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Armacost v. Davis

Court of Appeals of Maryland

January 25, 2019

Mark Armacost
Reginald J. Davis

          Argument: October 9, 2018

          Circuit Court for Baltimore County Case No. 03-C-14-011973

          Barbera, C.J., Greene [*] Adkins McDonald Watts Hotten Getty, JJ.


          MCDONALD, J.

         A judge presiding at a jury trial provides direction to the jury on several topics, including: (1) the law governing its consideration of the evidence - e.g., the burden of proof, direct and circumstantial evidence, the credibility of witnesses, expert testimony; (2) the law governing the specific issues that the jury must decide; (3) the process by which the jury is to conduct its deliberations; and (4) housekeeping matters - e.g., the trial schedule, how to communicate with the court, where and when to report. Most of the court's instructions on the law are given after the close of the evidence, but certain instructions may be given at the outset of the trial, during its course, or in response to jury questions or notes. A trial court enjoys a fair amount of discretion in what it tells the jury, although any instructions it gives must be consistent with the law.

         This case concerns two sets of instructions given in a medical malpractice case. The action was brought by Petitioner Mark Armacost against Respondent Dr. Reginald Davis, a neurosurgeon at the Greater Baltimore Medical Center ("GBMC"), who had performed surgery on Mr. Armacost. A jury in the Circuit Court for Baltimore County returned a verdict finding that Dr. Davis had been negligent.

         The first set of jury instructions at issue was given at the close of the evidence and concerned what is necessary to prove medical malpractice. The trial court recited standard pattern instructions on negligence, foreseeability, and causation before particularizing the standard of care applicable to a health care provider - i.e., that the provider must exercise the "degree and skill which a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances would use." Dr. Davis contends that, while all of these instructions correctly state the law, the trial court misled the jury as to the standard of care applicable to his conduct when it prefaced the instruction on the standard of care applicable to health care providers with two of the general negligence instructions.

         The second set of instructions at issue was given on the third day of jury deliberations after a jury note suggested that the jury might be deadlocked. In response, the trial court urged the jurors to give careful consideration to each other's views while not surrendering a sincerely held belief - what is known as a "modified Allen charge." The court also informed the jury, some of whose members had expressed concerns about the trial schedule throughout the trial, that it would require the jury to deliberate only for another hour and would not ask them to return for a fourth day of deliberation. After engaging in additional deliberation that afternoon, the jury returned its verdict. Dr. Davis contends that the modified Allen charge, coupled with the information that the jury's deliberations would come to an end soon, was "unduly coercive."

         We hold that, while the trial court's instructions on the applicable law might have been phrased better, those instructions, considered as a whole, did not mislead the jury as to the applicable law. Nor has Dr. Davis demonstrated, on the record of this case, the probable prejudice necessary for reversal of the jury's verdict.

         We also hold that the trial court did not abuse its discretion in giving the modified Allen charge. In the context of a case in which the jurors had expressed concern about the court's schedule during the trial, it was not an abuse of discretion to advise the jury how long it would be required to continue its deliberations.

         I Background

         The legal questions that we must answer in this case concern certain jury instructions given by the trial court. Resolution of these questions does not depend on the precise allegations of medical malpractice that were at issue at trial. To provide some context, however, we briefly summarize those allegations and the testimony at trial, as well as the pertinent instructions that were given.

         A. Facts

         In January 2012, Mr. Armacost first visited Dr. Davis. Mr. Armacost told Dr. Davis that he had recently begun to experience numbness in two fingers of his right hand, and that he had suffered intermittent neck and shoulder pain in the past. Dr. Davis recommended surgery. The surgery was performed in March 2012 at GBMC. Dr. Davis removed damaged discs from Mr. Armacost's spine and fused vertebrae in his neck.

         Sometime after the surgery, an infection developed at the location of the operation. Mr. Armacost made additional visits to GBMC and to various physicians, including Dr. Davis, and was hospitalized in August 2012 as a result of the infection. When this case was tried in 2016, Mr. Armacost was still afflicted with neck pain and hampered by a severely limited range of motion.

