Redundant Instructions: Foss v. McKoy
The Baltimore Medical Malpractice Lawyer Blog, a platform that delves into the intricacies of Maryland appellate opinions in medical malpractice cases, presents a detailed analysis of the May 9, 2025, Appellate Court of Maryland unreported opinion in Foss v. McKoy, No. 345. The issue in this case involves redundant jury instructions.
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:
- 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.
- 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.