183 A.3d 785
Md. Ct. Spec. App.2018Background
- On June 12, 2013 Joao Barbosa presented to an ER with severe abdominal pain, had tests ordered, left before being seen by a physician, and was labeled an elopement; he returned 11 days later with worsened symptoms.
- An ultrasound then showed acute cholecystitis and possible gallstones; Dr. Tanisha Osbourne admitted him and recommended laparoscopic cholecystectomy with cholangiography; Barbosa consented.
- During surgery Dr. Osbourne encountered dense adhesions, abandoned the planned cholangiography, and (with assistance) proceeded with gallbladder removal; bile was noted where it should not be and a subsequent ERCP and transfer confirmed bile-duct injury.
- Barbosa required repair at a tertiary center, including replacement of a damaged right hepatic artery; plaintiffs sued Dr. Osbourne for medical malpractice and loss of consortium.
- Dr. Osbourne defended on the merits and also asserted contributory negligence based on Barbosa’s pre-treatment conduct (leaving the ER and delaying return), arguing that the delay made the surgery more difficult and caused the bad outcome.
- The trial court allowed the contributory-negligence defense, instructed the jury on it, and provided a special verdict sheet including that question; the jury found no breach of the standard of care and the Barbosas appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a treating physician may assert contributory negligence based solely on a patient’s pre-treatment conduct that preceded any diagnosis or care | Barbosa: Pre-treatment conduct that creates the condition treated cannot be used as contributory negligence against a subsequent treating physician | Osbourne: Barbosa’s delay in returning to care caused adhesions and complications, so his delay contributed to the injury and is a valid defense | Pre-treatment patient conduct is not a proper basis for contributory negligence in a malpractice action against the subsequent treating physician; trial court erred to allow and submit that defense |
| Whether the trial court erred in instructing the jury and including a special verdict form on contributory negligence | Barbosa: The instruction and verdict form amplified and improperly conflated the defense into all stages of the trial, prejudicing the jury | Osbourne: Any error was harmless because the special verdict required the jury to find breach first before considering contributory negligence, and the jury found no breach | Error was not harmless: the defense pervaded opening, cross-exam, expert testimony, and closing; it likely influenced the jury’s consideration of breach and therefore reversal is required |
| Standard for when contributory negligence may be submitted in medical malpractice cases | Barbosa: Contributory negligence requires evidence of a patient’s failure to follow medical instructions or to act with knowledge of the danger after treatment began | Osbourne: Broad application to any negligent patient conduct that contributed to the condition or outcome | Court: Contributory negligence in malpractice is limited to post-treatment failures to follow instructions or similar conduct; pre-treatment conduct that created the condition is irrelevant to liability for the physician’s standard of care |
| Appellate standard for reviewing whether contributory-negligence evidence raises a jury question | Barbosa: Review de novo whether evidence permits submission of contributory negligence | Osbourne: N/A (did not dispute standard) | Court reviews the legal sufficiency de novo and found no legal basis to submit pre-treatment conduct as contributory negligence |
Key Cases Cited
- Dingle v. Belin, 358 Md. 354 (medical malpractice requires deviation from standard of care among similarly situated practitioners)
- Dehn v. Edgecombe, 384 Md. 606 (medical malpractice is tortious; general negligence rules apply)
- Thomas v. Panco Mgmt. of Maryland, LLC, 423 Md. 387 (contributory negligence requires knowledge/appreciation of danger)
- Hall v. Univ. of Maryland Med. Sys. Corp., 398 Md. 67 (de novo review of legal questions regarding submission to jury)
- Moodie v. Santoni, 292 Md. 582 (contributory negligence permitted where patient disregarded physician’s instructions while under treatment)
- Santoni v. Moodie, 53 Md. App. 129 (patient cannot be contributorily negligent for failing to diagnose own illness or for risks of which he had no foreseeability)
- Jensen v. Archbishop Bergan Mercy Hosp., 459 N.W.2d 178 (Neb. 1990) (pre-treatment conduct that creates the condition treated is not a basis for contributory negligence in subsequent malpractice suit)
- Cavens v. Zaberdac, 849 N.E.2d 526 (Ind. 2006) (as a matter of law, pre-treatment patient negligence is insufficient to create a contributory-negligence jury issue against treating physician)