Pointing to the Empty Chair | Maryland High Court Malpractice Opinion

doctor-300x203More often than not, a jury trial in a wrongful death or severe injury case is about assigning blame.  Jurors want someone to blame for the harm that was caused.  Usually, this is either the plaintiff or the defendant.  In medical malpractice cases, jurors may also point to bad luck as the cause.

For defense lawyers, one of the best targets for responsibility is an empty chair, either a dismissed or unnamed defendant.  This is a more substantive target than mere bad luck and it allows the jury to meet its perceived obligation of assigning clear responsibility.  In Copsey v. Park, the Maryland high court addressed the question of whether the defendant could point to the empty chair of doctors who had already settled before trial.

Facts of Copsey

This is a medical malpractice wrongful death lawsuit involving the alleged misdiagnosis of a stroke at Anne Arundel Medical Center (AAMC).  Plaintiff contends that a radiologist interpreted a brain MRI/MRA as normal even though the images showed occlusions in the decedent’s vertebral arteries that were indicative of a stroke.  Plaintiff’s experts testified at trial that if the radiologist had properly read the MRI/MRA  and referred him for treatment that would have included anticoagulation medication or stenting, the decedent would have survived.

Three other doctors were alleged to have made mistakes further down the line, compounding the problem.  Before trial, plaintiff reached a settlement with two of the doctors who allegedly contributed to the delay in diagnosis and treatment of the decedent, signing joint tortfeasor releases with all of the defendants.  The third doctor was dismissed just before the trial.  So the case proceeded against the radiologist in Anne Arundel County Circuit Court.

The defense lawyers cross-examined the plaintiff’s experts on the dismissed defendants.  Plaintiff’s malpractice attorneys objected that the concurring negligence of settling joint tortfeasors could not be a superseding cause because the evidence was irrelevant and unfairly prejudicial, distracting the jury from the real issue at hand.  Because there can be more than one substantial contributing cause of an injury or death.

Martinez v. Johns Hopkins

The key to the case was whether Martinez v. Johns Hopkins was controlling.  In Martinez, a child and his family sued Johns Hopkins Hospital alleging the negligent failure to perform a timely Caesarean section.  The results were tragic.  The child suffers cerebral palsy, retardation, and other complications from his brain injury at birth.

In Martinez, a midwife negligently injected the mother too much Pitocin, a medication that speeds up the delivery process.  Plaintiffs successfully alleged to the jury — to the tune of $55 million — that excessive Pitocin caused the mother’s uterus to clamp down on the umbilical cord.  This cut off the critical oxygen the baby needed, causing oxygen deprivation that led to the baby’s brain injuries.

But the lawsuit in the case named only the hospital.  Why?  A $55 million verdict against a midwife is as valuable as a date an hour from now with Taylor Swift or Kit Harrington in Barrow, Alaska. Johns Hopkins, of course, has the deep pockets to pay such a verdict.  Of course, there was evidence of negligent care that contributed to the child’s injuries.

Plaintiff’s malpractice lawyer filed a pre-trial motion in limine to exclude testimony about the midwife’s negligence. The trial court granted the plaintiff’s motion with respect to whether the midwife breached the standard of care, finding that the midwife’s alleged negligence was not relevant to whether the hospital negligently caused injury to the plaintiff.  But the appellate court held that “evidence of both negligence and causation attributable to a non-party is relevant where a defendant asserts a complete denial of liability”  and that the hospital was entitled to try to convince the jury that not only was it not negligent and not the cause of Martinez’s injuries, but that [the midwife] was negligent and did cause the injuries.”

Martinez is problematic for Maryland medical malpractice attorneys because it is the first Maryland appellate decision that found that a nonparty’s negligence in a medical malpractice action should not be categorically excluded.

 

Maryland Court of Appeals Holding

The court believed that the gist of plaintiff’s argument is that radiologist could not be absolved of liability by the negligent care of the decedent’s subsequent treating doctors.  Plaintiff further argued that Martinez dealt with preceding negligence that was the sole cause of a completed injury and had nothing to do with superseding causation.

The Maryland Court of Appeals disagreed, relying in large measure on Martinez.   Plaintiff argued that Martinez is applicable.  The argument was that the issue of superseding cause was not at play in Martinez.  The court acknowledged that Martinez involved negligence that preceded the defendant’s alleged negligence. But the court found that that “Martinez dealt with a defendant presenting evidence of a nonparty’s negligence and causation similar to the issues” in this case.  Subsequent superseding events followed the radiologist “alleged negligence and were classic intervening events that [the radiologist] could not have reasonably foreseen.  The court said the radiologist was able to offer evidence of the negligence of the other treating doctors just like the court said should have been done with the midwife in Martinez.

The court’s language on this point was strong.

In addition to claiming that the other treating physicians were superseding causes, [the radiologist] also completely denied any liability. Not 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 [the defendant radiologist a fair trial.”

Practical Impact of Copsey Decision

I don’t like this decision for lots of reasons.  But I really believe that if you are going to let this kind of evidence in, the onus should be on the defendant to make the case against the co-defendant.   I would not be surprised if there was not an interrogatory answer out there in this case saying the defendant would not be pointing at co-defendants.  If so, was this issue raised?  If you believe someone else is responsible for the plaintiff’s injuries, you should have to step up from the beginning with your own experts and say so.  There is no reason to allow a defendant to have their cake and eat it too.

In medical malpractice cases, we always talk about settling with the recalcitrant defendant and then loading up on the remaining defendants.   But that rarely happens.  There is a pro rata reduction for joint tortfeasors… it is just rarely worth the trouble because of all of these types of issues.  One goal of Maryland law is to encourage settlement.  This opinion pushes Maryland malpractice lawyers away from a settlement.

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