Tuer v. McDonald

Court of Appeals of Maryland · Evidence

Evidenceevidencesubsequent remedial measuresRule 5-407medical malpracticefeasibilityimpeachmentstandard of care

Facts

Eugene Tuer was awaiting coronary artery bypass surgery and had been stabilized with intravenous Heparin for unstable angina. In accordance with the then-existing hospital and surgeon protocol, Heparin was stopped at 5:30 a.m. before the scheduled morning surgery, but when the surgery was postponed for several hours because Dr. McDonald had to treat another patient, Dr. McDonald decided not to restart the Heparin. Tuer later deteriorated, went into cardiac arrest, underwent extensive surgery, and died the next day. After his death, the defendants and the hospital changed the protocol for unstable-angina patients so that Heparin would be continued until the patient was taken into the operating room.

Issue

Did the trial court err under Maryland Rule 5-407 by excluding evidence that, after Tuer's death, the defendants changed their Heparin protocol? More specifically, was that evidence admissible under Rule 5-407(b) to show feasibility or to impeach Dr. McDonald's testimony that restarting Heparin would have been unsafe?

Rule

Under Maryland Rule 5-407, evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct, including to prove the applicable standard of care or a deviation from it. Such evidence may be admitted for another purpose, such as feasibility or impeachment, only if genuinely controverted and not merely as a pretext for showing fault. In the medical context, a statement that a course would be unsafe may amount to a claim of infeasibility only when asserted in an absolute sense; a contextual professional judgment that a measure was not advisable because its risks outweighed its benefits does not controvert feasibility.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a surgical center in Cleveland, Dr. Nina Patel treated Omar Reed for a post-operative airway complication. After the incident, the center adopted a new policy requiring a respiratory specialist to remain in the recovery unit during the first hour after extubation. In Reed's malpractice suit, his estate offers the new policy solely to show that the prior staffing arrangement fell below the applicable standard of care.

Should the court admit the new policy?

Explanation. Maryland Rule 5-407, as construed by the majority, bars evidence of subsequent remedial measures when used to prove negligence or culpable conduct, including to show the applicable standard of care or a deviation from it. The later staffing policy would do exactly that, so it is inadmissible. (Derived from Tuer v. McDonald (n.d.).)