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Mary C. Tuer, Individually, et al. v. Garth R. McDonald, et al. No. 9, September Term 1997

Subsequent remedial measure (Md. Rule 5-407) -- medical malpractice case -- admissibility to establish feasibility if controverted and for impeachment.

IN THE COURT OF APPEALS OF MARYLAND

No. 9 September Term, 1997 ______________________________________

MARY C. TUER, INDIVIDUALLY et al.

v.

GARTH R. McDONALD et al.

______________________________________ Bell, C.J. Eldridge Rodowsky Chasanow Raker Wilner, *Karwacki , Robert L. (retired, specially assigned) JJ. ______________________________________

Opinion by Wilner, J. ______________________________________ Filed: November 7, 1997
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This is a medical malpractice action filed by Mary Tuer, the surviving spouse and personal representative of her late husband, Eugene, arising from Eugene's death at St. Joseph's Hospital on November 3, 1992. Although the hospital and several doctors were initially joined as defendants, we are concerned here only with the action against Mr. Tuer's two cardiac surgeons, Drs. McDonald and Brawley, and their professional association. A jury in the Circuit Court for Baltimore County returned a verdict for those defendants, the judgment on which was affirmed by the Court of Special Appeals. Tuer v. McDonald, 112 Md. App. 121, 684 A.2d 478 (1996). We granted certiorari to consider whether the trial court erred in excluding evidence that, after Mr. Tuer's death, the defendants changed the protocol regarding the administration of the drug Heparin to patients awaiting coronary artery bypass surgery. The court's ruling was based on Maryland Rule 5-407, which renders evidence of subsequent remedial measures inadmissible to prove negligence or culpable conduct. We shall hold that the court did not err and therefore shall affirm the judgment of the Court of Special Appeals.

FACTUAL BACKGROUND The relevant underlying facts are not in substantial dispute. Mr. Tuer, 63, had

suffered from angina pectoris for about 16 years. In September, 1992, his cardiologist, Dr. Louis Grenzer, recommended that he undergo coronary artery bypass graft (CABG) surgery and referred him to the defendants for that purpose. The surgery was initially scheduled for November 9, 1992. On October 30, however, Mr. Tuer was admitted to St. Joseph's

Hospital after suffering chest pains the night before, and the operation was rescheduled for the morning of November 2. After a second episode of chest pain following Mr. Tuer's admission, Dr. Grenzer prescribed Atenolol, a beta blocker that reduces pressure on the heart, and Heparin, an anticoagulant, to help stabilize the angina. The Heparin was administered intravenously throughout the weekend, and, with the other medication Mr. Tuer was receiving, it achieved its purpose; there were no further incidents of chest pains or shortness of breath. The defendants assumed responsibility for Mr. Tuer on November 1. Dr. McDonald was to perform the operation, with Dr. Brawley assisting. The operation was scheduled to begin between 8:00 and 9:00 a.m. on November 2.1 In accordance with the protocol then followed by the defendants and by St. Joseph's Hospital, an anesthesiologist caused the administration of Heparin to be discontinued at 5:30 that morning. That was done to allow the drug to metabolize so that Mr. Tuer would not have an anticoagulant in his blood when the surgery commenced. Both Mr. Tuer and Dr. McDonald prepared for the 9:00 a.m. surgery. Shortly before the surgery was due to begin, however, Dr. McDonald was called to deal with an emergency involving another patient, whose condition was more critical than that of Mr. Tuer, and that required a three- to four-hour postponement of Mr. Tuer's operation. Mr. Tuer was taken

The record is somewhat confusing as to the times. There is evidence indicating that the surgery was scheduled for 9:00 and other evidence stating that it was scheduled for 8:00. It may be that the earlier time refers to when Mr. Tuer was to be taken to the operating room and prepared for the surgery, with the operation actually to commence at 9:00. -2-

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to the coronary surgery unit (CSU) in the meanwhile, where he could be closely monitored. Dr. McDonald considered restarting the Heparin but decided not to do so. Dr. McDonald next saw Mr. Tuer just after 1:00 p.m., when he was summoned to the CSU and found his patient short of breath and with arrhythmia and low blood pressure. Quickly thereafter, Mr. Tuer went into cardiac arrest. Appropriate resuscitation efforts, including some seven hours of surgery, were undertaken, and, although Mr. Tuer survived the operation, he died the next day. Following Mr. Tuer's death -- apparently because of it -- the defendants and St. Joseph's Hospital changed the protocol with respect to discontinuing Heparin for patients with unstable angina.2 Under the new protocol, Heparin is continued until the patient is taken into the operating room; had that protocol been in effect on November 2, 1992, the Heparin would not have been discontinued at 5:30 a.m., and no issue would have arisen as to restarting it. The dispute over whether evidence of the new protocol was admissible arose several times during the trial, in different, though related, contexts. As a preliminary matter, it is important to note that, at no time during the trial did the plaintiff complain about the initial decision to discontinue the Heparin at 5:30 in anticipation of the operation commencing at 8:00 or 9:00 that morning; nor did she complain about Dr. McDonald's postponing the surgery in order to deal with the other, more critically ill patient. Her expert witnesses

