Part 1 of this series focused on the “same or related specialty” requirement for expert witnesses in Maryland medical malpractice cases. Part 2 discussed the ruling that an erroneous summary judgment for one defendant did not require reversal of defense verdicts in favor of other defendants.

Factual Background

The case centered on a 76-year-old patient who visited an outpatient facility for a routine endoscopic procedure. After the procedure completed, the medical providers monitored the patient in a recovery unit for approximately 30 minutes. The patient’s age and high-risk medical history included hypertension, morbid obesity, and diabetes. Despite this, the gastroenterologist authorized his discharge and allowed him to leave the facility on foot.

While walking to his car in the parking lot, the patient fell and sustained catastrophic spinal injuries. He died two weeks later. His family brought medical malpractice and wrongful death claims in the Circuit Court for Baltimore County. During the trial the defendants argued that the patient was “contributorily negligent.” They supported this theory by citing a statement from the patient’s spouse. She mentioned to emergency responders that her husband appeared to have tripped on a curb or a slight unevenness in the sidewalk. On the basis of this testimony, the trial court allowed the jury to receive an instruction on contributory negligence. This essentially gave the jury the power to bar the family from any recovery if they believed the patient was even slightly at fault for the fall.

Parties’ Arguments

On appeal, the plaintiffs argued that the trial court committed error by giving the contributory negligence instruction. They contended that there was no evidence that the patient acted unreasonably. The plaintiffs’ primary argument was that a patient cannot be found negligent for simply walking to his car after a doctor has officially determined he is safe to be discharged. They argued that “tripping” is a physical event, not a failure of legal duty. This is especially true when the medical team failed to provide the necessary assistance or a wheelchair.

The defendants argued that the instruction was appropriate because the patient had a duty to look where he was walking. They suggested that by failing to navigate the sidewalk safely, the patient contributed to his own injuries. They essentially sought to convince the jury that the fall was the result of a “trips and falls” hazard rather than the residual effects of anesthesia or a lack of medical supervision.

Court’s Ruling on Contributory Negligence in Medical Malpractice

The Appellate Court of Maryland reversed the trial court’s decision on this issue, ruling that the evidence did not support a contributory negligence instruction. The Court held that for a defendant to successfully raise a contributory negligence defense in a medical malpractice case, there must be evidence that the patient violated a specific instruction given by a healthcare provider.

The Court noted that in this case, the patient was doing exactly what he was told he could do. He was leaving the facility. There was no evidence that he ignored a warning not to walk, nor did he refuse a wheelchair. The Court clarified that a patient is entitled to rely on their doctor’s professional judgment that they are fit for discharge. Furthermore, the Court distinguished between “causation” and “negligence.” While a defendant can argue that a trip caused the fall to negate the link to medical care, they cannot label that trip as “negligence” by the patient unless the patient breached a duty of care. Because the patient followed all instructions, the defense of contributory negligence was legally unavailable.

Commentary by Medical Malpractice Lawyer Mark Kopec on Contributory Negligence in Medical Malpractice

In my view, the Appellate Court decided this issue correctly. It is a significant decision for patient rights in Maryland. Contributory negligence is a notoriously harsh doctrine in our state. Maryland is one of the few remaining jurisdictions that follows “pure” contributory negligence. As a result, a plaintiff who is found to be even 1% at fault is completely barred from recovering any damages. This “all or nothing” rule is why defendants so aggressively try to inject this issue into every case they can.

However, contributory negligence is rarely applicable in Maryland medical malpractice cases, and for good reason. A patient enters a medical facility because they lack medical expertise. They are there to rely on the expertise of professionals. It is inherently contradictory to allow a doctor to declare a patient “safe” and then allow that same doctor to argue the patient was “negligent” for believing them.

Tripping is Not Contributory Negligence in Medical Malpractice

As the Court recognized, a patient’s simple act of walking—even if they trip—does not constitute legal negligence if they have been cleared for that activity by their physician. Defendants often try to confuse the jury by framing accidental movements as “fault.” However, this ruling reinforces the high bar required to blame a patient. Unless a patient explicitly defies medical advice (such as getting out of bed after being told to stay put), the defense should not be allowed. This decision prevents defendants from using “victim-blaming” tactics to escape liability for their own failures in risk assessment and patient safety.

