Barbosa v. Osbourne

• Decision Date: 26 April 2018
• Docket Number: No. 1258,1258
• Parties: JOAO BARBOSA, et ux. v. TANISHA OSBOURNE
• Court: Court of Special Appeals of Maryland

JOAO BARBOSA, et ux. v. TANISHA OSBOURNE

No. 1258

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

April 26, 2018

MEDICAL MALPRACTICE — NATURE OF ACTION — NEGLIGENCE: To succeed on a claim of medical malpractice, the plaintiff must show that the physician's conduct—the care given or withheld by the doctor—was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the act (or omission) giving rise to the cause of action. Because a medical malpractice action is tortious in nature, general rules of negligence usually apply in determining liability.

MEDICAL MALPRACTICE — AVAILABILITY OF AFFIRMATIVE DEFENSES: A defendant health care provider may raise, in a medical malpractice case, any of the affirmative defenses generally available in any negligence action, including contributory negligence.

MEDICAL MALPRACTICE — CONTRIBUTORY NEGLIGENCE OF PATIENT: Generally, a plaintiff's purported contributory negligence may not be invoked as a defense in a negligence action unless there is some evidence that the injured party acted, or failed to act, with knowledge and appreciation, either actual or imputed, of the danger of injury which his conduct involves. As applied to a medical malpractice action, that rule permits a contributory negligence defense, where there was evidence adduced that the plaintiff had received treatment from a health care provider, that he had then been given instructions by that provider, and that he had not followed, or unreasonably delayed in following, those instructions.

MEDICAL MALPRACTICE — CONTRIBUTORY NEGLIGENCE OF PATIENT — PATIENT'S PRE-TREATMENT CONDUCT: The pre-treatment conduct of a patient is irrelevant in determining whether a physician is liable for violating the standard of care in rendering medical services to that patient.

MEDICAL MALPRACTICE — CONTRIBUTORY NEGLIGENCE OF PATIENT — PATIENT'S PRE-TREATMENT CONDUCT: In this case, the circuit court erred in permitting Dr. Osbourne to pursue a defense of contributory negligence based solely upon Mr. Barbosa's pre-treatment conduct, and it compounded that error in giving a contributory negligence instruction to the jury, as well as in providing the jury with a special verdict sheet, setting forth that defense.

CIVIL PROCEDURE — VERDICT SHEETS — HARMLESS ERROR: A circuit court may require a jury to return a verdict in the form of written findings upon specific issues and shall instruct the jury as may be necessary to enable it to make its findings. A verdict returned in that form may be sustained on appeal even though the trial court erroneously admitted or excluded evidence or argument, so long as the error was harmless; reversal is required only if it was more likely than not that the error influenced the verdict.

Circuit Court for Frederick County

Case No. 10-C-14-001287

REPORTED

Woodward, C.J., Friedman, ^*Krauser, JJ.

Opinion by Krauser, J.

^*Krauser, Peter B., J., now retired, participated in the hearing of this case while an active member of this Court, and as its Chief Judge; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the preparation of this opinion.

Appellants, Joao Barbosa and Angela Barbosa, brought a medical malpractice action, in the Circuit Court for Frederick County, against appellee, Tanisha M. Osbourne, M.D., alleging that she had, in the course of surgically removing Mr. Barbosa's inflamed gallbladder, negligently cut Mr. Barbosa's bile duct. In response, Dr. Osbourne denied any negligence in the performance of that procedure and further invoked, as a defense, Mr. Barbosa's purported contributory negligence in failing to timely seek treatment for his severe abdominal pains, which, she maintained, clearly signaled the medical problem for which he eventually sought treatment. The validity of the latter defense is the pivotal issue of this appeal.

At the conclusion of the trial below, the jury, after receiving an oral instruction and a special verdict sheet, indicating that contributory negligence was a defense to the Barbosas' claims, did not find that Dr. Osbourne had breached the standard of care, without reaching the question of whether Mr. Barbosa had been contributorily negligent. The Barbosas then noted this appeal, contending that, because Mr. Barbosa's alleged negligence preceded any medical treatment that Mr. Barbosa received from Dr. Osbourne or any other health care provider, Dr. Osbourne's contributory negligence defense had no basis in the law. And, furthermore, they claim that the court's error, in permitting that defense to be raised at every stage of the trial, from opening statement to closing argument, and then in providing the jury with a special verdict form setting forth contributory negligence as a potential defense, cannot be deemed harmless error, as Dr. Osbourne claims.