Two of the testifying doctors described stable angina as a pattern of chest pain that i predictable -- it will occur following a certain level of exercise or emotional distress, for example, and will be relieved when the exercise or distress stops or medication is taken. Unstable angina includes a sudden development of chest pain or a change in a pattern. -3-

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confirmed that neither of those decisions constituted a departure from the applicable standard of care. With respect to the subsequent remedial measure issue, her sole complaint concerned Dr. McDonald's (or Dr. Brawley's) decision not to restart the Heparin once the decision was made to postpone the surgery, and the evidence produced by her focused on that decision. The experts' point was that, while Mr. Tuer would still have some benefit from the Heparin as it metabolized from 5:30 to 8:00 or 9:00, he would have no benefit from it thereafter, and that left him vulnerable. It was their position that Mr. Tuer's unstable angina returned that morning and ultimately led to his cardiac arrest and death. The admissibility of the change in protocol first came before the court through the defendants' motion in limine to exclude any reference to the change in practice. At a hearing on that motion, the plaintiff took alternative positions with respect to the admissibility of the evidence. First, she contended that, because the defendants were claiming that the protocol in place on November 2 was a correct one, consistent with the applicable standard of care, the new protocol was not really a remedial measure and, for that reason, did not fall under the Rule. The court rejected that approach, concluding that a defendant did not have to admit wrongdoing in order for a subsequent change to be regarded as remedial. The plaintiff has not pressed that argument in this appeal. She also asserted that the evidence would be admissible to show that restarting the Heparin was "feasible," to which the court responded that it would allow the evidence for that purpose if the feasibility of restarting the Heparin

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was denied by the defendants.3 The defendants made clear that they did not intend to assert that the new protocol was not feasible and that they had no problem with the plaintiff asking Dr. McDonald whether Heparin could have been restarted. The court granted the motion subject to revisiting it "because of the way the trial goes." The Heparin issue first arose at trial when the plaintiff called Dr. McDonald as an adverse witness. In direct examination, Dr. McDonald stated that he approved

discontinuation of the Heparin at 5:30 so that it would metabolize before the scheduled surgery. That decision, he said, was taken to minimize the risk attendant to an inadvertent puncture of the carotid artery by the anesthesiologist. Dr. McDonald explained that, in the initial stage of CABG surgery, the anesthesiologist inserts a catheter into the internal jugular vein in the neck and that the procedure for doing so involves, first, puncturing the vein with a needle and then, after inserting a guide wire, making an incision and inserting the catheter. He pointed out that the jugular vein lies in close proximity to the carotid artery, which is a high pressure vessel that brings blood from the heart to the brain, and that, in his experience, there was a 5% to 10% incidence of the anesthesiologist inadvertently puncturing the carotid artery when attempting to insert the needle into the jugular vein. A puncture of the carotid artery, he said, could

As noted, under the new protocol the issue of restarting the Heparin would not have arisen, as the drug would not have been discontinued. The feasibility question related to the defendants' position that it was inadvisable for a patient to have Heparin in the bloodstream at the commencement of CABG surgery. That was the reason the Heparin was both discontinued and not restarted. The plaintiff's position was that Mr. Tuer could safely have undergone the CABG surgery with Heparin in his blood, and she wanted to use the new protocol to establish that fact. -5-

