Davis v. Armacost , 234 Md. App. 71 ( 2017 )

Circuit Court for Baltimore County
Case No. 03-C-14-011973 MM
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 822
September Term, 2016
____________________________________
REGINALD J. DAVIS
v.
MARK ARMACOST
____________________________________
Eyler, Deborah, S.,
Kehoe,
Rodowsky, Lawrence F.,
(Senior Judge, Specially Assigned),
JJ.
____________________________________
Opinion by Kehoe, J.
____________________________________
Filed: September 1, 2017
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.
1
On appeal, Dr. Davis raises two questions, which we have rephrased:
1. Did the trial court commit reversible error by giving the foreseeable
circumstances instruction (Maryland Civil Pattern Jury Instruction 19:3),
prejudicially altering or heightening the duty owed by Dr. Davis to patient
Mr. Armacost?
2. Were the court’s supplemental instructions unduly coercive?
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.
Background
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
1
The procedure is explained in Shan-Jin Wang et al., Four-level anterior cervical
discectomy and fusion for cervical spondylotic myelopathy, 24 J. of Orthopaedic Surgery
338, 339 (2016).
2
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.
2
A CT myelogram is a radiographic contrast study of the spinal subarachnoid space and
its contents, made using a contrast dye and computed tomography. CT and Myelogram,
Stedman’s Medical Dictionary (2016).
3
Staphylococcus aureus is a common type of bacteria that can cause skin and
bloodstream infections, as well as pneumonia. Unlike methicillin-resistant
Staphylococcus aureus (MRSA), methicillin-sensitive Staphylococcus aureus (MSSA)
can be treated with antibiotics. Staphylococcus aureus in Healthcare Settings, Centers for
Disease Control and Prevention, https://www.cdc.gov/hai/organisms/staph.html.
3
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
4
The plaintiff’s expert witness, Gary Lustgarten, M.D., said Dr. Davis “did a great job.
Technically he did everything right.”
5
The expert testified that staphylococcus aureus infections are aggressive; the bacteria
double in number every two to four hours. The witness opined that, if such an infection
had been present since April, when Mr. Armacost began to complain of post-surgery
pain, it would have killed Mr. Armacost by the time it was diagnosed in August.
4
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.
ANALYSIS
I. The standard-of-care instructions
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 (explaining the general-
negligence concept of foreseeable circumstances) (emphasis added):
Negligence is doing something that a person using reasonable care would not
do, or not doing something that a person using reasonable care would do.
Reasonable care means that caution, attention or skill a reasonable person would
use under similar circumstances.
A reasonable person changes conduct according to the circumstances and the
danger that is known or would be appreciated by a reasonable person. Therefore,
if the foreseeable danger increases, a reasonable person acts more carefully.[6]
The trial court also instructed the jury on the requisite standard of care for physicians
in the context of medical malpractice specifically:
6
This language tracks, verbatim, that of Maryland Civil Pattern Jury Instructions 19:1
(“Definition”) and 19:3 (“Foreseeable Circumstances”).
5
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:
[Defendant’s Counsel8]: I respectfully except to your decision to give the model
pattern jury instruction 19:3, foreseeable
circumstances. . . .
I believe giving the foreseeable circumstances
instruction confuses the notion of whether or not Doctor
Davis had to see into the future as to what may or may
not happen with Mr. Armacost and therefore had a
heightened duty to act in a different way. . . .
The question for Doctor Davis in this case is . . . was he
negligent, did he do a surgery that wasn’t indicated, did
he fail to advise the Plaintiff about the surgery, and did
he fail to properly appreciate the signs and symptoms of
infection postoperatively.
There are no facts in this case which would suggest that
Doctor Davis had any duty beyond the normal standard
that would apply to a health care professional. . . .
The Court: Why don’t we do this, it’s 10:05 and the jury—
[Defendant’s Counsel]: I’m done.
The Court: Good. Okay.
***
[Plaintiff’s Counsel]: In responding to that, Your Honor, I think that the—
The Court: I don’t need you to respond to that.
7
This language tracks, verbatim, that of Maryland Civil Pattern Jury Instruction 27:1
(“Health Care Providers—Standard of Care”).
8
GBMC, a co-defendant at the trial level, was found liable only as Dr. Davis’s employer
and did not join in this appeal. Any mention of “Defendant” or “Defendant’s Counsel” in
excerpts from the trial transcript refers to Dr. Davis or his counsel.
6
[Plaintiff’s Counsel]: Very well. We have no exceptions for the Plaintiff.
The Court: Okay. All right. One divisive issue.
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:
1. Do you find that [Dr. Davis], and [GMBC] as his employer, were negligent in
their treatment of [Mr. Armacost]?
2. Do you find the negligence of [Dr. Davis], and [GBMC] as his employer,
caused injury to [Mr. Armacost]?
The jury answered both questions affirmatively.
Dr. Davis argues that the trial court committed reversible error by giving the
foreseeable circumstances instruction, prejudicially heightening the duty owed to the
plaintiff patient, Mr. Armacost. According to Dr. Davis, the contested instructions,
sounding in general negligence, modified the standard of care to which Dr. Davis was
expected to adhere, inviting the jury to compare his conduct to that of a reasonable person
without his specialized knowledge or skill. Dr. Davis contends that instructing the jury
about foreseeable circumstances permitted the jury to speculate about inapplicable legal
7
principles and implied there was some type of foreseeable danger that required Dr. Davis
to change his conduct accordingly.
