United States District Court, D. Maryland
GREGORY FAZZIE, et al. Plaintiffs,
JAMES MICHAEL STEINBERG, D.O., et al. Defendants.
K. BREDAR CHIEF JUDGE.
the Pretrial Conference held on August 16, 2018, this Court
directed the parties to submit simultaneous briefs on the
merits of Defendants' contributory negligence theory and
request for a corresponding jury instruction. (Order of Aug.
16, 2018, ECF No. 80.) Briefs have been submitted, and no
hearing is required. See Local Rule 105.6 (D. Md.
primary legal question raised by the briefs is whether
contributory negligence is applicable to the alleged facts in
this case, given the distinction in Maryland law between a
plaintiffs allegedly negligent conduct that is concurrent
with a defendant's negligence (to which the affirmative
defense applies) and conduct that is subsequent to a
completed injury (to which it does not). (Pl. Mot. in Limine
at 15, ECF No. 86; Defs. Pretrial Mem. at 4, 7-9, ECF No.
Plaintiffs also argue that, even if theoretically applicable,
evidence of contributory negligence is insufficient as a
matter of law to warrant a jury instruction. (Mot. in Limine
at 8, n.2; id. at 16- 17.) Lastly, Plaintiffs argue
that Defendants waived any contributory negligence defense by
omitting it from discovery responses and the Pretrial Order.
(Id. at 11-14).
considered the parties' arguments, for the reasons stated
below, Plaintiffs' Motion in Limine to preclude
contributory negligence arguments and evidence will be
denied. Notwithstanding that decision, the Court remains
skeptical of Defendants' contributory negligence theory.
Although the Court is not persuaded that the theory is so
legally flawed as to preclude Defendants' from offering
evidence at trial, neither is the Court convinced at this
stage that the question should ultimately be submitted to the
jury. Accordingly, to the extent that Defendants'
Pretrial Memorandum requests the Court to rule that a
contributory negligence jury instruction is warranted, that
request will be denied without prejudice. At the close of
evidence, the Court will consider any renewed request for
such an instruction, along with any objections, based on the
evidence actually presented at trial.
Concurrent or Subsequent Negligence
theory is that Mr. Fazzie developed compartment syndrome only
after discharge, that he was instructed to call Dr. Steinberg
or seek medical attention if his symptoms worsened, that his
symptoms did worsen after discharge, and that his failure or
delay in seeking care or contacting Dr. Steinberg was
negligent. (Defs. Pretrial Mem. at 3.) The parties dispute
whether Maryland law permits a contributory negligence
defense under such circumstances. In Maryland,, "the
test for contributory negligence is not 'simultaneity but
whether the plaintiffs [alleged] dereliction has
significantly contributed to the injury.'" Smith
v. Pearre, 625 A.2d 349, 358 (Md. Ct. Spec. App. 1993)
(quoting Chudson v. Ratra, 548 A.2d 172, 182 (Md.
Ct. Spec. App. 1988)); see also Hopkins v. Silber,
785 A.2d 806, 815 (Md. Ct. Spec. App. 2001).
on the other hand, the 'injury flowing from the primary
negligence is essentially complete prior ... to any
negligence on the part of the plaintiff and the plaintiffs
negligence 'simply enhances the injury, '"
mitigation of damages may be appropriate, but contributory
negligence will not bar recovery. Hopkins, 785 A.2d
at 815 (quoting Chudson, 548 A.2d at 182).
context of medical malpractice, Maryland courts permit a
contributory negligence defense "only where there was
evidence adduced that the plaintiff had received treatment
from a health care provider, that he had been given
instructions by that provider, and that he had not followed,
or unreasonably delayed in following, those
instructions." Barbosa v. Osbourne, 183 A.3d
785, 790 (Md. 2018) (collecting cases). This line of cases
fits Defendants' theory-that Mr. Fazzie was negligent
when he failed to follow or unreasonably delayed in following
Defendants' directions to seek care if his symptoms
worsened. Therefore, contributory negligence is applicable,
provided Defendants adduce sufficient evidence to meet their
burden. See Hott v. Mazzocco, 916 F.Supp. 510, 515
(D. Md. 1996) (citing Moodie v. Santoni, 441 A.2d
323, 325 (Md. 1982)) (affirming that the defendant bears the
burden of production when seeking a contributory negligence
rely on a separate line of cases holding that it is "not
contributory negligence for a patient to follow a
doctor's instructions or rely on the doctor's advice,
to fail to consult another doctor ... or to fail to diagnose
her own illness." DiLeo v. Nugent, 592 A.2d
1126, 1133 (Md. Ct. Spec. App. 1991) (citing Santoni v.
Moodie, 452 A.2d 1223 (1982)); see also Hill v.
