Nonparty Cause: Martinez v. JHH 1
The Baltimore Medical Malpractice Lawyer Blog examines issues in Maryland medical malpractice cases. In this post I look at when defendants can introduce evidence of a nonparty’s negligence as the sole cause of a medical malpractice injury. The case is a reported opinion by the Court of Appeals of Maryland (now Appellate Court of Maryland). The cite is Martinez v. Johns Hopkins Hospital, 212 Md. App. 634 (2013). It explores if a jury should evaluate the potential negligence of a non-party who treated the patient before they arrived at the hospital. The court looked at whether a hospital can introduce evidence regarding a private midwife’s breach of the standard of care. The point would be to establish that the midwife’s actions were the sole proximate cause of a child’s birth injuries.
This post is Part 1 of a series looking at this decision. In this first post, I focus on the admissibility of non-party medical negligence in a complete denial of liability defense.
Factual Background on Nonparty Cause of Medical Malpractice
The medical malpractice action started from a home birth attempt. It was difficult before the mother transferred to a major medical institution. The mother was ten days overdue with her first child. She initially elected to undergo a natural birth at home. It was under the supervision of a private registered nurse-midwife and a labor coach. There was prolonged labor. It lasted 14.5 hours in the first stage and and also an additional five hours in the second stage. Complicating the delivery, the baby was in an occiput posterior position. The baby was facing forward rather than toward the mother’s spine. This frequently impedes progress through the birth canal.
In an effort to expedite the delivery at home, the midwife then performed several highly controversial medical interventions:
- Fundal Pressure: The midwife applied forceful manual pressure to the mother’s abdomen two or three times to push the child through the birth canal.
- Pitocin Injections: The midwife administered multiple intramuscular injections of Pitocin. It is a hormone to increase the strength and frequency of contractions. This also was in a home setting where there was no fetal heart rate monitoring.
- Premature Episiotomy: The midwife performed an episiotomy to enlarge the vaginal opening. This was while the baby was only at a +1 station. This was long before the baby’s head was crowning.
- Alternative Bacterial Treatment: Rather than administering standard IV antibiotics for the mother’s positive Group B Streptococcus status, the midwife instructed her to use a probiotic treatment.
Hospital
Realizing the delivery was failing, the midwife sutured the episiotomy and called an ambulance. The mother arrived at the hospital as an unknown patient at 3:30 a.m. Hospital doctors determined that a vaginal delivery was impossible due to cephalopelvic disproportion. This means the baby’s head could not pass through the pelvic area. They ordered an urgent Caesarean section. To perform the surgery safely via spinal or epidural anesthesia, the hospital ordered mandatory “stat” blood test. This was to check the mother’s platelet count and blood type.
The hospital encountered severe delays in obtaining these blood samples. It alleged that the mother was highly uncooperative, combative, and actively resisted care by removing medical devices and shouting at medical providers. After blood tests were successfully re-ordered and evaluated, the mother was taken to the operating room, and the baby was delivered at 5:40 a.m. in poor condition. The child now suffers from permanent cerebral palsy (CP), developmental delays, and other severe disorders.
The plaintiff filed suit against the hospital, saying that its medical team negligently delayed performing the Caesarean section. The plaintiff asserted that the standard of care required a delivery by 4:15 a.m. and that the hospital failed to recognize ominous signs of fetal distress on the heart monitor. Following a two-week trial, a Baltimore City jury returned a verdict, awarding the plaintiff $4 million for lost wages, $25 million for future medical expenses, and $26 million for non-economic damages, culminating in a $55 million judgment. The trial court subsequently reduced the non-economic damages to $680,000 under Maryland’s statutory cap and adjusted lost wages, leaving the medical expenses intact. Both parties filed cross-appeals.
The Parties’ Arguments on Nonparty Cause of Medical Malpractice
The primary issue on cross-appeal focused on a pre-trial motion in limine filed by the plaintiff. It sought to entirely exclude any testimony regarding the professional standard of care applicable to nurse-midwives or any assertion that the midwife breached that standard.
The Hospital’s Arguments
The hospital opposed the motion, arguing that the midwife’s gross deviation from the standard of care was central to its defense. The hospital asserted a complete denial of liability, contending that it was not negligent and did not cause the child’s brain damage. Instead, the hospital argued that the injuries were entirely and irreversibly inflicted hours prior to the patient’s arrival at the hospital due to the midwife’s actions.
To support its position, the hospital pointed to:
- Expert Witness Deposition: Expert testimony stating that the midwife’s unmonitored, massive intramuscular injections of Pitocin caused “uterine tetany” (continuous contractions without relaxation), completely cutting off the oxygen supply to the fetus and causing the ultimate neurological damage.
- Physical Trauma: Expert evidence showing that the baby suffered a cephalic hematoma due to physical trauma from the midwife trying to force the baby’s head through a narrow pelvis using fundal pressure during a five-hour second-stage labor.