Mr. Armacost’s response is straightforward: The instructions given were correct
because the general rules of negligence apply to malpractice claims, which sound in
negligence. Because the instructions were not erroneous, Mr. Armacost argues, they
could not be prejudicial.9
We hold that giving the challenged instruction constitutes reversible error because (1)
pattern jury instructions framed in terms of the conduct of a reasonable person are
inapplicable in a medical malpractice case and (2) the context surrounding the given
instruction did not dispel a probability of prejudice to Dr. Davis.
A. The standard of review
“We review a trial judge’s decision whether to give a jury instruction under the abuse
of discretion standard.” CSX Transp., Inc. v. Pitts, 430 Md. 431, 458 (2013) (citing
Conyers v. State, 354 Md. 132, 177 (1999)). Error will be found if the given instruction is
not supported by evidence in the case. Rustin v. Smith, 104 Md. App. 676, 680 (1995).
However, the court will only overturn a jury verdict and grant a new trial based on an
9
At oral argument, Mr. Armacost suggested that Dr. Davis’s challenge to the instruction
on reasonable care (MPJI-Cv 19:1) is not preserved for appellate review. This is a
debatable point––although trial counsel’s objection was directed at MPJI-Cv 19:3,
counsel did make it clear that any general negligence instruction was inappropriate.
In any event, we will address both MPJI-Cv 19:1 and MPJI-Cv 19:3 because neither
instruction should have been given for the same reasons and the issue is likely to recur on
remand.
8
erroneous instruction if the appealing party can show that it rises to the level of
prejudicial error. Fry v. Carter, 375 Md. 341, 355 (2003).
B. The general negligence instructions were erroneous.
It is true, as Mr. Armacost notes in his brief, that “the general principles which
ordinarily govern in negligence cases also apply in medical malpractice claims.” Shilkret
v. Annapolis Emergency Hosp. Ass’n, 276 Md. 187, 190 (1975) (citing Benson v. Mays,
245 Md. 632, 636 (1967)). As in other negligence cases, a plaintiff alleging medical
malpractice must prove the standard elements of a negligence case—among other things,
a breach of duty or a lack of the requisite skill or care on the part of the defendant
physician or other health care provider. Univ. of Md. Med. Sys. Corp. v. Gholston, 203
Md. App. 321, 330 (2012).
However, “whereas the conduct of the average layman charged with negligence is
evaluated in terms of the hypothetical conduct of a reasonably prudent person acting
under the same or similar circumstances, the standard applied in medical malpractice
cases must also take into account the specialized knowledge or skill of the defendant.”
Shilkret, 276 Md. at 190–91 (1975) (citing W. Prosser, Torts 32 (4th ed. 1971)). That is
why Maryland law has maintained, since the 1889 decision of State v. Housekeeper, a
separate standard of care in medical negligence cases, expecting of doctors “[t]hat
reasonable degree of care and skill which physicians and surgeons ordinarily exercise in
the treatment of their patients.” 70 Md. 162, 172 (emphasis added). Modern formulations
require that physicians “exercise the degree of care or skill expected of a reasonably
9
competent health care provider in the same or similar circumstances.” Crise v. Maryland
General Hosp., Inc., 212 Md. App. 492, 521 (2013) (emphasis added).10
The reason for the distinction between the standards was made clear in Marcus Z.
Shar & David E. Manoogian, The Medical Malpractice Law of Maryland 3 (2d ed. 1992):
As members of a “learned profession” doctors are expected to possess
knowledge and skill in the context of their vocation surpassing that of other
“reasonable men,” and are therefore expected to conduct themselves in
conformity with that heightened experience and training. [T]he law prohibits
courts or juries from dictating how medicine is to be practiced on the basis of
what might “seem right.” Proof of medical negligence must therefore differ
somewhat from the traditional “reasonable man” standard applicable to tort
actions generally.
Because of this special standard of care, expert testimony is essential in almost all
medical malpractice claims to determine whether a doctor has been negligent. DeMuth v.
Strong, 205 Md. App. 521, 539 (2012) (citing Brown v. Meda, 74 Md. App. 331, 342
(1988)). Expert testimony is not required in only the rarest of cases in which the average
juror can determine independently that the physician was negligent—by amputating the
wrong leg, for example. DeMuth, 205 Md. App. at 539. This is because medical
malpractice cases are usually more complex than general negligence claims. Puppolo v.
Adventist Healthcare, Inc., 215 Md. App. 517, 534 (2013) (citing Barnes v. Greater
Baltimore Medical Center, Inc., 210 Md. App. 457, 481 (2013)). “[T]o ask the jury to go
beyond professional standards to determine whether it was reasonable for the defendant
10
See also § 3-2A-02 of the Courts and Judicial Proceedings Article (A plaintiff in
medical malpractice claim must prove that the care given by the “health care provider
[was] not in accordance with the standards of practice among members of the same health
care profession with similar training and experience”).