Wilson, 760 A.2d 294, 307 (Md. Ct. Spec. App. 2000)
(affirming propriety of jury instruction that
"reasonable and justified" reliance on a
doctor's advice is not contributory negligence);
Simmons v. Urquhart, 664 A.2d 27, 32 (Md. Ct. Spec.
App. 1995) ("[P]atients are entitled legally to rely on
their physician's advice."). Even plaintiffs who
"harbor suspicions about the efficacy of [their]
treatment" remain entitled to rely on and follow their
doctors' orders. DiLeo, 592 A.2d at 1133, While
relevant, these cases do not change the conclusion that
contributory negligence is applicable to Defendant's
theory of the case-the factual dispute between the parties is
precisely about whether Mr. Fazzie's conduct after
leaving the hospital constituted following the doctor's
directions (in which case, it was not negligent) or failing
to follow them (in which case, it was). That question, in
turn, rests on a factual dispute about whether Mr.
Fazzie's symptoms worsened or remained the same after
discharge. If a jury accepts Defendants' version of
events, it may find Mr. Fazzie contributorily negligent,
whereas, if it accepts Plaintiffs' version, it may not.
also argue that Mr. Fazzie's injury was complete at the
time of discharge, which would mean any possible negligence
on his part would be subsequent, rather than concurrent, to
Defendants' negligence. (Pl. Reply at 4-5, ECF No. 90.)
Plaintiffs rely on a case holding that, in Maryland, a legal
cause of action in negligence arises when the plaintiff
"first sustains compensable damages," such as
"experience[ing] pain or other manifestation of an
injury." Green v. N. Arundel Hosp. Ass'n,
Inc., 730 A.2d 221, 231 (Md. Ct. Spec. App. 1999)
(quoting Edmonds v. Cytology Servs., 681 A.2d 546,
564 (Md. Ct. Spec. App. 1996), aff'd sub nom., Rivera
v. Edmonds, 699 A.2d 1194 (Md. 1997)). However,
Green was a case about when and where the cause of
action arises for venue purposes, and it relied primarily on
Edmonds v. Cytology Services, a case about the
statute of limitations. That an injury may be complete for
purposes of determining questions about venue and timeliness
does not necessarily control questions about contributory
negligence. To the contrary, Maryland courts have repeatedly
permitted contributory negligence defenses even though
plaintiffs may have had compensable damages or experienced
manifestations of injury immediately after a misdiagnosis.
See, e.g., Pearre, 625 A.2d at 358 (failure
to diagnose a cancerous ulcer when patient presented with
rectal bleeding); Myers v. Estate of Alessi, 560
A.2d 59, 61 (Md. Ct. Spec. App. 1989) (failure to diagnose
tongue cancer when patient presented with a sore throat that
continued for another six months); Chudson, 548 A.2d
at 182-83 (failure to diagnose breast cancer when patient
presented with a lump that continued to grow for months
afterwards). Maryland courts have declined to extend the
logic of venue and statute of limitations cases to determine
when injuries are complete for contributory negligence
purposes. The Court similarly declines to do so here.
the Court acknowledges that this case is somewhat of an
awkward fit with other medical malpractice cases that have
allowed contributory negligence defenses. Some of those cases
involved explicit non-compliance with medical instructions,
see Hopkins, 785 A.2d at 813 (patient attempted sex
six times after surgery despite being instructed to wait at
least six weeks), or utter failure to report any symptoms to
health care providers, see Moodie, 441 A.2d at 325
(clinic presented evidence that the patient never reported
any symptoms of medication complications at monthly
appointments). In unreasonable delay cases, patients delayed
for weeks or months before seeking care. See, e.g.,
Kassama v. Magat, 767 A.2d 348, 353-54 (Md. Ct. Spec.
App. 2001), aff'd, 792 A.2d 1102 (Md. 2002)
(four-week delay in obtaining a genetic test when advised at
the eighteenth week of pregnancy that it should occur between
fifteen and nineteen weeks); Myers, 560 A.2d at 61
(six-month delay in reporting persistent symptoms);
Chudson, 548 A.2d at 175 (four-month delay in
reporting worsening symptoms); cf. Moodie, 441 A.2d
at 324 (failure to report symptoms for at least four months).
Here, at most, approximately six-and-a-half hours elapsed
between Mr. Fazzie's discharge and his emergency room
visit. Although at least one other case permitted a
contributory negligence defense based on a delay of mere
hours, in that case, a pregnant patient was told to return
"immediately" if contractions started again, and
she admitted having contractions three hours before her
return. Shelter v, Woods, Civ. No.
RDB-08-3501, 2010 WL 2428754, at *3 (D. Md. June 8, 2010).
The evidence of contributory negligence in this case appears
to be far less straightforward, almost falling short
of justifying a contributory negligence instruction as a
matter of law. But not quite. So, while this case
presents a very close call, the Court concludes that this is
ultimately a question of evidentiary sufficiency.
the Court also notes that Defendants' theory is expressly
predicated on Mr. Fazzie having developed ...