Hopkins v. Silber
785 A.2d 806, 141 Md. App. 319 (2001)
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Rule of Law:
In a medical malpractice action under Maryland's contributory negligence doctrine, a patient's post-negligence conduct that aggravates an injury, rather than concurrently causing it, does not act as a complete bar to recovery but may serve to mitigate the damages awarded.
Facts:
- After undergoing prostate cancer treatment that left him impotent, Howard Hopkins consulted with Dr. Stanley R. Silber.
- On January 2, 1996, Dr. Silber surgically implanted two penile prostheses in Hopkins.
- Dr. Silber instructed Hopkins to refrain from sexual activity for five to six weeks to allow the surgical site to heal.
- In disregard of Dr. Silber's instructions, Hopkins attempted to have sex six times before the recommended waiting period had expired.
- Four weeks post-surgery, Hopkins complained of pain and an inability to deflate the implants, which he believed were not functioning correctly.
- Dissatisfied, Hopkins sought treatment from a second physician, Dr. Horst Schirmer, who found the right prosthesis was too long and causing ischemia (lack of blood flow).
- Dr. Schirmer performed a second surgery to replace the implants, but this procedure also failed, with one replacement device later discovered to be a 'sizer' marked 'not for implant,' leading to further injury.
- Hopkins was later advised by a third doctor, Dr. Burnett, that another corrective surgery had a 'very good' chance of success, but Hopkins canceled the scheduled procedure.
Procedural Posture:
- Howard Hopkins sued Dr. Stanley R. Silber and Dr. Horst K. Schirmer for medical malpractice in the Circuit Court for Baltimore City, a state trial court.
- A jury found both doctors negligent and awarded Hopkins $15,000 for past medical expenses and $20,000 for non-economic damages.
- The jury also found that Hopkins had negligently contributed to his injuries through his post-surgery conduct.
- Following the trial, Hopkins settled his claim against Dr. Schirmer.
- Hopkins (appellant) appealed the judgment against Dr. Silber to the Court of Special Appeals of Maryland, an intermediate appellate court, seeking a new trial on the issue of non-economic damages.
- Dr. Silber (appellee) filed a cross-appeal, arguing that the jury's finding of contributory negligence should have barred any recovery for Hopkins.
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Issue:
Does a patient's negligent post-treatment conduct that aggravates an injury caused by a physician's negligence serve as a complete bar to recovery under the doctrine of contributory negligence?
Opinions:
Majority - Krauser, Judge.
No. A patient's negligent post-treatment conduct that merely aggravates or adds to the effects of an injury caused by a physician's prior negligence does not bar all recovery, but instead serves to mitigate the damages. The court distinguished between a plaintiff's negligence that is concurrent with the physician's negligence (which would be a complete bar) and subsequent negligence that merely enhances an already-established injury. The court reasoned that when the injury from the primary negligence is essentially complete before the plaintiff's negligent act, the plaintiff's conduct relates to the minimization of damages, also known as the doctrine of avoidable consequences. The jury instruction allowing for a reduction in damages, rather than a complete bar to recovery, was therefore a correct statement of the law, as the plaintiff's actions (premature sexual activity) occurred after the defendant's alleged negligence (improperly sized implant) and served to aggravate the resulting harm.
Analysis:
This decision carves out a significant exception to Maryland's strict, all-or-nothing contributory negligence rule. By differentiating between concurrent negligence and subsequent, aggravating negligence, the court effectively introduces a damage-apportionment concept without formally adopting comparative negligence. The ruling provides that a plaintiff's post-injury failure to act reasonably (e.g., ignoring doctor's orders) will reduce their damage award but won't prevent them from recovering altogether for the initial harm caused by the defendant. This precedent is crucial in personal injury and medical malpractice cases within contributory negligence jurisdictions, as it prevents defendants from using a plaintiff's subsequent poor judgment to escape all liability for their initial tortious act.
