Factual Background

The plaintiff filed a survival and wrongful death suit against a doctor in the Circuit Court for Prince George’s County based on the death of her husband. At trial, the jury found that the doctor did not breach the standard of care. The plaintiff then appealed based on the jury instructions. (Op. at 1-2).

The decedent had a family history of heart disease and went to his primary care physician after experiencing ongoing chest pain. The doctor did an EKG, which was abnormal. He then diagnosed the decedent with GERD and gave referrals for a gastroenterologist and cardiologist. The doctor said he encouraged the decedent to go to the emergency room. He gave the referrals only after the decedent said he would not go to the ER. The doctor did not document the abnormal EKG and ER referral. (Id. at 2-3).

The decedent died at home 2 days later. A private autopsy found significant atherosclerosis and concluded that the cause of death was cardiac arrhythmia due to a blood clot. (Id. at 3).

Pattern Instructions

The defendant submitted two non-pattern jury instructions:

1. In order to prevail in a medical malpractice action, the plaintiff must prove, by a preponderance of the evidence: 

(1) The standard of care and skill expected of reasonably competent health care providers with similar training and experience as the defendant, situated in the same or similar communities as the defendant, and acting in similar circumstances at the time of the alleged acts giving rise to the cause of action; and 

(2) That the Defendant failed to comply with the standard of care; and 

(3) That the failure of the defendant to comply with that standard was a cause of the damages claimed by the plaintiff. 

1. Plaintiff’s claims must be supported by expert testimony establishing that the causal connection between the conduct and the outcome was more medically probable than not. (Id. at 4-5).

The plaintiff argued that the instructions were duplicative of the pattern jury instructions and unnecessary. (Id. at 5-6). The court gave the jury a verdict sheet with questions. The jury answered no to the first question, whether the doctor breached the standard of care. (Id. at 6).

Appellate Court on Redundant Jury Instructions

The Appellate Court first addressed the plaintiff’s claim that the redundant instructions required reversal. The court found no indication that redundant instructions might have confused the jury. The court noted that the parties’ contentions about the standard of care were straightforward. (Id. at 11).

The plaintiff also argued that the first instruction improperly incorporated a causation element. The Appellate Court noted that the plaintiff did not raise that argument in the trial court, so the plaintiff did not preserve it. (Id. at 9). The court added that this claim was factually incorrect. The first instruction did not reference causation. Accordingly, the court affirmed the judgment. (Id. at 12).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Redundant Jury Instructions 

The plaintiff did not have much chance of success on this appeal due to the legal principles that govern jury instructions. The first principle is that a party can propose, and the trial court can use a jury instruction, which is an accurate statement of the law. The second principle is that the appellate court will not reverse a verdict based on giving redundant jury instructions without evidence of confusion.

In this case, the instructions were redundant, but there was no evidence of confusion. In addition, the plaintiff could not show that the instructions failed to state the law accurately.

There is a better way. In most medical malpractice cases, it should be unnecessary to add to the pattern jury instructions. There is no reason for trial courts to allow redundant jury instructions. Jury instructions are already complicated for many juries to follow. The better practice is to keep it as simple as possible. 

When the facts of a case present an issue that the pattern instructions do not adequately cover, the trial court can consider a custom instruction based on case law.

Testimony Concerning Conversation

There was another interesting dynamic in this case. The decedent was aware of the family history of heart disease, and as a result led an active and healthy life. When the decedent had chest pain for several days, he went to his doctor. However, the doctor claimed that despite all of this proactive concern for his health, the decedent rejected the doctor’s recommendation to go to the emergency room. Even more surprising is that when the decedent allegedly dismissed the advice, the doctor never wrote down that the EKG was abnormal, the advice he had given to the decedent, or that the decedent had rejected it.

At trial, the decedent could not testify as to that conversation. As a result, the doctor was the only one who would testify concerning it. This imbalance of testimony provided a significant advantage to the defense.

I have seen a situation where a doctor took this advantage and testified to details that had not occurred. His testimony seemed exaggerated. In that case, the jury found against the doctor. In this case, the jury was in the best position to evaluate the doctor’s credibility and found for him.

You can read other Blog posts on jury instructions.

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 plaintiff underwent surgery on his neck in which the defendant neurosurgeon removed discs and fused vertebrae. (Op. at 1, 3). An infection developed, and the plaintiff had neck pain and limited range of motion. (Id. at 3).

