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Fazzie v. Steinberg

United States District Court, D. Maryland

September 11, 2018

GREGORY FAZZIE, et al. Plaintiffs,
JAMES MICHAEL STEINBERG, D.O., et al. Defendants.



         I. Background

         Following 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. 2016).

         The 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. 84.[1]) 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).

         Having 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.

         II. Analysis

         A. Concurrent or Subsequent Negligence

         Defendants' 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).

         "If, 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).

         In the 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 instruction).

         Plaintiffs 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.

         Plaintiffs 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.

         Nonetheless, 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.

         However, the Court also notes that Defendants' theory is expressly predicated on Mr. Fazzie having developed ...

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