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Barbosa v. Osbourne

Court of Special Appeals of Maryland

April 26, 2018

JOAO BARBOSA, et ux.
v.
TANISHA OSBOURNE

          Circuit Court for Frederick County Case No. 10-C-14-001287

          Woodward, C.J., Friedman, [*] Krauser, JJ.

          OPINION

          KRAUSER, J.

         Appellants, 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.

         At the 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.

         For the reasons that follow, we shall reverse the judgment below and remand for further proceedings.

         I

         On June 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."

         After 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.

         In any 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."

         The 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[1] to remove his gallbladder and a cholangiography, to obtain a radiographic image of his bile duct. Mr. Barbosa consented to the proposed surgery and cholangiography.

         As Dr. 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. Barbosa's gallbladder.

         Upon 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, "[2] 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.

         At the 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.

         II

         Mr. and 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.[3] 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 perform.[4]

         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 followed.

         At 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 argument.

         Illustrative 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.

         At the 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 circumstances.
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.

         Then, 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 a verdict."

         Ultimately, 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 ...


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