• The pre-treatment conduct of a patient is irrelevant in determining whether a physician is liable for violating the standard of care in rendering medical services to that patient
  • July 17, 2018
  • Background

    Dr. Osbourne surgically removed Joao Barbosa’s inflamed gallbladder. During the procedure Dr. Osbourne cut Mr. Barbosa’s bile duct. Mr. Barbosa and his wife, brought a medical malpractice action in the Circuit Court for Frederick County, Maryland, alleging that Dr. Osbourne negligently cut Mr. Barbosa’s bile duct. Dr. Osbourne denied any negligent conduct and further argued that Mr. Barbosa’s failure to seek treatment for his severe abdominal pains prior to Dr. Osbourne’s involvement constituted contributory negligence by Mr. Barbosa. At the close of evidence the jury received an oral instruction and a special verdict sheet which indicated that contributory negligence was a defense to the Barbosas’ claims. The jury did not find that Dr. Osbourne breached the standard of care and therefore did not reach the question whether Mr. Barbosa was contributorily negligent.

    Holding

    The Court of Special Appeals held that the Trial Court erred when it permitted Dr. Osbourne to pursue the defense of contributory negligence based solely on Mr. Barbosa’s pre-treatment conduct, in giving a contributory negligence jury instruction, and in providing the jury with a special verdict sheet containing the defense of contributory negligence. The Court explained that the pre-treatment conduct of a patient is irrelevant in determining whether a physician is liable for violating the standard of care in rendering medical services to that patient. Further, the Court held that the error was not harmless, because it was so prejudicial that it likely affected the jury’s verdict. Therefore, the case was reversed and remanded to the Trial Court.

    Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or [email protected]