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produce a serious bleeding problem, and it was for that reason that the protocol called for patients not to have an anticoagulant in their blood when the surgery commenced. He first said that he was unaware of whether any fatalities had resulted at St. Joseph's Hospital or in his particular practice from such an inadvertent puncture, but he did recall that they had had "some serious consequences from inadvertent carotid artery puncture in our hospital." In later testimony, he recounted that he was "very familiar with fatalities in the literature from inadvertent carotid puncture in patients who are having cardiac surgery." In response to a specific question, he confirmed that "the procedure in place on November the 2nd, 1992, at St. Joseph Hospital, for coronary artery bypass patients on Heparin therapy was to discontinue the Heparin three to four hours prior to the time of the surgery . . ." and that that practice and procedure "was required by the standard of care applicable at that time." He explained: "[t]hat is what we did at our hospital." Following that answer, the plaintiff attempted to set up a basis for inquiring as to the subsequent change. He elicited from Dr. McDonald that there were no circumstances prior to November 2, 1992 in Dr. McDonald's practice at St. Joseph's Hospital in which a patient with Mr. Tuer's clinical profile -- unstable angina stabilized in the hospital with Heparin therapy pending coronary bypass surgery -- would not have had their Heparin discontinued three to four hours prior to their surgery. Dr. McDonald confirmed that "that was our policy at the time. It would have been a departure, and sitting here this morning I just can't think of a reason off hand why that could be." He added that he had considered restarting the Heparin once the surgery was postponed and elected not to do so because he did not want
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the drug in Mr. Tuer's blood when the surgery commenced. Counsel asked whether it was "feasible to restart Heparin for Mr. Tuer after your decision to postpone the surgery," but the court sustained an objection to that question. Counsel then inquired whether it was Dr. McDonald's contention "that it would have been unsafe to restart Mr. Tuer's Heparin after your decision to postpone his surgery," (emphasis added) to which the witness responded in the affirmative, for the reason already given. With that answer, plaintiff urged that she was entitled to ask about the change in protocol for impeachment purposes -- presumably to show that it is not unsafe to bring a patient into surgery with Heparin in his or her system. The court again rejected that argument, distinguishing between the situation presented, of the doctor changing his mind about the relative safety of the protocol, apparently as a result of the unfortunate death of Mr. Tuer, and the case of the doctor not really believing at the time that it would have been unsafe to restart the Heparin. The latter, the court concluded, would constitute grounds for impeachment, but not the former: "In order to impeach his opinion that it was unsafe on November the 1st, 1992, there need be evidence that he didn't think it was unsafe on November the 1st, 1992, not what he thought in January or February of 1993." On cross-examination, Dr. McDonald noted that, had Mr. Tuer redeveloped chest pains, indicative of an episode of unstable angina, he would have restarted the Heparin, but that no such episode occurred until about 1:00, at which point Mr. Tuer was given a large dose of nitroglycerine. He also pointed out that Heparin is, in fact, used routinely during CABG surgery, to prevent clotting as the blood passes through a heart-lung machine. The
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doctor explained that the Heparin is introduced after the initial incision is made, just before the patient is hooked up to the heart-lung machine.4 That occurs, he said, from 15 to 30 minutes after the initial puncturing of the internal jugular vein by the anesthesiologist. In contradiction of Dr. McDonald's views, the plaintiff presented evidence from Dr. Gottdiener, a cardiologist, that, although neither the decision to discontinue Heparin at 5:30 in anticipation of surgery at 9:00 nor the decision to postpone the surgery in order to deal with the more critically ill patient constituted a departure from the applicable standard of care, the standard of care did require the reinstitution of Heparin in order to manage what Dr. Gottdiener believed to be Mr. Tuer's existing unstable angina and that the failure to resume that therapy after the postponement amounted to a deviation from that standard of care.5 That view was expressed as well by Dr. Tice, another of the plaintiff's expert witnesses. In deposition testimony read to the jury, Dr. Tice stated that the half-life of

More precisely, Dr. McDonald said that, normally, the internal mammary artery, which runs behind the breast bone, is used for the bypass and that the Heparin is reintroduced once that artery is "harvested." In situations, such as Mr. Tuer's, where that artery is not used, the Heparin is not reintroduced until the pipes coming from the heart-lung machine are sutured. Dr. McDonald and other expert witnesses added that, when the surgery is completed, a coagulant (Protamine) is introduced to counter the effect of the Heparin. At that point, the danger from clots has been lessened. Although the point is not stressed in this appeal, the plaintiff's experts expressed the opinion that Mr. Tuer's angina did, indeed, become unstable that morning and that the Heparin should have been restarted to deal with that condition. They drew that conclusion largely from the fact that, while waiting in the CSU, Mr. Tuer had become nauseous and had vomited, which they saw as a symptom of ischemia (insufficiency of oxygen supply to the heart). The defendants and their experts attributed the nausea to the morphine sulfate that Mr. Tuer received that morning. Dr. Brawley prescribed Compazine to counteract the nausea and, in the defendants' opinion, that sufficed to deal with the problem. -85

