Rosebrock v. Eastern Shore Emergency Physicians, LLC
108 A.3d 423, 221 Md. App. 1, 2015 Md. App. LEXIS 2 (2015)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under Maryland Rule 5-406, evidence of a person's routine practice is admissible as habit evidence to prove their conduct on a specific occasion, provided it is a consistent, semi-automatic response to a repeated, specific situation. Corroboration of such testimony is not required for it to be admissible.
Facts:
- On November 21, 2003, Judith Phillips, a nurse's aide, slipped and fell at work, complaining of hip, knee, and lower back pain.
- Emergency Medical Technicians immobilized Phillips on a backboard and transported her to the Emergency Department of Shore Health System's Memorial Hospital.
- Dr. Deborah Davis, the attending physician, took a history and examined Phillips. Dr. Davis's written report noted knee and hip pain but left the section for a back examination blank.
- After reviewing X-rays that were negative for fractures, Dr. Davis diagnosed Phillips with knee and hip contusions and discharged her.
- On December 9, 2003, after her condition worsened, Phillips saw another physician, Dr. Glenn Hardy, who ordered X-rays of her back.
- The new X-rays revealed an acute compression fracture of the L3 vertebrae with possible nerve compression.
- Phillips underwent spinal fusion surgery but subsequently developed an infection.
- On January 4, 2004, while hospitalized for the infection, Phillips suffered a ventricular fibrillation arrest, resulting in an anoxic brain injury that left her in a persistent vegetative state.
Procedural Posture:
- Sean Rosebrock, as guardian for Judith Phillips, filed a medical malpractice complaint against Dr. Deborah Davis and others in the Circuit Court for Baltimore City.
- The case was transferred by agreement to the Circuit Court for Queen Anne’s County.
- A jury trial was held, and the jury returned a verdict in favor of the appellees (Dr. Davis et al.), finding Dr. Davis was not negligent.
- Rosebrock (appellant) filed a motion for judgment notwithstanding the verdict or for a new trial, arguing the court erred in admitting Dr. Davis's 'habit' testimony.
- The circuit court denied the appellant's motion.
- The appellant filed a timely notice of appeal to the Court of Special Appeals of Maryland.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Did the trial court err by admitting a physician's testimony about her invariable practice of examining the spine of every patient on a backboard as 'habit' evidence under Maryland Rule 5-406, where the physician had no specific memory of the patient's examination and the medical record was silent on the matter?
Opinions:
Majority - Woodward, J.
No, the trial court did not err. A physician's testimony about a specific, consistently repeated medical procedure can be admitted as habit evidence under Rule 5-406 to prove that the physician acted in conformity with that practice on a particular occasion. The court reasoned that habit evidence is defined by the adequacy of the sampling and the uniformity of the response to a specific situation. Here, Dr. Davis testified that she had treated thousands of patients on backboards and that she performed a spine examination 'the same way, every single time' before removing any patient. This demonstrated a regular, semi-automatic response to a recurring situation, which is the essence of habit. The court, adopting reasoning from other jurisdictions, held that even a complex medical procedure can become a habit if performed with sufficient regularity and consistency. The court also clarified that under Maryland law, such habit testimony does not require independent corroboration to be admissible; any lack of corroboration goes to the weight of the evidence for the jury to consider, not its admissibility.
Analysis:
This case significantly clarifies the application of Maryland Rule 5-406 in the context of medical malpractice litigation. By holding that a complex medical procedure can qualify as an admissible 'habit,' the decision provides a crucial evidentiary tool for healthcare providers, particularly in cases where medical records are incomplete or a physician's memory of a specific patient has faded due to the passage of time. The ruling underscores that the key factors are the frequency and uniformity of the practice, not its complexity. This precedent will likely influence how both plaintiffs and defendants approach cases involving undocumented procedures, shifting the focus to establishing or challenging the existence of an invariable professional routine.