The plaintiff filed suit in the Circuit Court for Baltimore County. The plaintiff asserted that the defendant breached the care standard and failed to obtain informed consent. (Id. at 4). The trial began on Tuesday, May 17. During jury selection, the judge informed the jury that it expected the trial to take seven days and would finish no later than Wednesday, the 25th, shortly before Memorial Day weekend. (Id. at 4).

The court submitted the case to the jury on Monday, May 23, a day before the court had predicted. (Id. at 5). On the third day of deliberations, at 2:00 pm, the jury sent the court a note asking what would happen if the jury could not decide. (Id. at 11). 

The court proposed giving the jury a “modified Allen charge” to encourage them to resolve, and limited deliberations to an additional hour to see if they could agree upon a verdict. No one discussed addressing the jury’s specific 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. (Id.).

The defense objected to the charge and proposed instructing the jury to return to deliberations and allowing them to deliberate until the end of the day. (Id. at 12).

Instructions

At 2:15 pm, the court instructed the jury, first responding to their question. The court’s response to the jury’s question was clear and decisive: “If eventually the jury is unable to reach a unanimous decision, a mistrial will be declared, and the parties would decide then if they were to try the case again or take some other actions. It would be up to them.” This response set the stage for the court’s subsequent actions.

Then the court gave a modified Allen charge from the Maryland pattern jury instructions. (Id.).

The court then issued a directive to the jury: “So I’m going to ask you to deliberate another hour. I know that you have been at it pretty hard. We have been in the courtroom and have heard you from time to time and can’t hear what you say. We just hear words being said…. And we will see if you can reach a verdict today…. I’m not going to ask you to return tomorrow, but I do want you to try again.” This instruction could have influenced the jury’s decision-making process.

An hour later, the jury reported its verdict. The jury found the defendants negligent and awarded $329,000 in damages. The jury also found for the defense on the informed consent claim. (Id.). 

The doctor appealed, and the Court of Special Appeals reversed, finding that while the circuit court’s giving of the modified Allen charge was appropriate, the court abused its discretion by limiting deliberations in telling the jury that deliberations would continue just one more hour. The plaintiff then appealed to the Court of Appeals. (Id. at 15).

Court of Appeals on Limiting Deliberations

On appeal, the defense contended the circuit court abused its discretion in granting the modified Allen charge and argued that imposing a one-hour deadline on deliberations was coercive. (Id. at 33).

The defense argued that the jury did not state it was deadlocked and asked what would happen if it did not reach a verdict. However, the Court of Appeals noted that there is no requirement of deadlock for an Allen charge. (Id.).

The court stated that a trial judge’s decision to keep the jury informed of the timetable for the trial does not necessarily convert an appropriate Allen charge into a coercive one. (Id. at 36). On the contrary, leaving the jurors in the dark would have likely raised concerns about when they would be allowed to stop deliberating. It also might have served to coerce a verdict to get to the end of jury service. (Id. at 37). Moreover, the trial judge specifically did not insist on a verdict. The judge said we’ll see if you can reach a verdict. (Id. at 38). The Court of Appeals concluded the trial court did not err. (Id. at 39).

Two judges dissented, concluding that adding the one-hour time limit to the Allen charge was coercive. (Dis. at 1).

Commentary by the Baltimore Medical Malpractice Lawyer on Limiting Deliberations

The majority and dissent present different views on the appropriateness of the trial judge’s statement that the jury would be given one more hour to deliberate. They each take different views of coerciveness. The majority focused on the trial court’s statement to the jury that their service would end that day. With only two hours left, the majority believed that sending the jury back to deliberate without any timing comment could be coercive. The jurors might wonder if they would have to return the next day if they did not return a verdict.

The dissent believed that telling the jury they only had an hour to deliberate was coercive.

It is impossible to say who is right. Ideally, the court is not limiting deliberations by telling the jury when their deliberations will end. However, the court should balance that against the schedule they have already told the jury. In this case, there was repeated emphasis from the beginning of the trial that this would be the last day of jury service. The jury had repeatedly raised concerns about when their service would end. There were only two hours left in the day. Under these circumstances, I don’t believe the trial court’s sending the jury back for one more hour of deliberations was improper, particularly since the court did not tell them to reach a verdict but instead said we will see if you can. 

Regardless of how you view this issue, judicial economy favors upholding the trial court’s decision.