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Heparin was one hour and that it loses its effect two to two-and-a-half hours after it is discontinued. In his view, the applicable standard of care required that the Heparin be restarted when the operation was postponed and that it be discontinued again an hour before the rescheduled surgery was due to commence. He opined that Dr. Brawley, whom he regarded as the physician in charge, deviated from the standard by not restarting the Heparin. The defendants produced three expert witnesses who supported Dr. McDonald's decision not to restart the Heparin. They each stated that, because Mr. Tuer's unstable angina had been stabilized over the weekend, because he did not appear to be suffering from ischemia, and because the other medication he was taking would suffice, it was not necessary to restart the Heparin. They also offered a number of reasons why it would have been inappropriate for Mr. Tuer to have Heparin in his blood at the commencement of the surgery. Apart from the problem of an inadvertent puncture of the carotid artery by the anesthesiologist, they noted the value of curtailing bleeding in the area of the actual surgery. They confirmed that surgeons like to use the mammary artery as the bypass vessel and that it was desirable to avoid unnecessary bleeding when attempting to "harvest" that artery. They each opined that a reasonably competent cardiovascular surgeon would not have restarted the Heparin in anticipation of a three- to four-hour delay in the surgery. Dr. Fortuin, in particular, recounted what he regarded as "logistical" difficulties in recommencing the drug. He stated that, to get the benefit of the Heparin, a large dose would have had to be administered, which would take several hours to dissipate, and expressed concern over the "roller coaster" effect of stopping and starting the drug or not knowing
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when to stop it in order to allow the drug to metabolize prior to surgery. Seizing on the statement that it would be logistically difficult to have restarted the Heparin, the plaintiff inquired of Dr. Fortuin on cross-examination whether it would have been "feasible" to restart the drug, but the court, as it did when that question was put to Dr. McDonald, sustained an objection.

DISCUSSION Prior to the adoption of Maryland Rule 5-407, Maryland followed the common law with respect to the admissibility of subsequent remedial measures. We first adopted that law principally as articulated by the Supreme Court in Columbia v. Hawthorne, 144 U.S. 202, 12 S. Ct. 591, 36 L. Ed. 405 (1892) -- a pre-workers' compensation era negligence action by an employee against his employer for injuries sustained when a pulley fell on him. The employer, who lost in a territorial trial court, complained about the allowance of evidence regarding measures undertaken after the accident to make the pulley more secure. The Supreme Court held that the evidence was inadmissible and reversed. The Court regarded it as "settled" that "the evidence is incompetent, because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant." Columbia, 144 U.S. at 207, 12 S. Ct. at 593, 36 L. Ed. at 406. In this regard, the Court quoted with approval from Morse v. Railway Co.,
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16 N.W. 358, 359 (Minn. 1883): "[E]vidence of this kind ought not to be admitted under any circumstances . . . upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so; and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence." 144 U.S. at 208, 12 S. Ct. at 593, 36 L. Ed. at 407. The introduction of this principle into Maryland law came in Ziehm v. United Electric L.& P. Co., 104 Md. 48, 64 A. 61 (1906). Ziehm was a negligence action against an electric utility by a telephone lineman who was injured when, in the course of repairing a malfunction on a telephone line, he came into contact with uninsulated electric wires. His claim was that the wires were strung too close to the telephone pole. The principal question on appeal was whether the trial court erred in finding the plaintiff to be contributorily negligent as a matter of law, but a subsidiary issue was whether the court improperly excluded evidence that the electric wires had been relocated following the accident. Our succinct response to that complaint was that the ruling was correct because "[t]he change of the location of the wires after the accident, could not affect the responsibility of the appellee, at the date of the accident." Ziehm, 104 Md. at 61, 64 A. at 63. For that

