Is it a defense in a medical malpractice case to show that subsequent providers were negligent and caused the injury?

Copsey v. Park, 228 Md. App. 107, 137 A.3d 299 (2016), cert. granted, 449 Md. 408, 144 A.3d 704 (2016)

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NOTES

Negligence, Superseding causation: In the plaintiffs’ medical malpractice action asserting that the defendant physician negligently misread the decedent’s MRI/MRA brain exam six days before the decedent suffered a fatal stroke, the circuit court did not err in admitting evidence of the negligence of subsequent treating physicians and instructing the jury on superseding causation because when, as here, a doctor asserts a complete denial of liability, evidence of both negligence and causation attributable to a non-party is relevant.

Stroke leading to death.  Subsequent providers settled or dismissed.  Two pretrial motions:  (a) exclude reference to defendant status and (b) exclude evidence of fault of subsequent providers.  Denied.  Jury finds no negligence of first radiologist.  Appealed.  Argued moot.  Contaminated.

The crux of Appellant’s argument is that Dr. Park could not, as a matter of law, have been absolved of liability by the negligent acts of subsequent treating physicians. We disagree and shall explain.

In Martinez, we took up the issue of whether evidence of prior third-party negligence is admissible in a medical malpractice action where the defendant asserts a complete denial of liability.

Our holding in Martinez that “evidence of both negligence and causation attributable to a non-party is relevant where a defendant asserts a complete denial of liability,”

Social host liability: Is the Violation of a Statute Prohibiting The Knowing and Willful of Allowing Minors to Possess or Consume Alcohol Actionable in Negligence?

Kiriakos v. Phillips, 448 Md. 440, 139 A.3d 1006 (2016).

NOTES

CR § 10-117(b), which contains exceptions not pertinent to the cases before us, states that “an adult may not knowingly and willfully allow an individual under the age  of 21 years actually to possess or consume an alcoholic beverage at a residence, or within the curtilage of a residence that the adult owns or leases and in which the adult resides.”

We view CR § 10-117(b) as a recognition by the General Assembly, based on convincing evidence, that children under 21 are often less able to make responsible decisions regarding the consumption of alcohol and, as a result, are more susceptible to harming themselves or others when presented with the opportunity to drink in excess in a social, peer-pressured setting. It therefore carved out that specific class for special protection against adult social hosts who knowingly and willfully allow consumption of alcoholic beverages on their property.

First, upon a finding that the social host defendant knowingly and willfully allowed a member of the protected class to consume alcohol on the host’s premises in violation of the statute, in an action against the social host brought by or on behalf of the minor or, as in the Kiriakos case, by an injured third party, such conduct–if it substantially contributed to a diminution of the underaged person’s ability to act in a reasonable manner, and thereby caused injury–can be found to be a substantial factor in bringing about the harm to the underage person himself or to a third party

Second, contributory negligence is not a defense in an action by a protected class member against a social host defendant.

Because we rely heavily on the public policy set forth in CR § 10-117(b), we view this knowing and willful standard as a predicate for the limited social host cause of action we evaluate today

Admittedly, the terms “knowing” and “willful” are not usually paired with negligence. But nothing prevents us from superimposing this requirement on a cause of action for social host liability sounding in negligence where an integral statute on which the negligence depends makes knowledge and willfulness pivotal for culpability

For the reasons stated above, we conclude that Kiriakos can maintain a limited social host cause of action against Phillips through common law tort principles, like negligent entrustment, based on the strong public policy evident in CR § 10-117(b). To the extent that the Court of Special Appeals decisions in Hebb or Wright are inconsistent with this conclusion, we overrule them.

If the evidence supported the allegations, a reasonable jury could conclude: (1) Kiriakos’s injuries were a result of Robinson’s drunk driving; (2) Phillips could have anticipated Robinson’s negligent act because both Robinson’s substantial consumption of alcohol and the likelihood of his driving were apparent to Phillips; and (3) the accident occurred within an hour after Robinson left Phillips’s house. These conclusions, if made by the jury, would render Phillips’s conduct a legal cause of Kiriakos’s injuries.64