Subsequent Physician Malpractice

Copsey v. Park, — A.3d — 2016 WL 3067358 (Md.Ct.Spec.App. 2016)

Can a physician fend off malpractice accusations by adducing evidence of the patient’s subsequent mistreatment by another doctor?

Maryland’s Court of Special Appeals has recently decided that s/he can. Copsey v. Park, — A.3d —- 2016 WL 3067358 (Md.Ct.Spec.App. 2016). This decision was about a patient who came to a hospital’s emergency room to complain about numbness in the right side of his face, right arm and right leg, headaches, shortness of breath, double vision, and trouble walking. The patient underwent an MRI scan, which his first physician (Doctor #1) read as normal. Six days later, the patient suffered a massive stroke and died.

The patient’s wife, children, and mother filed a malpractice suit against Doctor #1. The suit alleged that Doctor #1 negligently misread the patient’s MRI.

At a subsequent trial, Doctor #1 offered evidence that revealed the following facts:

Five days after the first MRI scan, the patient saw another physician, Doctor #2, to whom he complained about double vision, headaches, hiccups and trouble swallowing. Doctor #2 ordered another brain MRI and requested an urgent interpretation. This scan was performed by Doctor #3, who found indications of acute infarction. Instead of promptly notifying Doctor #2 about this finding, Doctor #3 forwarded it to an on-call neurologist, Doctor #4, six hours later. Doctor #4, for his part, did nothing. Doctor #2 could access this information by logging into the hospital’s computer database or following up with the radiology department. Instead, he opted to review the MRI films himself and found no abnormalities. Based on that finding, he sent the patient home for the night. During that night, the patient suffered a massive stroke from which he did not recover.

The trial judge admitted this evidence over the plaintiffs’ objection. This ruling was followed by a trial, after which the jury returned a verdict in favor of Doctor #1.

The Court of Special Appeals upheld this verdict. According to the court, Doctor #1 was entitled to prove that the negligent acts of Doctors #2, #3 and #4 were solely responsible for the patient’s death. More importantly, the court also reasoned that Doctor #1 was entitled to establish that those acts amounted to a superseding cause. The court pointed out that a paradigmatic example of foreseeable, and hence not superseding, negligence by treating physicians “arose in automobile cases where doctors aggravated, or failed to cure, injuries caused by the negligent driver” and that this principle has been extended to cases featuring a physician’s failure to properly diagnose a patient and a failure of subsequent healthcare providers “to avoid the harm set in motion by the initial misdiagnosis.”

The court held, however, that a proposition that any negligence in the first doctor’s diagnosis makes him “per se liable for the subsequent negligence” of other treating physicians “is a mischaracterization of the law regarding consecutive tort liability.” The court explained that “in cases involving acts of negligence by subsequent treating physicians, the liability of the initial treating physician can be cut off if subsequent negligence by another physician constitutes a superseding cause.” To constitute a superseding cause, the subsequent physician’s negligence must be independent of the first physician’s mistake. Evidence adduced by Doctor #1 made a prima facie showing to this effect. The jury therefore was properly asked to consider it in deciding the case.

Hat tip to Attorney Patrick Malone for drawing my attention to this decision.