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proposition, we cited Columbia v. Hawthorne and two earlier Maryland cases that had nothing to do with subsequent remedial measures but did exclude comparative evidence on relevance grounds.6 As indicated, the Supreme Court, in Columbia, held the subsequent remedial measure inadmissible both as an admission of negligence and on more general relevance grounds, as "having no legitimate tendency to prove that the defendant had been negligent before the accident . . . ." The summary statement by this Court in Ziehm would seem to indicate our concurrence with that view. In several subsequent cases, however, we departed from that approach and began to view the exclusionary rule in more restrictive terms, as precluding subsequent conduct evidence only when offered as an admission of liability or negligence on the part of the defendant but allowing it as independent direct or circumstantial evidence of negligence. We see this first in American Paving & Con. Co. v. Davis, 127 Md. 477, 96 A. 623 (1916). The plaintiff's house was damaged by a fire allegedly caused by sparks emitted from the defendant's steam shovel. The defendant excepted to testimony that, after
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The two Maryland cases were Baltimore and Yorktown Turnpike Road v. Crowther, 63 Md. 558, 1 A. 279 (1885) and Wood v. Heiges, 83 Md. 257, 34 A. 872 (1896). Crowther was an action against a turnpike company for negligently constructing or maintaining a road in such manner that the paved portion was considerably higher than the unpaved shoulder, leaving a deep rut at the edge of the road. We held evidence that other roads were similarly constructed to be inadmissible, declaring that "[i]t was the duty of the jury to decide whether this particular road was safe for travel by evidence of its actual condition, and not by comparing it with the condition of other roads ." 63 Md. at 571, 1 A. at 283. In Wood v. Heiges, a foundry employee injured on the job sued his employer, complaining about the safety of a procedure and piece of machinery that caused his injury. In conformance with the turnpike case, we held evidence regarding machines and procedures used by other companies to be inadmissible: "The issue was whether the particular machinery was proper and suitable; and that was to be determined by its actual condition, and not by comparing it with other machines." 83 Md. at 271, 34 A. at 875. -12-

the fire, it installed a wire screen over the smokestack of the steam shovel and that the sparks escaping from the machine thereafter were much smaller. We concluded that the evidence was admissible "not only for the purpose of showing that the fire was caused by the sparks from the steam shovel, but also as tending to show negligence on the part of the defendant." 127 Md. at 483, 96 A. at 626. We noted that "[t]he mere fact that the defendant put a wire hood or screen over the smokestack would not be admissible for the purpose of establishing an admission of liability by the defendant [citing Ziehm and Columbia] but evidence of the effect of the screen was admissible as reflecting upon the question whether the defendant had exercised proper care and caution to avoid injury to the plaintiff's property." 127 Md. at 483-84, 96 A. at 626. In State v. Consolidated Gas Co., 159 Md. 138, 150 A. 452 (1930) and Long v. Joestlein, 193 Md. 211, 66 A.2d 407 (1949), we seemed to return to the broader view of the exclusionary rule. State v. Consolidated Gas Co. was a virtual replay of Ziehm. The

plaintiff, whose husband was electrocuted when he came into contact with the defendant's wires, attempted to inquire what the defendant had done to the line after the accident. We affirmed the exclusion of that evidence, quoting from Ziehm that the change in location of the wire "`could not affect the responsibility of the appellee at the date of the accident.'" 159 Md. at 144, 150 A. at 455. In Long, a domestic servant who sued her employer when she tripped on a landing step in his home, complained that the court excluded evidence that the employer had painted the landing after the accident. We first held that the evidence was "not admissible as an admission of liability" but added that it would also "be immaterial,
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because such action by defendant could not affect his liability at the time of the accident." 193 Md. at 220, 66 A.2d at 411. In Blanco v. J.C. Penney, 251 Md. 707, 248 A.2d 645 (1967), we retreated to the more restrictive approach. Blanco was a negligence action by a store customer who was injured when she walked into a plate glass panel that, to her, looked like an open door. On appeal from a directed verdict for the defendant, the plaintiff complained about the exclusion of evidence that, in replacing the shattered panel following the accident, the defendant pasted decals on the glass. The purpose of the evidence, she averred, was not to establish "an admission of liability" on the defendant's part but rather to show the effect of the decals "as reflecting upon the question whether Penney had exercised proper care and caution to avoid causing injuries such as those sustained by the appellant." 251 Md. at 709, 248 A.2d at 64647. We agreed with her and reversed, quoting extensively from American Paving & Contracting Co. v. Davis, supra, 127 Md. at 483-84, 96 A. at 626, and holding that, although the evidence would not be allowed to show an admission of negligence or liability, it was admissible as reflecting on whether the defendant had exercised proper care to avoid injury to the plaintiff. Our last application and articulation of the common law rule came in Wilson v. Morris, 317 Md. 284, 296, 563 A.2d 392, 397 (1989). The plaintiff, a disabled person in the defendant's care, was left alone in a wheelchair in a waiting area, in accordance with the defendant's then-current monitoring policy. One of her complaints on appeal, in which we found merit, was that the trial court excluded evidence of a change in that policy following
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her accident. Quoting from 5 LYNN MCLAIN, MARYLAND PRACTICE: MARYLAND EVIDENCE

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