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Maryland Court of Appeals Okays Admission of Evidence of Non-Party’s Medical Negligence

Jenny J. Copsey, Individually and as Personal Representative of the Estate of Lance D. Copsey, Deceased, et al. v. John S. Park, et al.
No. 34 (Court of Appeals of Maryland)

by Caroline E. Willsey, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/coa/2017/34a16.pdf

Plaintiff, Jenny Copsey, the widow of Lance Copsey (“Mr. Copsey”), along with his minor children and mother brought an action against John S. Park, M.D. (“Dr. Park”) and Brown, Croft and Frazier P.A. (“Annapolis Radiology”) in the Circuit Court for Anne Arundel County.

Mr. Copsey presented to the Anne Arundel Medical Center (“AAMC”) emergency room after a slip and fall in February 2010. The hospital released Mr. Copsey after a reportedly normal cranial CT scan. Three months later, in May 2010, Mr. Copsey returned to AAMC complaining of recurring episodes of dizziness and was referred to his internal medicine physician. Again, on June 4, 2010, Mr. Copsey presented to the AAMC emergency room complaining of vertigo occurring for about a week, numbness in the right side of his face, right arm and right leg, headaches, mild shortness of breath, mild diplopia and trouble walking. Mr. Copsey was referred to a neurologist, Larry Blum, M.D. (“Dr. Blum”) who ordered a CT scan and brain MRI.

A radiologist, Dr. Park, reviewed the CT scan and MRI on the evening of June 4 and reported normal findings. Specifically, Dr. Park found no evidence of intracranial hemorrhage, acute injury, aneurysm, anteriovenous malformation, abnormal vessel cut-off, extraaxial fluid collection Dr. Blum independently review the CT and MRI on June 5 and confirmed that there were no abnormalities. Mr. Copsey was discharged from AAMC on June 6, 2010. The next day, Mr. Copsey followed up with his internal medicine physician. Mr. Copsey’s symptoms returned later in the day on June 7, but he did not present to the AAMC emergency room until June 9. By June 9, Mr. Copsey was experiencing hiccups and having trouble swallowing.

Dr. Blum, who examined Mr. Copsey again at AAMC ordered an urgent interpretation of a new brain MRI and requested an urgent call back from the radiologist. Vijay Viswanathan, M.D. (“Dr. Viswanathan”) interpreted the MRI at 4:02 p.m. on June 9 and noted several abnormalities concerning for acute infarction, a brain-cell death caused by insufficient flow of blood. Dr. Viswanathan did not report the results to Dr. Blum, anyone at AAMC or Mr. Copsey. Mr. Copsey was provided copies of his images, which he gave to Dr. Blum around 6 p.m. Dr. Blum independently examined the images and upon finding no abnormalities himself, released Mr. Copsey from the hospital. Dr. Viswanathan notified Damanhuri Alkaitis, M.D. (“Dr. Alkaitis”), the on-call neurologist, of the findings at 10:30 p.m., after Mr. Copsey had been discharged. Neither Dr. Viswanathan nor the on-call neurologist attempted to contact Mr. Copsey and arrange for his transport back to the emergency room for treatment.

Mr. Copsey suffered a stroke at approximately 4:00 a.m. on June 10, 2010. Mr. Copsey was taken to AAMC and then to Johns Hopkins Hospital, but ultimately passed away on June 13, 2010.

The petitioners filed survival and wrongful death actions against Dr. Park and Annapolis Radiology, Dr. Viswanathan and his employer, Anne Arundel Diagnostic Imaging, Inc., Dr. Blum and Dr. Alkaitis, and their employer, Bay Area Neurology, LLC (“Bay Area”). The petitioners reached pre-trial settlements with Dr. Blum, Dr. Alkaitis and Bay Area Neurology. Those defendants were dismissed from the action. The day before trial, the petitioners voluntarily dismissed Dr. Viswanathan and Anne Arundel Diagnostic Imaging, Inc. Dr. Park and Annapolis Radiology were the only defendants left to stand trial.