10
to follow a particular medical course of treatment would in effect ask for the jury’s
medical judgment—something that no member of the jury is likely to be capable of
giving” without the aid of expert medical testimony. Kenneth S. Abraham, The Forms
and Functions of Tort Law 82 (4th ed. 2012).
No reported Maryland appellate opinion has explicitly addressed the suitability of
general negligence or foreseeable circumstances instructions in medical negligence cases.
But courts in other states presented with the issue have decided that instructions on
ordinary care, foreseeability of risk and other general negligence principles muddle or
misstate the applicable standard of care in malpractice cases. For example, in Hales v.
Pittman, 576 P.2d 493, 498 (Ariz. 1978), the Supreme Court of Arizona affirmed the trial
court’s refusal to give jury instructions framed in terms of ordinary care, “as required of
laymen,” in a medical malpractice case. “[T]he physician incurs liability because of his
breach of the standard of care applicable to physicians on account of their special
knowledge.” Id. What constitutes “reasonable care” is already covered by instructions
“framed in terms of the skill and learning of a neurosurgeon.” Id.Similarly, in Cromer v. Children’s Hosp. Med. Ctr. of Akron, 29 N.E.3d 921, 931
(Ohio 2015), the Supreme Court of Ohio found that a trial court erred when it gave jury
instructions on foreseeability of harm in a medical malpractice case. “[I]n most medical
negligence cases, [the] foreseeability of a risk of harm related to the medical treatment is
conceded, leaving no need for a jury instruction on foreseeability.” Id. at 934. Even if
foreseeability of harm were at issue in the case, the court maintained, it would still be
“inappropriate to view foreseeability in terms of a layperson’s ‘ordinary’ standard of
11
care.” Id. at 933. The jury should not have been given an instruction comparing the
doctors’ conduct to that of “a reasonably careful person.” Id.
For these reasons, it is wrong to instruct juries “that a greater risk to the patient
creates a higher duty in the physician.” 1 David W. Louisell and Harold Williams,
Medical Malpractice § 8.04(1)(a) (Gordon L. Ohlsson ed., 2017). Those authors point to
two representative decisions. The Ohio Court of Appeals held in Hinkle v. Cleveland
Clinic Found., 823 N.E.2d 945, 960 (Ohio Ct. App. 2004), that no case law would justify
giving an instruction on “greater danger” in a medical malpractice case. The Supreme
Court of South Carolina agreed in Pittman v. Stevens, 613 S.E.2d 378 (S.C. 2005),
holding such an instruction “inappropriate” in medical malpractice cases because
“[e]very medical decision encompasses varying degrees of danger. Id. at 381.
By including Maryland Civil Pattern Jury Instruction 19:3 in the jury’s charge, the
trial court three times invited the jury to determine whether Dr. Davis was negligent by
invoking the conduct and perception of a “reasonable person” instead of the accepted
practice among Dr. Davis’s similarly skilled peers. This error was reinforced by including
Maryland Civil Pattern Jury Instruction 19:1, which focuses on “reasonable care” and the
“caution, attention or skill [of] a reasonable person.” While the instructions on general
negligence and foreseeable circumstances may have been correct statements of
negligence law in Maryland, they failed to account for a medical doctor’s specialized
knowledge and skill. The appropriate standard of care for Dr. Davis (Maryland Civil
Pattern Jury Instruction 27:1)—also given by the court—already takes account of the
risks involved in the decision to operate and in any post-operative treatment. The
12
standard also rightly asks jurors to consider how a physician—not the average reasonable
person—responds to those risks.
Medical malpractice claims are not general negligence claims, and so jury
instructions on general negligence, although correct statements of Maryland law, are not
supported by the facts of a case centered on the allegedly negligent conduct of a
physician. Accordingly, we hold that the trial court erred in giving general negligence
instructions in a medical malpractice case.
C. The general negligence instructions were also prejudicial.
As noted above, even if an instruction given to the jury is deemed erroneous, this
court will overturn a jury verdict and grant a new trial based on an erroneous jury
instruction “only if it rises to the level of prejudicial error.” CSX Transp., Inc. v. Pitts,
430 Md. 431, 458 (2013). To be prejudicial, an erroneous instruction must be
“misleading or distracting for the jury” or permit the jury to “speculate about inapplicable
legal principles.” Barksdale v. Wilkowsky, 419 Md. 649, 669–70 (2011) (citing Fry v.
Carter, 375 Md. 341, 335 (2003)). There are no “[p]recise standards for the degree of
prejudice required for reversal,” Beahm v. Shortall, 279 Md. 321, 331 (1977).
Nevertheless, to evaluate how prejudicial an erroneous instruction might have been, a
reviewing court may consider, among other things, (1) how the appellee’s argument to
the jury “may have contributed to the instruction’s misleading effect,” (2) whether the
jury asked for a rereading of the erroneous instruction and (3) the effect of other
instructions in remedying the error. Barksdale, 419 Md. at 669 (quoting Nat’l Med.
13
Transp. Network v. Deloitte & Touche, 72 Cal. Rptr. 2d 720, 731 (1998)) (internal
quotation marks removed).