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 on General Negligence Jury Instructions

The plaintiff underwent surgery on his neck in which the neurosurgeon removed discs and fused vertebrae. (Op. at 1,3). An infection developed, and the plaintiff developed with neck pain and limited range of motion. (Id. at 3).

The plaintiff filed suit in the Circuit Court for Baltimore County. The plaintiff asserted that the defendant breached the care standard and failed to obtain informed consent. (Id. at 4).

Jury Instructions

At trial, when the circuit country instructed the jury, it primarily used the pattern jury instructions. This appeal focused on three of the instructions. The circuit court gave general instructions on negligence and foreseeability as follows:

“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.” (Id. at 7).

The circuit court also instructed on the negligence of a healthcare provider:

“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.” (Id. at 8).

Defense Objection

The defense objected to the foreseeability instruction as not applicable. It also argued that it confused whether the doctor had to see into the future and, therefore, have a heightened duty to foresee a bad outcome. This potential confusion related to the informed consent claim. (Id. at 9-10).

The jury found the defendants negligent and awarded $329,000 in damages. The jury found for the defense on the informed consent claim. (Id. at 14). 

The doctor appealed the decision of the Court of Special Appeals, a higher court than the Circuit Court. The Court of Special Appeals reversed. The plaintiff appealed. The Court of Appeals, which is the focus of this post, is responsible for reviewing the decisions of lower courts and has the final say in legal matters in Maryland. (Id. at 15).

Court of Appeals

The general principles that govern negligence also apply to medical malpractice claims. The standard of care in a negligence action is whether a reasonable person in similar circumstances. (Id. at 18). Accordingly, the standard of care for a doctor is a reasonably competent practitioner in the same specialty in similar circumstances. (Id. at 19-20).

The Court of Appeals noted that it had never held that giving general negligence instructions in a medical malpractice case is an error. (Id. at 21). The court stated that general negligence instructions are not wrong or misleading. However, it noted that it is helpful to expressly state that the general negligence instructions are a preface to the particular medical malpractice instructions. (Id. at 25).

Prejudice

The court then turned to whether the defendants established the instruction had prejudiced them. (Id.). The court found that the existence of prejudice was close to nil. No one suggested that the defendant was to be measured by a reasonable person. On the contrary, lawyers for both sides repeatedly said that the standard was a reasonable doctor. (Id. at 26). In any event, the general negligence instruction is a lesser standard than the doctor’s standard so that the application would have benefitted the defendant. (Id. at 27-28).

The court then turned to the foreseeability instruction. The court again noted that no decision had banned the general foreseeability instruction in a medical malpractice case (Id. at 30). In addition, it caused no prejudice. The defense’s concern was confusion with the informed consent claim. However, the defense prevailed on that claim. (Id. at 31-32).

Accordingly, the court’s comprehensive analysis concluded that the circuit court did not abuse its discretion in giving the general negligence jury instructions. Nor did the defense establish the prejudice required to overturn a jury verdict, demonstrating the court’s thoroughness and commitment to justice. (Id. at 38).

Commentary by the Baltimore Medical Malpractice Lawyer on General Negligence Jury Instructions

This decision was straightforward for the Court of Appeals. At trial, the defendant did not even complain about the general negligence instruction on the standard of care. Only after winning a surprising victory in the Court of Special Appeals did the defendant try to make that issue the more important of the two negligence instruction issues. The Court’s clear and decisive ruling serves as a testament to the fairness of the legal process. (Id. at 19).

The circuit court’s instructions clearly showed that the specific instruction on the doctor’s standard of care applied the general negligence standard. Moreover, throughout the trial, lawyers for both sides repeatedly applied the doctor-specific standard.

As for the foreseeability instruction, the only concern the defense expressed at trial was confusion about the informed consent claim. Since the defense won that claim, there is no possibility of prejudice.

The Court of Appeals quickly dispatched these issues. In part 2 of this Blog post, I will discuss the Allen charge issue, another important aspect of this case. The Allen charge, also known as the ‘dynamite charge ‘, is a supplemental jury instruction given when the jury is deadlocked and unable to reach a verdict. I will explore its implications for medical malpractice law.

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.

Circuit Court Answered a Jury Note

Here, I will summarize the facts again. The defendant’s SUV struck a car in which the plaintiff was a passenger. The collision force caused the plaintiff’s car’s airbags to deploy, and the window glass to shatter. As a result, the vehicle spun around. (Op. at 2).

