Davis v. Armacost
| Decision Date | 01 September 2017 |
| Docket Number | No. 822, Sept. Term, 2016.,822, Sept. Term, 2016. |
| Citation | 168 A.3d 1112,234 Md.App. 71 |
| Parties | Reginald J. DAVIS v. Mark ARMACOST |
| Court | Court of Special Appeals of Maryland |
Argued by: J. Jonathan Schraub (Paige L. Smith, adopted the brief/on the brief), McLean, VA, for Appellant.
Argued by: George S. Tolley III (Alison D. Kohler, Dugan, Babij, Tolley & Kohler, on the brief), Timonium, MD, for Appellee.
Panel: Deborah S. Eyler, Kehoe, Lawrence F. Rodowsky (Senior Judge, Specially Assigned), JJ.
This appeal raises two questions, both fairly well settled in other jurisdictions but apparently matters of first impression in Maryland. The first is whether the trial court in a medical malpractice action was wrong to give jury instructions on negligence framed in terms of the conduct of a reasonable person. The second is whether the court abused its discretion when, in response to a question from the jury during its third day of deliberations, it imposed a one-hour deadline to conclude deliberations.
Mark Armacost sued his neurosurgeon, Reginald J. Davis, M.D., for malpractice and failure to obtain informed consent. At the end of a five-day trial, the court gave its instructions to the jury. Over Dr. Davis's objection, the jury's charge included an instruction on the general negligence concept of foreseeable circumstances—describing how "a reasonable person changes conduct according to the circumstances and the danger that is known or would be appreciated by a reasonable person" in addition to an instruction couched in terms of the standard of care that should be employed by a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances.
During its third day of deliberations, the jury sent a note to the court asking what would happen if it could not reach a unanimous verdict. The court told the jurors that a mistrial would result from continued deadlock and also issued a modified Allen charge. In addition, the court requested the jurors to deliberate for another hour but also told them that they would not be asked to return the following day. About an hour later, the jury returned a verdict in favor of Mr. Armacost on the malpractice issue and in favor of Dr. Davis on the informed consent claim.
On appeal, Dr. Davis raises two questions, which we have rephrased:
As we will explain, we conclude that the trial court should not have given the foreseeable circumstances instruction nor, for that matter, another instruction defining negligence framed in terms of the conduct of a reasonable person. The court also erred in attaching a seeming one-hour deadline for the jury to reach a verdict after disclosing that a mistrial would result from a failure to reach a unanimous decision and issuing a modified Allen charge. Each error warrants reversal.
On January 17, 2012, after years of neck and shoulder pain and a recent onset of numbness in his right hand, Mr. Armacost consulted with Dr. Davis, the chief neurosurgeon at the Greater Baltimore Medical Center (GMBC). They discussed both surgical and nonsurgical treatments, and Mr. Armacost ultimately agreed to Dr. Davis's recommendation of a four-level anterior cervical discectomy
and fusion surgery. Dr. Davis performed the procedure on March 1, 2012, and removed the damaged discs from Mr. Armacost's cervical spine.1
Mr. Armacost's recovery was not a smooth one. Although he expressed no concerns in the first few weeks following the surgery, Mr. Armacost contacted Dr. Davis and GBMC several times between March and August, by telephone and by visiting the emergency room. He complained of a "pin-point opening" at the end of his incision and, later, of chest pain and episodic and progressive numbness in his left arm. A nurse found no active drainage from the opening, and X-rays showed that the hardware from his fusion procedure was well placed. Mr. Armacost had no fever. Nonetheless, at one appointment he was given oral antibiotics, and Dr. Davis eventually ordered a CT myelogram2
to attempt to figure out the cause of Mr. Armacost's symptoms. Mr. Armacost took more than a month to schedule that procedure, but it was eventually performed on July 20. Dr. Davis interpreted the CT myelogram
as normal.
On August 17, 2012, Mr. Armacost came to the GBMC emergency room reporting swelling and tenderness in his neck, redness near the incision, fever and chills. The "pin-point opening" had developed into an abscess
. A doctor drained the abscess, and the fluid tested positive for a methicillin-sensitive Staphylococcus aureus bacterial infection3 —some five months post operation.
On September 3, 2014, Mr. Armacost filed a statement of claim with the Health Care Alternative Dispute Resolution Office. Mr. Armacost waived arbitration, and on November 3, 2014, he sued Dr. Davis and GBMC for malpractice and a failure to obtain informed consent.
At trial, Mr. Armacost's expert witness testified that the fusion procedure performed on Mr. Armacost, although performed well,4 was not medically necessary and was not appropriate for someone of Mr. Armacost's age and overall health condition. The same expert also told the jury that Dr. Davis and other members of GBMC's staff were too slow in diagnosing and treating Mr. Armacost's post-operative infection. Dr. Davis's experts, on the other hand, testified that Dr. Davis had complied with the standard of care in determining that Mr. Armacost was a candidate for the fusion surgery and that Dr. Davis had obtained Mr. Armacost's informed consent to the operation after appropriate disclosures. An infectious diseases expert testified that Mr. Armacost's infection, diagnosed in mid-August, had been present for only a couple of weeks before it was caught; in other words, it hadn't been lingering for months, undetected by Dr. Davis's staff.5
The jury was excused for deliberation in the afternoon of May 23, 2016. On May 25, the jury returned a verdict for Dr. Davis on the informed consent issue but for Mr. Armacost on the malpractice issue, awarding him $329,000 in damages. Dr. Davis appeals from that judgment, challenging parts of the initial instructions and the court's supplemental instruction given in response to a note from the jury. The content and context of those instructions are discussed in detail below.
The first part of Dr. Davis's appeal focuses on the court's instructions to the jury at the close of the five-day trial. One instruction combined the substance of Maryland Civil Pattern Jury Instructions 19:1 (defining negligence) and 19:3 ( the general-negligence concept of foreseeable circumstances) (emphasis added):
The trial court also instructed the jury on the requisite standard of care for physicians in the context of medical malpractice specifically:
A health care provider is negligent if the health care provider does not use that degree of care and skill which a reasonably competent health care provider engaged in a similar practice and acting in similar circumstances would use.[7 ]
After all the instructions were given, Dr. Davis objected:
The court did not otherwise respond to Dr. Davis's objection or modify the instructions.
After the instructions were given to the jury, trial counsel gave their closing arguments. During the plaintiff's closing argument, counsel made the following comment to the jury (emphasis added):
What do you look to if you want to ignore all of the expert testimony ? You could do that in this case. It is your right [to] credit what you want to credit and ignore what you want to ignore.
The jury was sent to deliberate with a printed copy of the court's instructions and a verdict sheet to guide deliberation. The questions on the verdict sheet relevant to this appeal read as follows:
The jury answered both...
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Armacost v. Davis
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Armacost v. Davis
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State v. Rolls
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