Prior to trial, the petitioners moved in limine to prevent the introduction of certain evidence. The first motion was to exclude all evidence relating to Dr. Blum’s and Dr. Alkaitis’ pre-trial settlements. The second was to preclude Dr. Park from raising as a defense that the negligence of subsequent treating physicians was an intervening and superseding cause of Mr. Copsey’s injuries. The trial court denied both motions.

At trial, expert witnesses on both sides testified as to the negligence of the three subsequent treating doctors, Dr. Blum, Dr. Alkaitis, and Dr. Viswanathan. The jury returned a verdict in favor of the defendant, Dr. Park. The petitioners appealed and the Court of Special Appeals affirmed the Circuit Court.

The petitioners argued that in admitting evidence of the non-parties’ negligence, the trial court admitted evidence which was irrelevant and immaterial to the issue of whether Dr. Park violated the standard of care and whether that breach was a proximate cause of Mr. Copsey’s death. On appeal, the Court of Appeals addressed the following questions:

  1. Did the trial court err in admitting evidence of the negligence of non-party, subsequent treating physicians, including evidence that they were once defendants in the instant suit?
  2. Did the trial court err in instructing the jury on superseding cause when the negligence of all the treating physicians amounted to one indivisible injury, that being death?

The Court of Appeals answered both questions in the negative and held that a defendant, who generally denies liability, may present evidence of a non-party’s negligence and alternative causation as an affirmative defense.

Martinez ex rel. Fielding v. Johns Hopkins Hosp., 212 Md. App. 634, 70 A.3d 397 (2013), was the first Maryland case to address a non-party’s negligence in a medical malpractice action. In Martinez, the Court of Special Appeals held that evidence of a registered nurse midwife’s negligence should not have been excluded in a birth injury case against Johns Hopkins Hospital, where the infant plaintiff and her mother were brought for an emergency C-section after a failed home birth attempt. The petitioners argued that Martinez did not apply here because the negligence in Martinez was antecedent and the issue of superseding cause was not involved. The Court of Appeals disagreed, stating “[n]ot unlike Martinez, evidence of a third-party’s negligence is admissible because without the evidence ‘the jury [would have been] given a materially incomplete picture of the facts, which [would have] denied [Dr. Park] a fair trial.’” (citing Martinez, 212 Md. App. at 666). The Court also rejected petitioners’ argument that allowing evidence of non-party negligence would distract the jury. Moreover, the Court has allowed defendants to introduce evidence of non-party negligence in other circumstances. See ACandS, Inc. v. Asner, 344 Md. 155, 686 A.2d 250 (1996) (holding that the supplier of an asbestos-containing product could point to exposure to a non-party’s product as a defense to a products liability action).

With regard to the negligence of subsequent treating physicians as an intervening and superseding cause, the Court relied heavily on Pittway Corp. v. Collins, 409 Md. 218, 973 A.2d 771 (2009). In Pittway, the Court defined proximate causation as (1) a cause in fact, and (2) a legally cognizable cause. Causation-in-fact requires a defendant be the substantial factor in producing a plaintiff’s injuries. Id. at 244. Legal causation requires the court to consider “whether the actual harm to a litigant falls within a general field of danger that the actor should have anticipated or expected.” Id. at 245. A superseding cause occurs when “‘unusual’ and ‘extraordinary’ independent intervening negligent acts occur that could not have been anticipated by the original tortfeasor.” Id. at 249 (citation omitted). To determine whether an intervening negligent act rises to the level of a superseding cause, Maryland courts require consideration of the following:

  1. The fact that the intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;
  2. The fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation;
  3. The fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;
  4. The fact that the operation of the intervening force is due to a third person’s act or his failure to act;
  5. The fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
  6. The degree of culpability of a wrongful act of a third person which sets the intervening force in motion.

Id. at 253. In light of the foregoing, the Court concluded that the evidence submitted to the jury of the negligence of the subsequent treating physicians was relevant to the jury’s determination of superseding cause.

Accordingly, the Court affirmed the judgment of the Court of Special Appeals. Dr. Park was entitled to present evidence of non-parties’ negligence as it was relevant and necessary to providing Dr. Park a fair trial. Additionally, causation was an issue for the trier of fact.

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