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Intervening and Superseding Cause: Handy v. Box Hill
The Baltimore Medical Malpractice Lawyer Blog features newly released Maryland appellate opinions on medical malpractice and older reported opinions that continue to govern medical malpractice cases in Maryland. In this blog post, I delve into a complex case on the issue of intervening and superseding causes. The case is Handy v. Box Hill Surgery Center LLC, 255 Md. App. 183 (2022), a case that presents important legal and medical issues.
Factual Background
The patient’s family brought a wrongful death claim in the Circuit Court for Harford County. (Op. at 1). The patient went to the defendant doctor for chronic neck and arm pain. The doctor gave her an epidural steroid shot, which had fungi in it. Afterward, the patient became sick. Her illness got worse rapidly, and then she died from fungal meningitis. (Id. at 2-3).
The plaintiffs argued that the doctor did not meet the standard of care by using drugs from a compounding pharmacy because they are riskier. The doctor’s defense was that the pharmacy’s conduct was an intervening and superseding cause of the death. In legal terms, an intervening cause is an event that occurs after the defendant’s actions and contributes to the harm, while a superseding cause is an unforeseeable event that breaks the chain of causation. (Id. at 3).
The jury asked in a note if the superseding cause had to occur after the defendant’s act. The court then referred the jury to the instruction for the answer. Subsequently, the jury found that the doctor did not meet the standard of care and caused the patient’s death. However, the jury also found that the pharmacy’s error was an intervening and superseding cause of the death. As a result, the doctor was not liable. The plaintiffs then filed an appeal, challenging the jury’s decision and its implications for the doctor’s liability. (Id. at 6).
Appellate Court Analysis of Intervening and Superseding Cause
The standard of review was an abuse of discretion. (Id.). The issue was whether the intervening and superseding instruction was applicable in light of the evidence presented. (Id. at 9).
The appellate court’s analysis focused on the timing of the failures to meet the standard of care. An intervening cause must occur after the defendant’s actions. (Id. at 10). The appellate court emphasized that the plaintiffs’ expert identified multiple violations, some of which occurred before the pharmacy’s action. The breaches included the doctor’s ordering of the steroid before a specific patient’s need. (Id. at 11). The court concluded that the operative breach was the doctor’s decision to purchase from the pharmacy, not to inject the steroids. (Id. at 14). The court found that the plaintiffs’ allegation of purchasing the steroid as a breach easily met the evidentiary threshold for the instruction. This conduct occurred before the pharmacy’s conduct. (Id. at 14).
A superseding cause instruction is only appropriate if the intervening conduct was unforeseeable. (Id. at 16). The Appellate Court noted that the pharmacy’s actions involved criminal conduct, including knowingly distributing impure drugs. (Id. at 18-19). The Appellate Court held that there was sufficient evidence to raise the question of intervening and superseding cause, and therefore, the instruction was appropriate. (Id. at 19-20).
Commentary by the Baltimore Medical Malpractice Lawyer on Intervening and Superseding Cause
The implications of the Appellate Court’s decision in the Handy case are significant. This ruling could potentially influence future applications of the intervening and superseding cause instruction in medical malpractice cases.
The Other Cause Was Foreseeable
I believe the Appellate Court got this one wrong. First, the plaintiff’s theory of the case was that the doctor should not have used the pharmacy for the steroid at issue because of the risk of contamination. Contamination is what happened. The plaintiffs based their theory on foreseeability. As a result, a jury instruction on un-foreseeability had no application.
The Other Cause Came Before the Defendant’s Act
Moreover, the instruction does not fit given the timing of the events. An intervening and superseding cause must come after the defendant’s conduct. Here, the pharmacy made and shipped the impure steroid to the defendant doctor before the doctor gave it to the patient. The Appellate Court, however, changed the order by noting that the plaintiffs’ expert identified the doctor’s history of getting drugs from the pharmacy as a breach.
Firstly, that does not work because that breach did not cause harm. It wasn’t until the doctor gave it to the patient that there was harm. Secondly, that analysis lets a party manipulate the application of the instruction based on how they present the allegations. Under the Appellate Court’s analysis, the instruction would not have applied if the plaintiffs had identified only giving the drug as the breach. The courts should not inject that uncertainty into application of the instruction.
Hopefully, the Handy case will not be influential in future applications of intervening and superseding cause instruction.
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.