- State Board Actions: An emergency order from the Maryland Board of Nursing that had suspended the midwife’s license for violating the Nurse Practice Act during her treatment of the mother.
The Plaintiff’s Arguments
The plaintiff argued that under Maryland’s system of joint and several liability, any negligence by a non-party was completely irrelevant to whether the hospital’s independent delays also contributed to the injury. The plaintiff maintained that if the jury found the hospital was even a partial cause of the injury, the hospital would be fully liable. Therefore, introducing standard of care violations of a non-party would only serve to unfairly prejudice the plaintiff, confuse the jurors, and waste time by putting an “empty chair” on trial.
The Court’s Ruling on Nonparty Cause of Medical Malpractice
The trial court originally granted the plaintiff’s motion in limine. It forbid the hospital from using words like “negligence” or “deviation from the standard of care” when describing the midwife’s interventions. It restricted the hospital to introducing only the raw physical facts of what the midwife did and how the hospital staff reacted.
The Court of Special Appeals reversed the judgment. It remanded the case for a brand-new trial, holding that the trial court committed an abuse of discretion that denied the hospital a fair trial.
1. Issue Preservation and Waiver
The court first dismissed the plaintiff’s procedural argument that the hospital had waived the issue by failing to repeatedly proffer the excluded evidence during the trial. The appellate court said that when a trial judge makes an explicit, unconditional final ruling on a motion in limine to exclude evidence, the proponent is not required to disrupt the trial with futile offers of proof to preserve the issue for appeal.
2. Relevancy of a Non-Party’s Negligence
The court addressed a novel question in Maryland. Is evidence of a non-party’s professional negligence relevant when a defendant asserts a complete denial of liability? The court answered with a yes. It ruled that negligent medical treatment is fundamentally more likely to cause severe trauma than non-negligent, standard care. The trial court stripped away the context of the midwife’s breach of care. It left a “logical hiatus” in the narrative presented to the jury.
“With no one allowed to show what part the [non-party’s] conduct played, the jury would be left to wonder whether anyone other than the defendant could have caused [the] plaintiff’s injuries.”
3. Contributory vs. Comparative Negligence Context
The court rejected the plaintiff’s argument that “empty chair” defenses are only appropriate in states with comparative negligence systems. That’s where fault is apportioned among tortfeasors. The court explained that when a defendant seeks complete exoneration on the grounds of sole proximate causation, the underlying tort system (comparative or contributory) is irrelevant. If a non-party’s negligence is the 100% sole cause of an injury, the defendant cannot be “a” cause of the injury. This means liability never attaches to the defendant in the first place.
4. The Ruling Was Not Harmless Error
The appellate court specifically emphasized that the error was prejudicial. The plaintiff actively exploited the trial court’s restrictive ruling. During the trial, the plaintiff’s counsel and experts suggested to the jury that the midwife’s actions were standard, benign, and completely appropriate. They portrayed her as an experienced professional whose methods were just “how midwives practice”. The trial court barred the hospital from demonstrating that these methods were actually dangerous, illegal, and flagrant standard of care violations. Thus, the evidence gave the jury a one-sided picture of the facts.
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Nonparty Cause of Medical Malpractice
Defendants in medical malpractice cases rarely admit their errors. It is amazing that in nearly every case, defendant doctors can find some “expert” doctor to state under oath that the defendant did not commit malpractice. You would think that there is never any malpractice being committed. However, those same defendant doctors agree to large settlements in a high percentage of cases.
That defense testimony often involves blaming a nonparty for solely causing the injury. This can be frustrating for plaintiffs. The defendants do not bring those other actors into the case as parties. That would allow those actors to defend themselves. As a result, the plaintiffs are then forced to take that role.
These concerns are weighed against the important principle that juries should generally be given a complete of picture of what happened in a case. Of course, this is subject to rules of evidence that prevent irrelevancy and prejudice. However, when it comes to who caused an injury at issue, both parties should be allowed to put on their expert cases.
Here, the trial court had precluded the defense from showing that the actual sole cause of the baby’s injury was the midwife. That left the jury without any way to assess the actions of the midwife that preceded the hospital’s involvement.
Plaintiffs can be frustrated when such evidence is a weak attempt to evade responsibility. However, the answer is for plaintiffs to demonstrate that weakness, not to prevent the defense from putting on the expert supported evidence.
Notes
The docket shows that the case was closed out several months after returning to the trial court. That means that the parties likely settled the case.
You can also read other Blog posts on cases with causation issues., and specifically involving nonparty malpractice:
- Nonparty Malpractice: American v. Reiss 1
- Verdict Sheet Nonparty Malpractice: American v. Reiss 2
- Intervening & Superseding Negligence: Copsey v. Park
- Settlement Admissibility: Glory Days v. Fletcher
- Subsequent Negligence: Browne v. State Farm
Stay tuned for Part 2 of this series. I will then cover the remainder of the court’s opinion. It focused on the distinctions between ordinary medical malpractice claims and unpled informed consent theories. Specifically regarding the utilization of general anesthesia.
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.