         B. Court Proceedings

         The Complaint

         On November 3, 2014, Mr. Armacost filed suit against Dr. Davis and GBMC in the Circuit Court for Baltimore County.[1] The first count of the complaint alleged negligence - that is, that the treatment of Mr. Armacost violated the standard of care expected of reasonably competent health care providers. The second count of the complaint alleged a failure to obtain informed consent - that is, that Dr. Davis and GBMC had failed to inform Mr. Armacost of the risks and of appropriate alternatives for treatment at the time he agreed to undergo the surgery. The complaint stated that Mr. Armacost had suffered various injuries and damages as a result of the alleged negligence and failure to obtain informed consent. Dr. Davis and GBMC each filed an answer raising various defenses and denying liability.

         Jury Selection and Management

         The trial began on Tuesday, May 17, 2016. During jury selection, the trial court informed the jury venire that the trial was expected to last seven days and would "finish on no later than Wednesday, May 25th" - shortly before the Memorial Day weekend. As is sometimes the case during trials of moderate length, the court was called upon to address the concerns of several jurors about its duration.

         The first day of trial was consumed by jury selection and opening statements. The trial court seated a jury of six jurors and two alternates. At the outset of the second day of trial, one of those jurors asked to be excused on the ground that he was the caregiver for his elderly grandfather, who had a medical appointment later that week - a concern that he had not raised during voir dire. The trial court was reluctant to lose a juror so early in the trial and initially denied the request. The juror repeated the request the next day and the court eventually acceded to it, excusing that juror at the end of the third day of the trial.

         On the third day of the trial, the trial court noted that other jurors were "concerned about the length of the trial" and that three had asked for letters, presumably for their employers. The trial court provided letters reiterating that the trial was scheduled to "go until Wednesday, May 25," advised the jury that counsel were conducting the trial very efficiently, and stated that the case would likely be submitted to the jury by Tuesday, May 24, although the court said it could not predict how long their deliberations might take.[2](In fact, the case was ultimately submitted to the jury on Monday, May 23, a day earlier than the court's prediction).

         Trial Testimony

         During the plaintiff's case, Mr. Armacost, his parents, and his son testified as to Mr. Armacost's background, physical condition, and treatment. An expert neurosurgeon testified that the procedure performed by Dr. Davis, while done proficiently, was neither medically necessary nor even appropriate for a patient with Mr. Armacost's medical history and that Mr. Armacost's symptoms would likely have dissipated under more conservative care.[3] The expert also testified that the post-operative infection was a result of the surgery and should have been detected, diagnosed, and treated sooner. During the defense case, an expert neurosurgeon and an infectious disease specialist, as well as Dr. Davis himself, testified that the surgery was an appropriate treatment and that the subsequent infection had been present only for a couple of weeks before it was caught.[4]

         Jury Instructions

         On May 23, 2016, after three days of testimony, the trial court instructed the jury on the law governing its decision. As is typical, most of those instructions provided guidance to the jury on such things as how to consider the types of evidence it heard, what burden of proof to apply, and how to complete the verdict sheet to communicate its verdict on the issues in the case. With respect to the law governing the two claims asserted by Mr. Armacost, the trial court began with general instructions concerning the law of negligence and then focused on the particular standard of care pertaining to health care providers and the requirement that a physician obtain informed consent from a patient before providing treatment.

         The court largely drew its instructions from "pattern instructions" for civil cases developed by the Standing Committee on Pattern Jury Instructions of the Maryland State Bar Association ("MSBA").[5] Three such instructions given by the trial court are pertinent to the first issue in this appeal. In particular, the court recited the general pattern instruction on negligence (MPJI-Cv 19:1) followed by the related instruction on foreseeability (MPJI-Cv 19:3).[6] Those instructions use the familiar standard in negligence law of the hypothetical "reasonable person." The trial court told the jury:

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.

         The trial court followed those two instructions with the general pattern instruction on causation and then gave a pattern instruction that specifically addresses negligence of a health care provider (MPJI-Cv 27:1).[7] The latter instruction particularized the standard that the jury should apply to the benchmark of a "reasonably competent health care provider." In reciting the pattern instruction verbatim, the trial court told the jury:

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.

