Tuer v. McDonald, 9

• Decision Date: 01 September 1997
• Docket Number: No. 9,9
• Parties: Mary C. TUER, Individually et al. v. Garth R. McDONALD et al. ,
• Court: Maryland Court of Appeals

Page 507

347 Md. 507

701 A.2d 1101

Mary C. TUER, Individually et al. v. Garth R. McDONALD et al.

No. 9, Sept. Term, 1997.

Court of Appeals of Maryland.

Nov. 7, 1997.

Robert L. Hanley, Jr. (Stephen J. Nolan, Nolan, Plumhoff & Williams, Chtd., on brief), Towson, for petitioner.

David A. Levin (Michael T. Wharton, Wharton Levin Ehrmantraut Klein & Nash, P.A., on brief), Annapolis, for respondent.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and ROBERT L. KARWACKI, Judge (Retired), Specially Assigned.

WILNER, Judge.

This is a medical malpractice action filed by Mary Tuer, the surviving spouse and personal representative of her late husband, Eugene, arising from Eugene's death at St. Joseph's Hospital on November 3, 1992. Although the hospital and several doctors were initially joined as defendants, we are concerned here only with the action against Mr. Tuer's two

                cardiac surgeons, Drs. McDonald and Brawley, and their professional association.  A jury in the Circuit Court for Baltimore County returned a verdict for those defendants, the judgment on which was affirmed by the Court of Special Appeals.   [701 A.2d 1102] Tuer v. McDonald, 112 Md.App. 121, 684 A.2d 478 (1996).  We granted certiorari to consider whether the trial court erred in excluding evidence that, after Mr. Tuer's death, the defendants changed the protocol regarding the administration of the drug Heparin to patients awaiting coronary artery bypass surgery.  The court's ruling was based on Maryland Rule 5-407, which renders evidence of subsequent remedial measures inadmissible to prove negligence or culpable conduct.  We shall hold that the court did not err and therefore shall affirm the judgment of the Court of Special Appeals
                

FACTUAL BACKGROUND

The relevant underlying facts are not in substantial dispute. Mr. Tuer, 63, had suffered from angina pectoris for about 16 years. In September, 1992, his cardiologist, Dr. Louis Grenzer, recommended that he undergo coronary artery bypass graft (CABG) surgery and referred him to the defendants for that purpose. The surgery was initially scheduled for November 9, 1992. On October 30, however, Mr. Tuer was admitted to St. Joseph's Hospital after suffering chest pains the night before, and the operation was rescheduled for the morning of November 2.

After a second episode of chest pain following Mr. Tuer's admission, Dr. Grenzer prescribed Atenolol, a beta blocker that reduces pressure on the heart, and Heparin, an anti-coagulant, to help stabilize the angina. The Heparin was administered intravenously throughout the weekend, and, with the other medication Mr. Tuer was receiving, it achieved its purpose; there were no further incidents of chest pains or shortness of breath. The defendants assumed responsibility for Mr. Tuer on November 1. Dr. McDonald was to perform the operation, with Dr. Brawley assisting.

The operation was scheduled to begin between 8:00 and 9:00 a.m. on November 2. ¹ In accordance with the protocol then followed by the defendants and by St. Joseph's Hospital, an anesthesiologist caused the administration of Heparin to be discontinued at 5:30 that morning. That was done to allow the drug to metabolize so that Mr. Tuer would not have an anticoagulant in his blood when the surgery commenced.

Both Mr. Tuer and Dr. McDonald prepared for the 9:00 a.m. surgery. Shortly before the surgery was due to begin, however, Dr. McDonald was called to deal with an emergency involving another patient, whose condition was more critical than that of Mr. Tuer, and that required a three- to four-hour postponement of Mr. Tuer's operation. Mr. Tuer was taken to the coronary surgery unit (CSU) in the meanwhile, where he could be closely monitored. Dr. McDonald considered restarting the Heparin but decided not to do so.