The reviewing court focuses its inquiry “on the probability, not the possibility of
prejudice.” Flores v. Bell, 398 Md. 27, 33 (2007). But definitive proof of prejudice is not
required. “The mere uncertainty as to prejudice may be grounds for holding an error is
reversible.” Barksdale, 419 Md. at 667 (citing Flores, 398 Md. at 35, and Roger J.
Traynor, The Riddle of Harmless Error 64 (1970) (observing that an error “can be
declared prejudicial for the simple reason that the court is unable to declare a belief one
way or the other as to the probable effect of the error on a particular judgment.”)). This
approach is especially apt in cases in which the form of the jury’s verdict makes it
difficult—if not impossible—for a reviewing court to decide whether the erroneous
instruction was relied upon in reaching that verdict. See Fry, 375 Md. at 356. This is
because “a court cannot ‘unbake’ the jury verdict and examine the impact of any one
ingredient.” Barksdale, 419 Md. at 665.
The Court’s analysis in Barksdale is instructive as we assess the prejudicial effect of
the instructions in the present case. In Barksdale, the plaintiff sued the owners of her
childhood home, claiming she had been injured by lead paint on the premises. The Court
of Appeals held an instruction given at trial, on a tenant’s duty to keep a dwelling “clean
and sanitary,” was erroneous because it “was not relevant to the issues before the jury,
i.e., whether the landlord was negligent or engaged in deceptive trade practices in renting
the Property.” Id. at 655–56. The instruction was prejudicial because it suggested that the
plaintiff’s grandmother, who rented the home from the defendant, may have been
14
contributorily negligent for failing to report flaking paint to her landlord. Whether the
grandmother had been negligent was not an issue before the jury, however, because the
grandmother’s failure to report the flaking paint could not be attributed to the child, who
was also too young to have had any duty to report at that time. The error “touched on the
heart of the case,” by inappropriately apportioning blame for Barksdale’s injury, and thus
warranted a reversal of the judgment for the defendants. Id. at 672.
Among the authorities relied upon by the Barksdale Court was a Minnesota case that,
like this appeal, dealt with conflicting standards of care given in jury instructions. In
Lindstrom v. Yellow Taxi Co. of Minneapolis, 214 N.W.2d 672 (1974), a suit for damages
brought by injured passengers in a taxi cab, the trial court gave jury instructions that
combined an inapplicable general negligence “reasonable care” standard with the correct
“highest degree of care” standard applied to Minnesota common carriers, like the
defendant taxi company. Id. at 674. Even though the trial court later withdrew its
instructions on the “reasonably-prudent-person standard of care,” it ended up granting the
plaintiffs’ motion for a new trial. Id. The Minnesota Supreme Court affirmed that grant
because “repeated references” to the ordinary-care standard, in the court’s words,
“permeated” the jury’s charge and “failed to convey clearly to the jury the single standard
of care applicable to a common carrier.” Id. at 677.
Application of this case law leads us to conclude that the erroneous instructions in the
present case were prejudicial. The general negligence instructions struck at the heart of
the case, viz., Dr. Davis’s liability, and permitted speculation about inapplicable legal
principles (the hypothetical conduct of a reasonable person in the face of foreseeable
15
harm). The concept of reasonable care as decided by ordinary people, “permeated” the
charge given to the jury and left the jurors with two distinct standards against which Dr.
Davis’s conduct was to be measured: that of a “reasonable person” and that of a
“reasonably competent health care provider engaged in a similar practice and acting in
similar circumstances.” Jurors were also asked to consider whether Dr. Davis had failed
to consider some set of risks or to adapt his behavior to them—an issue, like contributory
negligence in Barksdale, that was not raised by the evidence at trial. The misleading
effect of the instruction was compounded by comments in Mr. Armacost’s closing
arguments inviting the jurors to disregard the expert testimony needed to establish the
appropriate standard of care.11
Our concerns about juror speculation beyond the bounds permitted by the proper
standard of care for health care professionals were not allayed by the following exchange
between this Court and appellee’s counsel at oral argument (emphasis added):
The Court: If the medical health care provider instruction encompasses a
duty to consider the patient’s preexisting health condition as part
of the standard of care and skill, then how [is] the 19:3
instruction . . . pertinent to what the jury is supposed to do?
What legal principle does it add to the . . . standard instruction
for a medical malpractice case?
Appellee: [I]t helps the jury to understand this idea of what is reasonable
care. It is an additional piece of information for jurors who don’t
11
To be sure, jurors in a medical malpractice case are free to weigh the credibility of
expert testimony. But a plaintiff cannot recover if the experts’ testimony is ignored
entirely. It is from this testimony that the applicable standard of care is to be gleaned. See
Puppolo v. Adventist Healthcare, Inc., 215 Md. App. 517, 534 (2013) (trial court properly
granted summary judgment in medical malpractice case because plaintiff failed to
identify an expert to establish the standard of care).
16
in their everyday lives think about what is reasonable care and
what is reasonable care under the circumstances.
The Court: [A]re you saying that it allows them to make an assessment
about reasonableness outside of what the experts have testified
to?
Appellee: It allows them to make an assessment of reasonableness based
on the evidence, which is what we asked them to do.
The Court: [A]nswer my question.
