Contributory Negligence: Barbosa v. Osbourne

Kopec Law Firm

The Baltimore Medical Malpractice Lawyer Blog delves into crucial issues in Maryland medical malpractice cases. In this post, I dissect the defense of contributory negligence and when a doctor can assert it in medical malpractice cases. The case under scrutiny is the Court of Special Appeals reported opinion in Barbosa v. Osbourne, 237 Md. App. 1 (2018), a decision of significant importance in medical law.

Factual Background

The plaintiffs brought a medical malpractice claim in the Circuit Court for Frederick County, claiming that the surgeon, in removing the gallbladder, negligently cut the bile duct. The doctor contended that she was not negligent and that the plaintiff was contributorily negligent for failing to timely seek treatment after he had severe symptoms. (Op. at 1).

The plaintiff went to the emergency room for severe abdominal pain. Afterward, a doctor had not seen the plaintiff for two hours and his pain receded, he left the hospital. (Id. at 2).

The plaintiff’s pain worsened, and he returned to the emergency room 11 days later. An ultrasound revealed an inflamed gallbladder and possible gallstones in the bile and cystic ducts. (Id. at 3).

In the surgery, the doctor saw bile and suspected a bile duct injury. An ERCP to inspect the bile duct was unsuccessful. The hospital then transferred the plaintiff to UM, where an ERCP showed injury to the bile duct. The repair also encountered damage to the hepatic artery, which the plaintiffs alleged the defendant caused. (Id. at 4-5).

At trial, the defense asserted the contributory negligence defense, which stated that the plaintiff’s waiting for eleven days made the surgery more complicated. (Id. at 5).

Contributory Negligence in Medical Malpractice

The court gave the jury a special verdict sheet with contributory negligence. The jury found the doctor did not breach the standard of care and did not reach the contributory negligence question. The plaintiffs appealed, arguing that the court erred in allowing the contributory negligence defense and that it was not a harmless error. (Id. at 1).

Court of Special Appeals on Contributory Negligence in Medical Malpractice

The CSA observed that Maryland cases had allowed a contributory negligence defense in medical malpractice cases, but only when the plaintiff failed to follow the doctor’s instructions after the treatment at issue. (Id. at 9). However, this case presented whether a doctor can raise pretreatment conduct as contributory negligence. (Id. at 10-11).

The CSA noted that the Restatement of Torts recited that pretreatment conduct cannot be contributory negligence. (Id. at 12-13). Almost all decisions from other states agree. (Id. at 13-20). Consequently, the CSA held that the circuit court erred by allowing the defense, instructing the jury, and including the defense on the special verdict sheet. (Id. at 20).

The CSA also held that the error was not harmless. The defense specifically and repeatedly invoked the defense in every phase of the case. (Id. at 21-22). Moreover, the use was not separate from the discussion of breach of the standard of care. Instead, the defense repeatedly argued that the plaintiff’s conduct made it so that the doctor was not negligent. (Id. at 22-23). The CSA reversed the judgment. (Id. at 25).

Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Contributory Negligence

The Barbosa court reached the right decision. The treatise and every court that the CSA cited also compel this result.

It’s not surprising that the defense raised the issue. The defense will go after whatever it can get. It is astonishing, however, that the circuit court allowed it in light of the authority to the contrary.

It is a fundamental principle that tortfeasors take the plaintiff as they find them. Doctors treat patients as they present, and this principle ensures the fairness of the legal system. 

Doctors defend cases by focusing on their conduct without the need to go after their patients. If a patient’s delay in seeking treatment made them very sick, then a jury will evaluate the doctor based on the challenge of treating a very sick person. The jury will assess the reasonableness of the doctor’s conduct based on the setting in which it occurred.

Irrelevance

Consider the potential ‘irrelevancies’ that could be injected into medical malpractice cases if contributory negligence based on pretreatment conduct was allowed.  Doctors would constantly defend their cases by putting the patients on trial, scrutinizing whether they could use any patient’s failure to get immediate medical treatment against the patient. This diversion would not only distract from the central issue of the doctor’s conduct but also result in what happened in Barbosa  – the entire case was an attack upon the patient, leading to a shift in focus from the doctor’s actions to the patient’s decisions.

It is also unfair because patients do not have the same medical knowledge as doctors. For example, a patient may not appreciate the ramifications of specific symptoms and may be unaware of the optimal time to seek care. The doctor, however, would be using their knowledge to show that the plaintiff’s decision was not optimal. This attack would be unfair, as it places the burden of medical knowledge and decision-making on the patient, who may not be equipped to make the same decisions as a doctor.

The Barbosa decision ensures that the jury’s focus will remain where it belongs  – on the doctor’s conduct and whether it caused injury. This precedent will influence future medical malpractice cases, setting a standard for the inadmissibility of contributory negligence based on pretreatment conduct.

Mark Kopec is a top-rated Baltimore medical malpractice lawyer. Contact us at 800-604-0704 to speak directly with Attorney Kopec in a free consultation. The Kopec Law Firm is in Baltimore and helps clients throughout Maryland and Washington, D.C. Thank you for reading the Baltimore Medical Malpractice Lawyer Blog.

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