Dr. McDonald next saw Mr. Tuer just after 1:00 p.m., when he was summoned to the CSU and found his patient short of breath and with arrhythmia and low blood pressure. Quickly thereafter, Mr. Tuer went into cardiac arrest. Appropriate resuscitation efforts, including some seven hours of surgery, were undertaken, and, although Mr. Tuer survived the operation, he died the next day. Following Mr. Tuer's death--apparently because of it--the defendants and St. Joseph's Hospital changed the protocol with respect to discontinuing Heparin for patients with unstable angina. ² Under the new protocol, Heparin is continued until the patient is taken into The dispute over whether evidence of the new protocol was admissible arose several times during the trial, in different, though related, contexts. As a preliminary matter, it is important to note that, at no time during the trial did the plaintiff complain about the initial decision to discontinue the Heparin at 5:30 in anticipation of the operation commencing at 8:00 or 9:00 that morning; nor did she complain about Dr. McDonald's postponing the surgery in order to deal with the other, more critically ill patient. Her expert witnesses confirmed that neither of those decisions constituted a departure from the applicable standard of care. With respect to the subsequent remedial measure issue, her sole complaint concerned Dr. McDonald's (or Dr. Brawley's) decision not to restart the Heparin once the decision was made to postpone the surgery, and the evidence produced by her focused on that decision. The experts' point was that, while Mr. Tuer would still have some benefit from the Heparin as it metabolized from 5:30 to 8:00 or 9:00, he would have no benefit from it thereafter, and that left him vulnerable. It was their position that Mr. Tuer's unstable angina returned that morning and ultimately led to his cardiac arrest and death.

the operating room; had that protocol been in effect on November 2, 1992, the Heparin would not have been discontinued at 5:30 a.m., and no issue would have arisen as to restarting it.

The admissibility of the change in protocol first came before the court through the defendants' motion in limine to exclude any reference to the change in practice. At a hearing on that motion, the plaintiff took alternative positions with respect to the admissibility of the evidence. First, she contended that, because the defendants were claiming that the protocol in place on November 2 was a correct one, consistent with the applicable standard of care, the new protocol was not really a remedial measure and, for that reason, did not fall under the Rule. The court rejected that approach, concluding that a defendant did not have to admit wrongdoing in order for a subsequent change to be regarded as remedial. The plaintiff has not pressed that argument in this appeal. She also The Heparin issue first arose at trial when the plaintiff called Dr. McDonald as an adverse witness. In direct examination, Dr. McDonald stated that he approved discontinuation of the Heparin at 5:30 so that it would metabolize before the scheduled surgery. That decision, he said, was taken to minimize the risk attendant to an inadvertent puncture of the carotid artery by the anesthesiologist.

                asserted that the evidence would be admissible to show that restarting the Heparin was "feasible," to which the court responded that it would allow the evidence for that purpose if the feasibility of restarting the Heparin was denied by the defendants. 3  The defendants made clear that they did not intend to assert that the new protocol was not feasible and that they had no problem with the plaintiff asking Dr. McDonald whether Heparin could have been restarted.  The court granted the motion subject to revisiting it "because of the way the trial goes."
                

Dr. McDonald explained that, in the initial stage of CABG surgery, the anesthesiologist inserts a catheter into the internal jugular vein in the neck and that the procedure for doing so involves, first, puncturing the vein with a needle and then, after inserting a guide wire, making an incision and inserting the catheter. He pointed out that the jugular vein lies in close proximity to the carotid artery, which is a high pressure vessel that brings blood from the heart to the brain, and that, in his experience, there was a 5% to 10% incidence of the anesthesiologist inadvertently puncturing the carotid artery when attempting to insert the needle into the jugular vein. A puncture of the carotid artery, he said, could produce a serious bleeding problem, and it was for that reason that the protocol Following that answer, the plaintiff attempted to set up a basis for inquiring as to the subsequent change. He elicited from Dr. McDonald that there were no circumstances prior to November 2, 1992 in Dr. McDonald's practice at St. Joseph's Hospital in which a patient with Mr. Tuer's clinical profile--unstable angina stabilized in the hospital with Heparin therapy pending coronary bypass surgery--would not have had their Heparin discontinued three to four hours prior to their surgery. Dr. McDonald confirmed that "that was our policy at the time. It would have been a departure, and sitting here this morning I just can't think of a reason off hand why that could be." He added that he had considered restarting the Heparin once the surgery was postponed and elected not to do so because he did not want the drug in Mr. Tuer's blood when the surgery commenced. Counsel asked whether it was "feasible to restart Heparin for Mr. Tuer after your decision to postpone the surgery," but the court sustained an objection to that question. Counsel then inquired whether it was Dr. McDonald's contention "that it would have been unsafe to restart Mr. Tuer's Heparin after your decision to postpone his With that answer, plaintiff urged that she was entitled to ask about the change in protocol for impeachment purposes--presumably to show that it is not unsafe to bring a patient into surgery with Heparin in his or her system. The court again rejected that argument, distinguishing between the situation presented, of the...