Appellee: The answer to your question is yes because that’s what we ask
them to do.
Additionally, while the erroneous instruction was not reread for the jury, a printed
version of the erroneous instruction accompanied the jury during its deliberations. And
the other instructions given, orally and in print, did not remedy the error. The trial judge
gave the proper standard of care only once. In total, the “reasonably competent health
care provider” was mentioned one time in the instructions, while the “reasonable person”
was named four times.
We are further inclined to find the error prejudicial because, although the jury
completed a verdict sheet, the questions therein do not permit us to rule out the probable
prejudice of the error. The questions on the verdict sheet and the jury’s yes-or-no answers
to them tell us that Dr. Davis was found negligent but do not evince the standard of care
upon which that verdict was based. As it was for the Court in Barksdale, it is impossible
for us to divine the extent to which the erroneous instruction affected the jury’s
deliberations.
The law is clear that the jury was supposed to evaluate Dr. Davis against his peers.
But the erroneous instructions from the trial judge and the invitation from plaintiff’s
17
counsel to disregard the opinions of the experts permitted a jury not made up of
neurosurgeons to impermissibly speculate about how they would have approached the
risks attendant in a four-level anterior cervical discectomy and fusion surgery. The
instructions also implied that Dr. Davis’s failure to adapt his course of treatment to an
increasing danger was at issue when no such evidence was put before the trier of fact. For
those reasons, we conclude that the challenged instructions were both erroneous and
prejudicial.
II. The supplemental jury instruction
The second part of Dr. Davis’s appeal focuses on the timing and the wording of the
modified Allen charge given by the trial judge, as well as the court’s preface to the
instruction. As noted above, the jury began to deliberate during the afternoon of May 23.
Deliberation continued for all of May 24, until the jury sent a note to the court:
“Undecided. Please recess until tomorrow.” The jury resumed deliberations on the next
morning, and, at around 2:15 p.m., the jury sent the court another note that read, “Please
advise as to what happens if we are unable to reach a unanimous decision.”
At this point, the trial court conferred with counsel about how to respond to the jury’s
question (emphasis added):
The Court: I propose to have them come out and read the Allen
charge. I’m going to let them know—I mean, today, if
they can reach a decision today I think that’s it, but we
will give them another hour and see if anybody wants to
re-examine his or her evidence.
[Defendant’s Counsel]: May I be heard briefly?
18
The Court: Yes.
[Defendant’s Counsel]: I know that the Allen charge is relatively widely
recognized but I would object to it being given.
I think it unfairly indicates to people that they should
sway their views and perhaps give up a position that
they hold very firmly.
***
I would ask that the jury be given to the end of the day
without it. And if they can’t, at that point in time I
would move for a mistrial.
The Court: Not responding to this note for two hours? Just let them
sit in there, and stew, that’s your proposal?
[Defendant’s Counsel]: Oh, no, Your Honor. I would bring them out and say we
would ask that you continue your . . . deliberations and
attempt to reach a unanimous conclusion.
The Court: All right. I feel as though they have already done that.
They told us yesterday undecided, and so they said that
yesterday and we just let them go home. So we already
gave them that chance.
The court recalled the jury to the courtroom and told the jurors that a mistrial would
be declared if they were unable to reach a unanimous decision; it would then be up to the
parties to decide whether or not to retry the case. The judge then gave the following
instruction (emphasis added):
[Y]our verdict must represent the considered judgment of each juror. To return a
verdict it is necessary that each juror agree. Your verdict must be unanimous. Do
not surrender your honest conviction as to the weight or effect of evidence solely
because of the opinion of your fellow jurors or for the mere purpose of returning
a verdict.
It is your duty as jurors to consult with one another, and we know that you have
been doing that since you began your deliberations. It is your duty to deliberate
with a view to reaching an agreement if you can do so without violence to
individual judgment.
19
Each of you must decide the case for yourself, but do so only after an impartial
consideration of the evidence with your fellow jurors.
In the course of your deliberations, do not hesitate to re-examine your own views
and change your opinion if you are convinced it is erroneous.
So I’m going to ask you to deliberate another hour. I know that you have been at
it pretty hard. We have been in the courtroom and have heard you from time to
time. We can’t hear what you say. We just hear words being said. . . . And we
will see if you can reach a verdict today. . . .
I’m not going to ask you to return tomorrow, but I do want you to try again.
The jury was sent back to deliberate and, at the end of the hour, returned a verdict for
for Mr. Armacost on the malpractice issue only.
Dr. Davis raises three arguments with respect to the court’s supplemental jury
instructions. He first argues that the court abused its discretion in telling the jurors a
mistrial would result from a failure to reach a unanimous decision. He also claims it was
an abuse of discretion to give the modified Allen charge at all because it was not
established that the jury was deadlocked. Finally, he challenges the court’s addition to the
approved language of the modified Allen charge, providing an apparent one-hour
deadline to reach a verdict, which, he claims, unduly coerced the jury.
Mr. Armacost responds that the trial court acted within its broad discretion in
answering the jury’s question about a failure to reach a unanimous decision and in
deciding to issue the modified Allen charge on the third day of deliberations, after the
jury had sent two notes indicating its inability to reach a unanimous decision. He also
contends that the judge’s asking jurors to deliberate for one more hour and telling them
they would not be brought back the following day did not actually impose a deadline for
a verdict.
