possibly
gallstones. When Dr. Osbourne was notified by telephone of
those findings, she advised the emergency room physician to
admit Mr. Barbosa to the hospital overnight, as she planned
"to see him in the morning."
next day, Dr. Osbourne examined Mr. Barbosa and confirmed the
preliminary results of the ultrasound scan, namely, that he
was suffering from inflammation of the gallbladder and
possibly from gallstones in both his bile and cystic ducts.
Dr. Osbourne, then, met with Mr. Barbosa and his wife to
discuss treatment options; at which time, the doctor
recommended that Mr. Barbosa undergo a laparoscopic
procedure to remove his gallbladder and a
cholangiography, to obtain a radiographic image of his bile
duct. Mr. Barbosa consented to the proposed surgery and
Osbourne began the surgery that day, she observed
"adhesions, " that is, "intense scarring,
" on the gallbladder and surrounding structures below
the liver. Those adhesions had caused what were
"normally separate anatomical structures, " such as
Mr. Barbosa's colon and gallbladder, to bind together.
When Dr. Osbourne attempted to cut away the adhesions, she
encountered difficulty in doing so and, consequently, sought
the assistance of a more senior surgeon, Jonathan E. Grife,
M.D. After discussing the problem with Dr. Grife, Dr.
Osbourne decided not to perform the cholangiography, as
planned, because she believed that the adhesions had rendered
that procedure unsafe and unnecessary. Then, assisted by Dr.
Grife, Dr. Osbourne commenced the surgical removal of Mr.
removing the gallbladder, Dr. Osbourne observed a small
amount of bile, which, in her words, was "where it
shouldn't be." Suspecting a possible bile duct
injury, she requested that a gastroenterologist perform an
endoscopic examination, known as an "ERCP,
" so that Mr. Barbosa's bile duct could
be inspected and a determination made as to the extent of any
such injury. When, after multiple attempts, the requested
gastroenterologist was unable to perform that diagnostic
procedure, Mr. Barbosa was transferred to the University of
Maryland Medical Center, where an ERCP was successfully
performed, confirming damage to the bile duct.
Medical Center, Mr. Barbosa then underwent a surgical
procedure to repair his bile duct injury, during the course
of which his right hepatic artery ruptured, whereupon a
section of that artery was removed and replaced. A subsequent
"Operative Report, " from the University of
Maryland Medical Center, stated that the repair of the artery
"revealed an underlying thermal injury involving over
50% of the right hepatic artery diameter, " which, the
Barbosas later claimed, was caused by the instrument Dr.
Osbourne used to remove his gallbladder. On July 2, 2013, Mr.
Barbosa was discharged from the University of Maryland
Medical Center and returned home.
Mrs. Barbosa thereafter filed a claim with the Health Care
Alternative Dispute Resolution Office, alleging medical
malpractice by Dr. Osbourne. Then, after arbitration was
waived, the Barbosas filed suit against Dr. Osbourne, in the
Frederick County circuit court, alleging both medical
malpractice and loss of consortium. In her answer to the
Barbosas' complaint, Dr. Osbourne asserted that she had
not breached the standard of care and that, in any event, Mr.
Barbosa had been contributorily negligent in leaving the
emergency room on June 12, 2013, without having received a
diagnosis, and then not returning to that medical facility
until eleven days later. That delay, the doctor claimed,
severely complicated the surgery she was to
prevent the implementation of that defense, the Barbosas
filed a pre-trial "Motion for Summary Judgment as to the
Defendants' Affirmative Defense of Contributory
Negligence, " contending that such a defense cannot be
raised as to a patient's delay in seeking treatment that
precedes any medical diagnosis, care, or treatment the
patient ultimately receives, which, they maintained, is
precisely what occurred here. The circuit court denied that
motion as well as the motion for reconsideration that
trial, in addition to the extensive testimony from medical
expert witnesses presented by both sides, as to whether Dr.
Osbourne had violated the standard of care, Dr.
Osbourne's counsel vigorously pursued a contributory
negligence defense. She raised that defense in opening
statement, then cross-examined lay and expert witnesses
presented by the Barbosas as to that issue, then presented
three medical experts, all of whom testified as to Mr.
Barbosa's alleged contributory negligence, and finally,
raised contributory negligence as a defense in closing
of the spirited pursuit of that defense by Dr. Osbourne's
counsel is her closing argument, where she maintained that,
had Mr. Barbosa remained in the emergency room the evening of
June 12th, "the injuries we are here for today would not
have existed." Then, in stressing to the jury why the
date of "June the 12th" was "important to the
case, " she asserted that Mr. Barbosa, on that date,
failed to remain in the emergency room and obtain a diagnosis
of or treatment for his abdominal pain; then failed to return
to the hospital on June 13, 2013, in response to the
telephonic voice message left by a hospital nurse; and, then,
delayed his return to the emergency room for treatment for
ten more days despite continuing to experience abdominal pain
during that time period; all of which was, purportedly,
evidence of contributory negligence.
conclusion of the trial, the circuit court instructed the
jury, not only as to negligence, but as to contributory
negligence as well, stating:
The patient cannot recover if the patient's negligence is
the cause of the injury. Negligence, again, is doing
something a person using ordinary care would not do, or not
doing something a person using ordinary care would do.
"Ordinary care" means that caution, attention, or
skill a reasonable person would use under similar
The Defendant has the burden of proving, by a preponderance
of the evidence, that [the] patient's negligence was the
cause of the patient's injury.
before the jury commenced its deliberations, it was given a
special verdict sheet, which instructed that, if it answered
"Yes" to "Question 1" of the verdict
sheet: "Do you find by a preponderance of the evidence
that Defendant, Tanisha M. Osbourne, M.D., deviated from the
accepted standard of care in her treatment of Joao M.
Barbosa?", it must proceed to "Question 2, "
which asked: "Do you find by a preponderance of the
evidence that the deviation from the accepted standard of
care by the Defendant, Tanisha M. Osbourne, M.D., was a cause
of injury to Joao M. Barbosa?" And, if it answered
"Yes, " it was to proceed to "Question 3,
" which inquired: "Do you find that Plaintiff Joao
M. Barbosa's own negligence in caring for himself caused
or contributed to his injuries?" On the other hand, if,
at the outset, it answered "No" to Question 1, it
was to "STOP and notify the court that [it had] reached
the jury answered "No" to the first question on the
verdict sheet and thereby indicated that it had not found by
a preponderance of the evidence that Dr. Osbourne had
"deviated from the accepted standard of care in her
treatment of Joao M. Barbosa." Accordingly,
"Question 3, " inquiring whether Mr. Barbosa's
"own negligence in caring for himself caused or