Armacost v. Davis, 69, Sept. Term, 2017

• Court: Court of Special Appeals of Maryland
• Citation: 200 A.3d 859,462 Md. 504
• Docket Number: No. 69, Sept. Term, 2017,69, Sept. Term, 2017
• Parties: Mark ARMACOST v. Reginald J. DAVIS
• Decision Date: 25 January 2019

462 Md. 504
200 A.3d 859

Mark ARMACOST
v.
Reginald J. DAVIS

No. 69, Sept. Term, 2017

Court of Appeals of Maryland.

January 25, 2019

Argued by Alison D. Kohler (Henry E. Dugan, Jr. and George S. Tolley, III, Dugan, Babij, Tolley & Kohler, LLC of Timonium, MD), on brief, for Petitioner

Argued by J. Jonathan Schraub (Madelaine A. Kramer, Sands Anderson PC of McLean, VA), on brief, for Respondent

Amici Curiae Medical Mutual Insurance Liability Society of Maryland; MedChi, the Maryland State Medical Society; and the American Medical Association in Support of Respondent: Mitchell Y. Mirviss, Esquire, Christopher S. Gunderson, Esquire, Venable LLP, 750 East Pratt Street, Suite 900, Baltimore, MD 21202

Argued Before: Barbera, C.J., Greene,^* Adkins, McDonald, Watts, Hotten, Getty, JJ.

McDonald, J.

462 Md. 510

A judge presiding at a jury trial provides direction to the jury on several topics, including: (1) the law governing its consideration of the evidence – e.g., the burden of proof, direct and circumstantial evidence, the credibility of witnesses, expert testimony; (2) the law governing the specific issues that the jury must decide; (3) the process by which the jury is to conduct its deliberations; and (4) housekeeping matters – e.g., the trial schedule, how to communicate with the court, where and when to report. Most of the court's instructions on the law are given after the close of the evidence, but certain instructions

462 Md. 511

may be given at the outset of the trial, during its course, or in response to jury questions or notes. A trial court enjoys a fair amount of discretion in what it tells the jury, although any instructions it gives must be consistent with the law.

This case concerns two sets of instructions given in a medical malpractice case. The action was brought by Petitioner Mark Armacost against Respondent Dr. Reginald Davis, a neurosurgeon at the Greater Baltimore Medical Center ("GBMC"), who had performed surgery on Mr. Armacost. A jury in the Circuit Court for Baltimore County returned a verdict finding that Dr. Davis had been negligent.

The first set of jury instructions at issue was given at the close of the evidence and concerned what is necessary to prove medical malpractice. The trial court recited standard pattern instructions on negligence, foreseeability, and causation before particularizing the standard of care applicable to a health care provider – i.e ., that the provider must exercise the "degree and skill which a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances would use." Dr. Davis contends that, while all of these instructions correctly state the law, the trial court misled the jury as to the standard of care applicable to his conduct when it prefaced the instruction on the standard of care applicable to health care providers with two of the general negligence instructions.

The second set of instructions at issue was given on the third day of jury deliberations

200 A.3d 864

after a jury note suggested that the jury might be deadlocked. In response, the trial court urged the jurors to give careful consideration to each other's views while not surrendering a sincerely held belief – what is known as a "modified Allen charge." The court also informed the jury, some of whose members had expressed concerns about the trial schedule throughout the trial, that it would require the jury to deliberate only for another hour and would not ask them to return for a fourth day of deliberation. After engaging in additional deliberation that afternoon, the jury returned its verdict. Dr. Davis contends that the modified

462 Md. 512

Allen charge, coupled with the information that the jury's deliberations would come to an end soon, was "unduly coercive."

We hold that, while the trial court's instructions on the applicable law might have been phrased better, those instructions, considered as a whole, did not mislead the jury as to the applicable law. Nor has Dr. Davis demonstrated, on the record of this case, the probable prejudice necessary for reversal of the jury's verdict.

We also hold that the trial court did not abuse its discretion in giving the modified Allen charge. In the context of a case in which the jurors had expressed concern about the court's schedule during the trial, it was not an abuse of discretion to advise the jury how long it would be required to continue its deliberations.

I

Background

The legal questions that we must answer in this case concern certain jury instructions given by the trial court. Resolution of these questions does not depend on the precise allegations of medical malpractice that were at issue at trial. To provide some context, however, we briefly summarize those allegations and the testimony at trial, as well as the pertinent instructions that were given.

A. Facts

In January 2012, Mr. Armacost first visited Dr. Davis. Mr. Armacost told Dr. Davis that he had recently begun to experience numbness in two fingers of his right hand, and that he had suffered intermittent neck and shoulder pain in the past. Dr. Davis recommended surgery. The surgery was performed in March 2012 at GBMC. Dr. Davis removed damaged discs from Mr. Armacost's spine and fused vertebrae in his neck.

Sometime after the surgery, an infection developed at the location of the operation. Mr. Armacost made additional visits

462 Md. 513

to GBMC and to various physicians, including Dr. Davis, and was hospitalized in August 2012 as a result of the infection. When this case was tried in 2016, Mr. Armacost was still afflicted with neck pain and hampered by a severely limited range of motion.

B. Court Proceedings

The Complaint

On November 3, 2014, Mr. Armacost filed suit against Dr. Davis and GBMC in the Circuit Court for Baltimore County.¹ The first count of the complaint alleged negligence – that is, that the treatment of Mr. Armacost violated the standard of care expected of reasonably competent health care providers. The second count of the

200 A.3d 865

complaint alleged a failure to obtain informed consent – that is, that Dr. Davis and GBMC had failed to inform Mr. Armacost of the risks and of appropriate alternatives for treatment at the time he agreed to undergo the surgery. The complaint stated that Mr. Armacost had suffered various injuries and damages as a result of the alleged negligence and failure to obtain informed consent. Dr. Davis and GBMC each filed an answer raising various defenses and denying liability.

Jury Selection and Management

The trial began on Tuesday, May 17, 2016. During jury selection, the trial court informed the jury venire that the trial was expected to last seven days and would "finish on no later than Wednesday, May 25th" – shortly before the Memorial Day weekend. As is sometimes the case during trials of moderate length, the court was called upon to address the concerns of several jurors about its duration.

462 Md. 514

The first day of trial was consumed by jury selection and opening statements. The trial court seated a jury of six jurors and two alternates. At the outset of the second day of trial, one of those jurors asked to be excused on the ground that he was the caregiver for his elderly grandfather, who had a medical appointment later that week – a concern that he had not raised during voir dire. The trial court was reluctant to lose a juror so early in the trial and initially denied the request. The juror repeated the request the next day and the court eventually acceded to it, excusing that juror at the end of the third day of the trial.

On the third day of the trial, the trial court noted that other jurors were "concerned about the length of the trial" and that three had asked for letters, presumably for their employers. The trial court provided letters reiterating that the trial was scheduled to "go until Wednesday, May 25," advised the jury that counsel were conducting the trial very efficiently, and stated that the case would likely be submitted to the jury by Tuesday, May 24, although the court said it could not predict how long their deliberations might take.² (In fact, the case was ultimately submitted to the jury on Monday, May 23, a day earlier than the court's prediction).

Trial Testimony

During the plaintiff's case, Mr. Armacost, his parents, and his son testified as to Mr. Armacost's background, physical condition, and treatment. An expert neurosurgeon testified that the procedure performed by Dr. Davis, while done proficiently, was neither medically necessary nor even appropriate for a patient with Mr. Armacost's medical history and that Mr. Armacost's symptoms would...