Intervening & Superseding Negligence: Copsey v. Park
The Baltimore Medical Malpractice Lawyer Blog discusses Maryland medical malpractice cases. In this Post, I examine the issues that arise when plaintiffs settle with some but not all defendants in a medical malpractice case. Specifically, I discuss the introduction of evidence of non-party negligence and whether intervening and superseding negligence caused the harm. The case under scrutiny is the Court of Appeals of Maryland reported opinion in Copsey v. Park, 453 Md. 141 (2017). The case involves a man who died from a fatal stroke, and his family members then brought suit against a radiologist and subsequent treating doctors.
Factual Background
The plaintiffs were family members of a man who died from a fatal stroke. They brought suit in the Circuit Court for Anne Arundel County against a radiologist alleging misreading of radiological images that led to the stroke six days later. The plaintiffs also sued three subsequent treating doctors. The plaintiffs settled their claims with these three doctors and dismissed them. The circuit court denied the plaintiffs’ motions to exclude the former party status of the settling parties and also exclude evidence that their treatment was a superseding and intervening cause of the death. (Op. at 1). This ruling was the main issue on appeal.
The patient’s complaints included vertigo for a week, right-side numbness, shortness of breath, headaches, double vision, and trouble walking. On June 4, he had a CT Scan and MRI; the radiologist read them as normal. (Id. at 3). A neurologist also reviewed the films as normal the next day. The neurologist diagnosed him with migraines. (Id. at 3-4).
On June 7, the patient saw his primary care physician, who noted no neurological symptoms. His symptoms returned later that day, and on June 9, the patient went back to the neurologist. The symptoms now included hiccups and trouble swallowing. A stat MRI revealed abnormalities, including death of brain cells from an infarction. Still, radiologist 2 did not call the neurologist as requested. (Id. at 4-5).
On June 10, the patient had a fatal stroke. (Id. at 6).
Lawsuit
The plaintiffs brought suit against radiologists 1 and 2, the neurologist, and an on-call neurologist who got the abnormal results and didn’t do anything with them. (Id.). The plaintiffs reached pre-trial settlements with the neurologists. One day after the trial began, the plaintiffs dismissed radiologist 2. The case proceeded against the first radiologist, who was the initial defendant in the case. (Id. at 7).
Motions in limine
The plaintiffs moved in limine to exclude the neurologists’ prior status as defendants and the settlements. They also moved to preclude the defense from raising as a defense the negligence of subsequent treating physicians as an intervening and superseding cause of the stroke. The trial judge denied the motions.
At trial, the plaintiffs put on an expert witness who testified that the June 4 MRI showed abnormalities. (Id. at 8). Defense experts did anonymous reviews and found no abnormalities. Experts on both sides testified that subsequent treaters were negligent and that treatment on June 9 would have saved the patient. (Id. at 9). The jury found for the first radiologist, finding that he did not violate the standard of care. (Id. at 10).
The plaintiffs appealed, the Court of Special Appeals affirmed, and the Court of Appeals accepted the appeal. (Id. at 10-11).
Court of Appeals of Maryland
The Court of Appeals’ decision in this case was significant. It noted the precedent set by the case of Martinez v. Johns Hopkins Hosp., 212 Md. App. 634 (2013), a medical malpractice case that allowed a defendant who had denied liability to introduce evidence of negligence and causation of a non-party. The Court of Appeals held that the first radiologist in this case could do the same, setting a crucial legal precedent. The court also addressed the plaintiffs’ concerns about jury speculation, emphasizing the importance of cautionary instructions from the trial judge.
The Court of Appeals conducted a thorough analysis of the issue of intervening and superseding cause. It explained that a superseding cause arises primarily when unusual and extraordinary independent intervening negligent acts occur that the original tortfeasor could not have anticipated, providing a clear understanding of the legal concept.
Factors on Intervening and Superseding Negligence
The court also stated:
The following considerations are of importance in determining whether an intervening force is a superseding negligence that causes of harm to another:
(a) the fact that its intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence;
(b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than usual given the circumstances existing at the time of its operation;
(c) the fact that the intervening force is operating independently of any situation created by the actor’s negligence, or, on the other hand, is or is not a normal result of such a situation;
(d) the fact that the operation of the intervening force is due to a third person’s act or to his failure to act;
(e) the fact that the intervening force is due to an act of a third person which is wrongful toward the other and as such subjects the third person to liability to him;
(f) The degree of culpability of a wrongful act by a third person sets the intervening force in motion. (Id. at 22).
Analysis on Intervening and Superseding Negligence
The court concluded in this case that the evidence of non-party negligence and causation was relevant to the jury’s determination of the superseding cause. (Id.). The jury was entitled to determine whether it was extraordinary and unforeseeable that three other doctors with no reliance on the first radiologist would fail to meet the standard of care when met with grave conditions. (Id. at 23).
Negligence by a subsequent actor breaks the chain of causation when the action by the subsequent actor is extraordinary and not reasonably foreseeable. Liability continues if a defendant could have anticipated that the intervening act of negligence might follow the original act of negligence in a natural and ordinary sequence. (Id. at 24). Here, it was inferable that the treatment of the intervening doctors broke the chain of causation created by the first radiologist’s negligence so that the negligence of the intervenors was an independent and superseding cause of the patient’s death. (Id. at 25). The court affirmed the judgment below. (Id. at 31).
Commentary by Baltimore Medical Malpractice Lawyer Mark Kopec on Intervening & Superseding Negligence
Critical to the analysis in this case was that the subsequent doctors did not rely on the first radiologist’s actions. This break allowed a jury to determine whether the subsequent actions were independent and superseding.
When a medical malpractice plaintiff considers settling pre-trial with some, but not all, defendants, it presents a complex situation. Here, as in many cases, arguably the most culpable defendants were the ones who settled. That left the plaintiffs to put on a case against a lesser culpable defendant. That defendant was allowed to put on evidence of the settling defendants’ negligence.
The risk is a defense verdict for the unsettling defendant, which happened here.
This result does not mean the case was a bad outcome for the plaintiff. That depends on how much the plaintiffs received from the settling defendants and how much it cost to pursue the possibility of an additional recovery against the first radiologist.
Risk
In making these settlement decisions, medical malpractice plaintiffs can count on the courts to allow defendants to introduce evidence of non-party negligence. Suppose the defendant can show a break such that its negligence was not part of the subsequent medical providers’ negligence. In that case, plaintiffs should be careful about pursuing a case against the non-settling defendant. Juries might find persuasive that the non-parties negligence was closer in time to the harm incurred. Often, the prospects for a plaintiff’s verdict will not be good.
For other Blog posts discussing intervening and superseding negligence, see Handy v. Box Hill and also Browne v. State Farm. You can also read more generally about issues involving causation.
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.