The plaintiff was diagnosed and received treatment for a concussion and fractured ribs. She then continued to have headaches, dizziness, nausea, fatigue, sensitivity to noise and light, and difficulty concentrating. Medical providers specifically treated the plaintiff for nine months, including speech therapy. (Id).

After a three-day trial on damages only, the jury awarded the plaintiff $32,000 in non-economic damages and zero in future medical expenses (Id. at 1). The circuit court then granted the plaintiff’s motion for a new trial, finding the verdict against the great weight of the evidence.

The plaintiff did not testify at the second trial and withdrew the claim for future medical bills. There was a jury note, and then the jury returned a verdict for the plaintiff of $1,042,000 in non-economic damages. (Id. at 1, 13).

Second Trial Facts

In the second trial, the plaintiff’s neurologist opined that the plaintiff would need assisted living care in 5-7 years. However, unlike the first trial, he did not testify concerning the cost of that care. The plaintiff did not submit a claim for future medical expenses to the jury. (Id. at 23).

The circuit court instructed the jury to itemize the verdict for non-economic damages in the past and for the future (Id. at 23-24). During deliberations, the jury submitted a note: “What does it mean to itemize the verdict? Break down the money amounts? Pain suffering? Assisted Living?” (Id. at 24).

The defense asked the court to specify that the plaintiff was not seeking future medical expenses. The plaintiff argued that the instructions and argument had clearly stated that only pain and suffering were at issue (Id. at 25).

The circuit court wrote to the jury, stating: “Your verdict need only to provide an answer to the first question and, if necessary, a figure for non-economic damages, based on the evidence at trial.” The defense counsel did not object at this time, and both counsels signed the note. Twenty minutes later, the jury awarded the plaintiff $1.04 million in non-economic damages (Id. at 25-26).

Appellate Court

On appeal, the plaintiff argued that the defense had waived this issue by not objecting to the court’s determination not to further instruct the jury on damages. The Appellate Court rejected this argument, finding that the defense had made its position known. Signing off administratively on the response was not a waiver (Id. at 26).

The Appellate Court then ruled that the circuit court abused its discretion by failing to “answer fully” the jury’s question and that the error prejudiced the defendant. (Id. at 27). The jury asked whether they should itemize damages for assisted living. The Appellate Court wrote:

“It is plain from this question that the jury was speculating on the cost of assisted living, and the court had an obligation to instruct them, as requested by defense counsel, that future medical expenses were not before them for consideration. The failure to do so introduced the possibility that the verdict was infected with improper considerations of damages that [the plaintiff] did not seek.” (emphasis added). (Id.).

Commentary By the Baltimore Medical Malpractice Lawyer

This issue is a close one that could have gone either way. The circuit court’s response to the jury’s note specifically told them that they need only provide a figure for non-economic damages. A reasonable person reading this note should understand that the only damage category for consideration was non-economic damages. Correspondingly, that would mean that anything else, including assisted living, would not be considered.

However, the Appellate Court found that the circuit court had not answered the note “fully.” That would have required some reference to not considering assisted living damages.

I believe the Appellate Court’s ruling is fair. The court’s goal in answering a jury question should be to clearly and fully resolve their uncertainty. Here, including a directive not to consider assisted living damages would have been easy and clear. Since the jury had specifically asked about that category, such a response would have directly answered what the jury raised and left nothing unaddressed.

Lawyer’s Strategy

Why did the plaintiff’s counsel oppose the defense’s complete response? We don’t know. Sometimes, counsel will automatically oppose what the other side wants based on the theory that it must be negative for me if they want it. 

Additionally, the plaintiff may have thought that they may benefit from any uncertainty, and maybe the jury would award damages for assisted living without naming it that. That would be a dangerous strategy, as demonstrated by this undesired outcome for the plaintiff. It is also important to remember that a trial lawyer must decide in this circumstance instantly, without the benefit of any time to research or consider all of the options and ramifications. 

The plaintiff lost the excellent verdict she received. The verdict exceeded the Maryland cap on non-economic damages. As a result, the jury’s decision in the second trial had been the best possible outcome for her.

Now, the plaintiff will incur the additional time and cost of re-doing the trial for the third time. If the plaintiff can replicate the second verdict, then the harm from the extra time and cost will not be too bad. However, if the verdict is substantially less, there will undoubtedly be regret over having opposed the complete instruction the defense had proposed to the jury note.

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.