20
We agree with Mr. Armacost on the first two points. But the third issue—the court’s
apparent one-hour deadline to reach a verdict—is more problematic.
A. The standard of review
A trial court’s decision to give supplemental jury instructions—including, among
other things, a modified Allen charge—is within the sound discretion of the trial judge
and is subject to review by the Court for an abuse of discretion. See State v. Bircher, 446
Md. 458, 462 (2016) (providing the standard of review for jury instructions generally);
Nash v. State, 439 Md. 53, 90 (2014) (citing Kelly v. State, 270 Md. 139, 144 (1973))
(providing the standard of review for modified Allen charges specifically). Supplemental
instructions may include “an instruction given in response to a jury question.” Appraicio
v. State, 431 Md. 42, 51 (2013).
B. To inform the jury of the possibility of a mistrial was not an abuse of discretion.
Dr. Davis argues that the court erred by disclosing, in response to a question from the
jury, that the inability to reach a unanimous decision would lead to a mistrial. We are not
convinced by this argument. Trial courts, in fact, “have a duty to answer, as directly as
possible, the questions posed by jurors.” Appraicio, 431 Md. at 53. The trial court’s
clarifying instruction should not be “ambiguous, misleading, or confusing.” Id. at 51
(quoting Battle v. State, 287 Md. 675, 685 (1980) (internal quotation marks removed).
And the judge’s response should be more circumscribed when the jury “seeks guidance
on how to find the facts.” The trial court in this case was not addressing a question about
21
facts or the inferences to be drawn from them, nor was the answer given “ambiguous,
misleading, or confusing.”
Dr. Davis suggests that the trial court nonetheless erred because this answer was
given in conjunction with a modified Allen charge. We need not look further than the
facts of Plumley v. State, 4 Md. App. 671, 680–81 (1968), in which we held that the court
did not abuse its discretion by prefacing a modified Allen charge by saying the following:
Well, I have no desire to rush you into anything, but as you know, this case has
been going on for four days now and ultimately is going to have to be decided. If
it can’t be decided by you then another jury is going to have to decide it.
That remark was given by the court sua sponte, after seven hours of deliberation and after
the jury foreman had reported progress in its decision-making.
In the case before us, the trial court provided the jury with a similar disclosure during
the third day of deliberation and in response to a question about this very issue from the
jury. The disclosure—that a failure to reach a unanimous decision results in a mistrial—
was an accurate statement of Maryland law. As in Plumley, we do conclude that the trial
court’s response was not an abuse of discretion simply because it was followed by a
modified Allen charge.
C. The decision to issue a modified Allen charge was not itself an abuse of discretion.
A modified Allen charge is an instruction given to juries when the trial judge believes
they are deadlocked or, even before deliberations begin, as a general instruction about
juror unanimity and a duty to deliberate. Hall v. State, 214 Md. App. 208, 218–19 (2013).
The charge’s name comes from the U.S. Supreme Court decision Allen v. United States,
22
164 U.S. 492, 501 (1896), in which a trial judge, when recalling the jury for further
instructions, told the jurors:
that in a large proportion of cases absolute certainty could not be expected; that,
although the verdict must be the verdict of each individual juror, . . . they should
examine the question submitted with candor, and with a proper regard and
deference to the opinions of each other; that it was their duty to decide the case if
they could conscientiously do so; that they should listen, with a disposition to be
convinced, to each other’s arguments; that, if much the larger number were for
conviction, a dissenting juror should consider whether his doubt was a reasonable
one which made no impression upon the minds of so many men, equally honest,
equally intelligent with himself.
In Maryland, the traditional Allen charge has been supplemented by a modified
version recommended by the American Bar Association. Burnette v. State, 280 Md. 88,
96 (1977) (holding the ABA-approved instruction “superior” to the traditional Allen
charge because “[i]t does not charge the minority to doubt the reasonableness of its
convictions when they are not concurred in by the majority,” avoiding the “coercive
tendency” of the instruction). This preference is also reflected in Maryland’s pattern jury
instructions.12
12
See MPJI-Cv 1:21 “Deadlocked Jury Charge (Allen Charge)” (2017):
The verdict must represent the considered judgment of each juror. In order to
return a verdict, it is necessary that each juror agree thereto. Your verdict must be
unanimous.
Do not surrender your honest conviction as to the weight or effect of evidence
solely because of the opinion of your fellow jurors, or for the mere purpose of
returning a verdict.
It is your duty, as jurors, to consult with one another and to deliberate with a
view to reaching an agreement, if you can do so without violence to individual
judgment.
Each of you must decide the case for yourself, but do so only after an impartial
consideration of the evidence with your fellow jurors. In the course of your
23
“[T]he decisions as to whether to utilize an Allen-type13 charge, when to employ it,
and what words should be selected are best left to the sound discretion of the trial judge.”