For the reasons that follow, we shall reverse the judgment below and remand for further proceedings.

I

On June 12, 2013, Mr. Barbosa, after experiencing "severe" and persistent abdominal pain throughout the day, went to the emergency room of the Frederick Memorial Hospital. There, Mr. Barbosa was seen by a nurse, who completed a "triage assessment" form, noting that he had arrived at the emergency room, complaining of "diffuse" abdominal pain. That assessment was reviewed by an emergency room physician, who then ordered several laboratory tests for Mr. Barbosa. While the performance of those tests was still pending, Mr. Barbosa left the hospital, as he had waited for over two hours to be seen by a doctor, without success, and his pain had diminished. The discharge assessment form that memorialized his emergency room visit stated that his "Departure Disposition" was "Elop[e]ment (Patient Not Seen)" and that the priority assigned to his case was "Non-Urgent."

After leaving the emergency room, Mr. Barbosa continued to experience abdominal pain, and, that evening, he had trouble eating and sleeping. The following day, a nurse at Frederick Memorial Hospital telephoned Mr. Barbosa and left a message on his voice mail, "requesting" that he "call back or return" to the hospital "for questions, concerns[,] or if [his] condition changes." Notably, there was no suggestion that he otherwise call back or return to the hospital.

In any event, Mr. Barbosa did not remember receiving such a call, but, nonetheless, returned to the emergency room eleven days after having left it, complaining that his abdominal pain had worsened and that he was having difficulties in sleeping, eating, and working. At that time, he was seen by an emergency room physician, who performed an ultrasound scan. The scan indicated that Mr. Barbosa was suffering from, among other things, an inflamed gallbladder and possibly gallstones. When Dr. Osbourne was notified by telephone of those findings, she advised the emergency room physician to admit Mr. Barbosa to the hospital overnight, as she planned "to see him in the morning."

The next day, Dr. Osbourne examined Mr. Barbosa and confirmed the preliminary results of the ultrasound scan, namely, that he was suffering from inflammation of the gallbladder and possibly from gallstones in both his bile and cystic ducts. Dr. Osbourne, then, met with Mr. Barbosa and his wife to discuss treatment options; at which time, the doctor recommended that Mr. Barbosa undergo a laparoscopic procedure¹ to remove his gallbladder and a cholangiography, to obtain a radiographic image of his bile duct. Mr. Barbosa consented to the proposed surgery and cholangiography.

As Dr. Osbourne began the surgery that day, she observed "adhesions," that is, "intense scarring," on the gallbladder and surrounding structures below the liver. Those adhesions had caused what were "normally separate anatomical structures," such as Mr. Barbosa's colon and gallbladder, to bind together. When Dr. Osbourne attempted to cutaway the adhesions, she encountered difficulty in doing so and, consequently, sought the assistance of a more senior surgeon, Jonathan E. Grife, M.D. After discussing the problem with Dr. Grife, Dr. Osbourne decided not to perform the cholangiography, as planned, because she believed that the adhesions had rendered that procedure unsafe and unnecessary. Then, assisted by Dr. Grife, Dr. Osbourne commenced the surgical removal of Mr. Barbosa's gallbladder.

Upon removing the gallbladder, Dr. Osbourne observed a small amount of bile, which, in her words, was "where it shouldn't be." Suspecting a possible bile duct injury, she requested that a gastroenterologist perform an endoscopic examination, known as an "ERCP,"² so that Mr. Barbosa's bile duct could be inspected and a determination made as to the extent of any such injury. When, after multiple attempts, the requested gastroenterologist was unable to perform that diagnostic procedure, Mr. Barbosa was transferred to the University of Maryland Medical Center, where an ERCP was successfully performed, confirming damage to the bile duct.

At the Medical Center, Mr. Barbosa then underwent a surgical procedure to repair his bile duct injury, during the course of which his right hepatic artery ruptured, whereupon a section of that artery was removed and replaced. A subsequent "Operative Report," from the University of Maryland Medical Center, stated that the repair of the artery "revealed an underlying thermal injury involving over 50% of the right hepatic artery diameter," which, the Barbosas later claimed, was caused by the instrument Dr. Osbourne used to remove hisgallbladder. On July 2, 2013, Mr. Barbosa was discharged from the University of Maryland Medical Center and returned home.

II

Mr. and Mrs. Barbosa thereafter filed a claim with the Health Care Alternative Dispute Resolution Office, alleging medical malpractice by Dr. Osbourne. Then, after arbitration was waived, the Barbosas filed suit against...