Tuer v. McDonald
701 A.2d 1101 (Md. 1997) (1997)
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Rule of Law:
Under Maryland Rule 5-407, evidence of a subsequent remedial measure is not admissible to prove negligence. This exclusionary rule is not overcome by the feasibility or impeachment exceptions when a defendant's decision was a judgment call between competing risks, rather than a claim that the alternative measure was impossible or that the original procedure was the safest conceivable.
Facts:
- Eugene Tuer, who had a 16-year history of angina pectoris, was admitted to St. Joseph’s Hospital on October 30, 1992, for coronary artery bypass graft (CABG) surgery scheduled for November 2.
- Upon admission and after experiencing chest pain, doctors stabilized Tuer with several medications, including an intravenous anticoagulant called Heparin.
- At 5:30 a.m. on November 2, in accordance with the hospital's protocol at the time, the administration of Heparin was discontinued to allow it to metabolize before the scheduled 9:00 a.m. surgery, thereby reducing the risk of bleeding.
- Shortly before surgery was to begin, Dr. McDonald was called to an emergency with another patient, necessitating a three to four-hour postponement of Tuer's operation.
- Dr. McDonald considered restarting Tuer's Heparin during the delay but made a professional judgment not to, believing the risk of bleeding from an inadvertent puncture during anesthesia outweighed the risk of Tuer suffering a cardiac event.
- Around 1:00 p.m., while waiting for the rescheduled surgery, Tuer went into cardiac arrest.
- Tuer survived the subsequent emergency surgery but died the following day, November 3, 1992.
- Following Tuer's death, the defendants and the hospital changed their protocol to continue administering Heparin until a patient is taken into the operating room.
Procedural Posture:
- Mary Tuer, as personal representative of her husband's estate, sued Drs. McDonald and Brawley for medical malpractice in the Circuit Court for Baltimore County, the trial court of first instance.
- Prior to trial, the defendants filed a motion in limine to exclude evidence of their post-incident change in the Heparin protocol, which the trial court granted.
- A jury returned a verdict in favor of the defendants.
- The plaintiff, Mary Tuer, as the appellant, appealed the judgment to the Court of Special Appeals of Maryland, the intermediate appellate court.
- The Court of Special Appeals affirmed the trial court's judgment in favor of the defendants, who were the appellees.
- The Court of Appeals of Maryland, the state's highest court, granted a writ of certiorari to review the decision of the Court of Special Appeals.
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Issue:
Does Maryland Rule 5-407 permit the introduction of evidence of a subsequent change in medical protocol to prove the feasibility of the new protocol or to impeach a defendant doctor's testimony, when the doctor's original decision was based on a professional judgment of relative risks at the time of the incident?
Opinions:
Majority - Wilner, Judge.
No. Maryland Rule 5-407 bars the admission of evidence of subsequent remedial measures to prove negligence, and the exceptions for feasibility and impeachment are to be construed narrowly. The court held that the defendant doctors' decision was a professional judgment call about competing risks, not a denial of the feasibility of an alternative, and thus the feasibility exception did not apply. The court reasoned that 'feasibility' is not 'controverted' when a defendant argues a chosen procedure had comparative advantages or was safer at the time, but only when the defendant asserts the remedial measure was not physically, technologically, or economically possible. The doctors here never claimed restarting Heparin was impossible; they testified that based on the risks of bleeding, it was medically inadvisable. Similarly, the 'impeachment' exception does not permit using a subsequent change in protocol to show a doctor's prior judgment was wrong or not honestly held. The fact that the protocol was changed after Mr. Tuer's death reflects a reevaluation of the relative risks in light of a tragic new experience, which is precisely the type of safety-improving conduct the rule is designed to encourage without it being used as an admission of prior negligence.
Analysis:
This decision solidifies Maryland's adoption of the modern rule on subsequent remedial measures, aligning state law with Federal Rule of Evidence 407 and explicitly overruling prior Maryland common law that allowed such evidence to prove the 'standard of care.' The court's narrow construction of the 'feasibility' and 'impeachment' exceptions is significant, preventing these exceptions from becoming a loophole that would swallow the exclusionary rule. The ruling protects defendants who make good-faith judgment calls between competing risks, ensuring they can later improve safety protocols based on new experience without that improvement being used as evidence of prior negligence. This strengthens the public policy rationale of encouraging safety enhancements by reducing the fear of legal liability.
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