Kelly, 270 Md. at 143 (1973). The charge is normally given, however, “only when the
jury appears to have encountered difficulties in reaching unanimity,” and especially when
the jury has announced those difficulties in some way. Orthopedic Equip. Co. v. Eutsler,
276 F.2d 455, 463 (4th Cir. 1960). When jurors “‘announce their failure to agree, the
court may impress upon them the importance of agreeing, urge them to listen to argument
and sacrifice the pride of personal opinion, and he may send them back for further
deliberation until such time as it becomes apparent that hope of an agreement is futile.’”
Leupen v. Lackey, 248 Md. 19, 26 (1967) (quoting 1 Branson’s Instructions to Juries
149–50 (3rd ed. A. Reid 1960 Replacement)). A jury must be given “ample time for
discussion and consideration of the issues,” Kelly, 270 Md. at 144, but no fixed minimum
deliberation is required before a modified Allen charge may be given.
In Plumley v. State, we approved the use of an Allen instruction after a jury had been
deliberating for seven hours. 4 Md. App. 671, 683 (1968). There, the trial court recalled
the jury to the courtroom to give the charge on its own motion—without any other sign of
juror inability to reach an agreement. In fact, the jury, when asked, reported progress, not
impasse, to the judge. Id. at 680. In Lang v. State, the jury deliberated less than five hours
deliberations, do not hesitate to reexamine your own views and change your
opinion if convinced it is erroneous.
13
The term “Allen-type charge” means the same thing as “modified Allen charge.”
24
before the charge was given. 6 Md. App. 128, 133 (1969). In neither case was it
determined that the judge abused his discretion in issuing a modified Allen charge.
Here, the jury was more than halfway through its third day of deliberation, and the
jurors had reached out to the judge to ask what would happen if they could not reach a
decision, before the charge was given. At that point, the judge’s determination that the
jury was struggling to reach a unanimous decision was a reasonable one. The trial court
did not abuse its discretion in deciding that delivering a modified Allen charge might
assist the jury.
This conclusion, however, is not the end of our analysis. Notwithstanding the
deference that appellate courts give to a trial court’s decision as to whether and when to
issue a modified Allen charge, if the charge itself was unduly coercive, the instruction
ultimately given may warrant reversal of the judgment below.
D. The judge’s time-conscious modifications to the charge were unduly coercive.
In deciding whether a modified Allen charge warrants reversal, “[t]he question to be
determined is whether resort to the instruction forced or helped to force an agreement
which would not otherwise have been reached except for the intimidating or coercive
effect of the charge upon some jurors or whether it merely initiated a new train of real
deliberation which ended the disagreement and enabled each juror conscientiously and
freely to subscribe to the unanimous verdict.” Fletcher v. State, 8 Md. App. 153, 155–56
(1969). A deadlocked jury should not be coerced into reaching a verdict when a modified
Allen charge is given. Hall v. State, 214 Md. App. 208, 218 (2013) (citing Kelly, 270 Md.
25at 144). Juries must instead reach their conclusions “freely and voluntarily, without being
swayed or tainted by outside influences.” Caldwell v. State, 164 Md. App. 612, 635
(2005) (citing Bishop v. State, 341 Md. 288, 294 (1996)).
A trial court, in issuing a modified Allen charge, “should closely adhere to the
wording of the ABA recommended instruction.” Kelly, 270 Md. at 143. Any deviation
from the approved language merits careful review by the appellate court. Hall, 214 Md.
App. at 220. The judge gets more latitude when modifying a modified Allen charge
before the jury retires to consider the case. But if the instruction is given later on because
of apparent juror deadlock, any judicial modification will be subject to “careful scrutiny”
to determine “whether the province of the jury has been invaded and the verdict unduly
coerced.” Kelly, 270 Md. at 144.
In the present case, the judge modified the ABA charge approved in Burnette v.
State, 280 Md. 88, 96 (1977), by asking the jurors to deliberate for one more hour and
telling them they would not be brought back the following day to deliberate if no decision
was reached. Dr. Davis argues that these additions unduly coerced the jury. As evidence
of the coercion, he points to the fact that the jury, unable to reach a verdict for two and a
half days, came to a unanimous decision within an hour after the judge issued the charge.
That a seemingly deadlocked jury reaches a decision quickly after a modified Allen
charge is given may suggest coercion. See Lowenfield v. Phelps, 484 U.S. 231, 232, 108
S. Ct. 546, 548, 98 L. Ed. 2d 568 (1988). But a quick turnaround does not itself prove the
charge given to the jury was unduly coercive. See, generally, United States v. Arney, 248
F.3d 984, 990 (10th Cir. 2001) (verdict one hour after charge upheld), United States v.
26
Hernandez-Albino, 177 F.3d 33, 39 (1st Cir. 1999) (same), Munroe v. United States, 424
F.2d 243, 245–46 (10th Cir. 1970) (verdict announced forty minutes after charge upheld)
and Lang v. State, 6 Md. App. 128, 133 (1969) (verdict after only seven minutes of
additional deliberation upheld). The point of the charge is to foster the jury’s ability to
reach a decision. Depending on the circumstances, that a decision is reached soon after
the charge is given may be no more than a sign of the efficacy of the instruction.