         The trial court then gave the jury the pattern instruction on informed consent.[8]

         At the conclusion of all of its instructions, the trial court paused to allow counsel to place on the record any exceptions to the instructions. Pertinent to this appeal, counsel for Dr. Davis objected to the foreseeability instruction, with specific reference to how it would affect the jury's consideration of the claim of lack of informed consent. He told the trial court:

I respectfully except to your decision to give the model pattern jury instruction 19:3, foreseeable circumstances.
I think that instruction is intended for situations where the question is whether or not someone would have seen … should have reasonably foreseen trouble in the future such as a wet road, some sort of mechanical failure, a failure of [brakes] on a car, some sort of defect in a product that could foreseeably cause harm to people in the future, perhaps a defect in a sidewalk or stairs or something of that nature.
I think that in this instance the foreseeable circumstances instruction complicates matters because we are talking about informed consent. We are talking about material risks and 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 to foresee what may happen to Mr. Armacost in the future, and I think giving the foreseeable circumstances instruction under the facts of this case, given the notion of informed consent, and what is or is not a material risk, I think it implies that there is perhaps some heightened duty on Doctor Davis because he should have foreseen that Mr. Armacost didn't … wouldn't have the outcome that he hoped for or something of that nature….

         Counsel for GBMC also adopted that exception. The trial court took no action in response to the exception, referring to it as the "one divisive issue" concerning the instructions. Neither defense counsel objected to the general pattern instructions on negligence or causation - or to the instructions that particularized the standard of care for health care providers and that stated the obligation to obtain informed consent.

         Closing arguments of counsel ensued and the jury retired to deliberate for the remainder of that day. Deliberations continued during the next day and for most of a third day as well.

         Jury Deliberations and Modified Allen Charge

         Late in the day during the first day of their deliberations (Monday, May 23), the jurors sent two notes to the court, one of which asked when they would be able to stop deliberations on that day. The court brought the jurors into the courtroom and dismissed them for the day, with directions to return early the next day to continue their deliberations.

         Similarly, late in the day on the second day of deliberations (Tuesday, May 24), the jury sent a note indicating that they were "undecided" and asking the court to recess their deliberations until the next day. The court brought the jury back into the courtroom, acknowledged the note and that "you have had a long day today of deliberations," and recessed the trial until the next morning.

         At approximately 2:00 p.m. on the third day of deliberations (Wednesday, May 25), the jury sent two notes to the trial court. One note expressed a juror's concern about child care. The second note asked what would happen if the jury was unable to reach a decision.

         By the time the court and counsel convened to discuss the notes, the child care issue had apparently been resolved. In response to the second note, the court proposed to bring the jury back into the courtroom, to give a "modified Allen charge"[9] encouraging the jury to reach a resolution, and to allow the jury an additional hour for deliberation to see if the jurors could agree upon a verdict. Neither the court nor counsel discussed whether or how the court should answer the jury's question as to what would happen if they failed to reach a verdict. Nor did they discuss the precise wording of the modified Allen charge. Counsel for Dr. Davis did express concern about giving a modified Allen charge, although not about concluding the jury's service that day. The following colloquy ensued:

Counsel for Dr. Davis: I know that the Allen charge is relatively widely recognized but I would object to it being given.
I think it unfairly indicates to people that they should sway their views and perhaps give up a position that they hold very firmly.
I think the way that it is worded and the manner in which the language is utilized in many of the versions that I have seen tends to be persuasive and I don't think that it is a, a very good tool for the process that we are trying to engage in.
Obviously, these people have been at it for some time and there are very clearly held views and, frankly, there may be five people in favor of Doctor Davis and GBMC, and one person holding out. And so the Allen charge would potentially work in my favor but the opposite could also be true, and I think that if people are back there and they have views that they hold strongly, that they have held most strongly as they obviously have for this long, and charge is un, unfairly persuasive and prejudicial. And so I would just object to it.
I would, I would ask the jury be given to the end of the day without it. And if they can't, at that point in time I would move for mistrial.
Court: Not responding to this note for two hours? Just let them sit in there and stew, that's your proposal?
Counsel for Dr. Davis: Oh, no, Your Honor. I would bring them out and say we would ask that you continue your deliberation, your jury deliberations and attempt ...

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