You can read other Blog posts on the topic of Defenses.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

Factual Background

The plaintiffs brought a medical malpractice claim in the Circuit Court for Frederick County, claiming that the surgeon, in removing the gallbladder, negligently cut the bile duct. The doctor contended that she was not negligent and that the plaintiff was contributorily negligent for failing to timely seek treatment after he had severe symptoms. (Op. at 1).

The plaintiff went to the emergency room for severe abdominal pain. Afterward, a doctor had not seen the plaintiff for two hours and his pain receded, he left the hospital. (Id. at 2).

The plaintiff’s pain worsened, and he returned to the emergency room 11 days later. An ultrasound revealed an inflamed gallbladder and possible gallstones in the bile and cystic ducts. (Id. at 3).

In the surgery, the doctor saw bile and suspected a bile duct injury. An ERCP to inspect the bile duct was unsuccessful. The hospital then transferred the plaintiff to UM, where an ERCP showed injury to the bile duct. The repair also encountered damage to the hepatic artery, which the plaintiffs alleged the defendant caused. (Id. at 4-5).

At trial, the defense asserted the contributory negligence defense, which stated that the plaintiff’s waiting for eleven days made the surgery more complicated. (Id. at 5).

The court gave the jury a special verdict sheet with contributory negligence. The jury found the doctor did not breach the standard of care and did not reach the contributory negligence question. The plaintiffs appealed, arguing that the court erred in allowing the contributory negligence defense and that it was not a harmless error. (Id. at 1).

Court of Special Appeals on Contributory Negligence in Medical Malpractice

The CSA observed that Maryland cases had allowed a contributory negligence defense in medical malpractice cases, but only when the plaintiff failed to follow the doctor’s instructions after the treatment at issue. (Id. at 9). However, this case presented whether a doctor can raise pretreatment conduct as contributory negligence. (Id. at 10-11).

The CSA noted that the Restatement of Torts recited that pretreatment conduct cannot be contributory negligence. (Id. at 12-13). Almost all decisions from other states agree. (Id. at 13-20). Consequently, the CSA held that the circuit court erred by allowing the defense, instructing the jury, and including the defense on the special verdict sheet. (Id. at 20).

The CSA also held that the error was not harmless. The defense specifically and repeatedly invoked the defense in every phase of the case. (Id. at 21-22). Moreover, the use was not separate from the discussion of breach of the standard of care. Instead, the defense repeatedly argued that the plaintiff’s conduct made it so that the doctor was not negligent. (Id. at 22-23). The CSA reversed the judgment. (Id. at 25).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Contributory Negligence

The Barbosa court reached the right decision. The treatise and every court that the CSA cited also compel this result.

It’s not surprising that the defense raised the issue. The defense will go after whatever it can get. It is astonishing, however, that the circuit court allowed it in light of the authority to the contrary.

It is a fundamental principle that tortfeasors take the plaintiff as they find them. Doctors treat patients as they present, and this principle ensures the fairness of the legal system. 

Doctors defend cases by focusing on their conduct without the need to go after their patients. If a patient’s delay in seeking treatment made them very sick, then a jury will evaluate the doctor based on the challenge of treating a very sick person. The jury will assess the reasonableness of the doctor’s conduct based on the setting in which it occurred.

Irrelevance

Consider the potential ‘irrelevancies’ that could be injected into medical malpractice cases if contributory negligence based on pretreatment conduct was allowed.  Doctors would constantly defend their cases by putting the patients on trial, scrutinizing whether they could use any patient’s failure to get immediate medical treatment against the patient. This diversion would not only distract from the central issue of the doctor’s conduct but also result in what happened in Barbosa  – the entire case was an attack upon the patient, leading to a shift in focus from the doctor’s actions to the patient’s decisions.

It is also unfair because patients do not have the same medical knowledge as doctors. For example, a patient may not appreciate the ramifications of specific symptoms and may be unaware of the optimal time to seek care. The doctor, however, would be using their knowledge to show that the plaintiff’s decision was not optimal. This attack would be unfair, as it places the burden of medical knowledge and decision-making on the patient, who may not be equipped to make the same decisions as a doctor.

The Barbosa decision ensures that the jury’s focus will remain where it belongs  – on the doctor’s conduct and whether it caused injury. This precedent will influence future medical malpractice cases, setting a standard for the inadmissibility of contributory negligence based on pretreatment conduct.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.