But the modified Allen charge was not given in isolation in this case. The trial court
also told the jury it would have one more hour to deliberate and that it would not be
brought back the following day (a Thursday) to continue its deliberations. In doing so, the
trial judge may have, albeit not intentionally, sent the signal to the jury that it was “more
important to be quick than to be thoughtful.” United States v. Flannery, 451 F.2d 880,
883 (1st Cir. 1971). The clock, and not the reasoned judgment of each individual juror,
was made to control the deliberation.
No Maryland case has confronted a time limit attached to a modified Allen charge,14
but courts in other jurisdictions have roundly rejected the imposition of such limits,
finding them unduly coercive. See, e.g., United States v. Amaya, 509 F.2d 8, 9 (5th Cir.
1975), cert. denied, 429 U.S. 1101 (1977) (holding judicially imposed time constraints
coerce verdicts and necessitate reversal; in this case, judge asked the jury, after receiving
14
In Oliver v. State, 25 Md. App. 647 (1975), the case did involve a modified Allen
charge that urged the jury to go back to deliberate for another half-hour to avoid trying
the case again. The judgment in that case was reversed on other grounds (the bailiff gave
legal advice to the foreman of a deadlocked jury), so whether the charge given would
itself be an abuse of the trial judge’s discretion was not decided. Id. at 655.
27
a note about juror deadlock, “Please continue to review the evidence again, try to reach a
verdict and report back to me in one hour.”); Lucas v. American Mfg. Co., 630 F.2d 291,
293 (5th Cir. 1980) (advising jury that due to impending hurricane it must reach verdict
within fifteen minutes was coercive). See also U.S. v. Lansdown, 460 F.2d 164, 169 n.3
(1972) (holding judge’s decision to order a mistrial after 11 hours of deliberations, in a
case with close questions of credibility and without consulting jury or counsel, erroneous.
“A jury cannot operate under a rigid time deadline.”).
Other courts have held that a supplemental instruction that addresses how long the
jury will deliberate may not be inappropriate if no deadline to reach a verdict is imposed.
For example, United States v. Coast of Maine Lobster Co., Inc., the Court decided it was
not coercive for a judge to ask a jury to deliberate one more hour at 11:30 p.m. and then
come back the next morning if it had not reached a consensus on all issues. 557 F.2d 905,
911 (1st Cir. 1977) (“The trial judge gave no indication that a verdict must be reached,
much less that a verdict be reached within a specified time.”). Similarly, the Court of
Appeals for the Tenth Circuit held in Glazerman v. United States that a trial court may
also ask the jury to advise the court if its deliberations would continue for more than an
hour so that the judge can send the jury home for the night. 421 F.2d 457, 554 (10th Cir.
1970).
Unlike Glazerman and Coast of Maine Lobster Co., the trial court in the present case
told the jury it would not be brought back the next day to deliberate if it could not reach a
28
verdict within an hour.15 Knowing that failing to reach a decision within an hour could
result in a mistrial surely could have pressured the jury to reach some kind of accord
under the judge’s imposed time limit. The court was not simply asking the jury to reason
together; instead, the jurors were entreated “to strive toward a verdict by a certain time.”
Burroughs v. United States, 365 F.2d 431, 434 (10th Cir. 1966) (A modified Allen charge
was unduly coercive when judge twice asked jury to try to reach a decision within an
hour.).
We believe that, like the instructions in Burroughs, the trial court’s modified Allen
charge, coupled with an apparent one-hour deadline, had the effect––whether or not
intended––of suggesting to the jury that the court was “anxious to conclude the lawsuit,
and we think it entirely reasonable to infer that the jury was aware of [this] anxiety.” Id.The Burroughs Court observed that “verdict-urging on the part of the court tends to
undermine the proper function of the common law jury system as contemplated by the
Seventh Amendment. We must guard against any such subtle inroads.” Id.The right to a jury trial in a civil action in a Maryland court is not guaranteed by the
Seventh Amendment, but rather by Articles 5 and 23 of the Maryland Declaration of
15
Mr. Armacost asserts that the judge may have intended to bring the jury back at
another point to resume deliberations. But no such indication was given to the jury.
Moreover, the instruction was given on a Wednesday and the court was open on the
following day. It was reasonable for jurors to infer that the additional hour for
deliberation granted by the judge would be the last opportunity to reach a verdict before
the trial had to be repeated with another jury.
29
Rights. Even though the source of constitutional protection is different, the dangers posed
by the “verdict urging” at issue in Burroughs loom equally large for us.
Conclusion
We hold that the trial court erred in giving general negligence instructions, framed in
terms of the conduct of a reasonable person, in a medical malpractice case. Those
concepts invite jurors to substitute their judgment for that of a neurosurgeon.
Additionally, we conclude that the court did not err in informing the jury that a
mistrial would result from a failure to reach a unanimous decision and that, under the
circumstances of this case, the court also did not abuse its discretion by giving a modified
Allen charge. However, the court did err by giving that instruction while at the same time
imposing a time limit of one hour for further deliberation. The time limit rendered the
supplemental instruction unduly coercive.
Each error is prejudicial and each requires reversal.
THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE
COUNTY IS REVERSED AND THIS CASE IS REMANDED FOR
PROCEEDINGS CONSISTENT WITH THIS OPINION. APPELLEE TO
PAY COSTS.
30