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TESTIMONY OF SUBSEQUENT CHANGE IN PHYSICIAN'S PROTOCOL WAS NOT ADMISSIBLE IN A MEDICAL MALPRACTICE ACTION UNDER IMPEACHMENT AND FEASIBILITY EXCEPTIONS TO GENERAL RULE EXCLUDING EVIDENCE OF SUBSEQUENT REMEDIAL MEASURES Tuer v. McDonald, 347 Md. 507, 701 A.2d 1101 (1997) In an action for medical malpractice alleging that defendant physicians negligently failed to restart the administration of an anti-coagulant drug, Heparin, to a patient after heart surgery was delayed, the Court held that the trial court did not err in excluding evidence that after the patient's death, defendant physicians changed the protocol for the administration of the drug to patients awaiting surgery. The trial court's ruling was based on Maryland Rule 5-407, which renders evidence of subsequent remedial measures inadmissible to prove negligence or culpable conduct. The Court analyzed the common law with respect to the admissibility of subsequent remedial measures before the adoption of Maryland Rule 5-407 and noted that common law forbid the use of subsequent remedial measures as an admission of negligence or culpability but allowed the evidence as circumstantial proof of the standard of care. After discussing the legislative history of Federal Rules of Evidence 407 and the intentions of the Federal Rules Committee to overrule the "standard of care" exception, the Court noted that Maryland Rule 5-407 is broader than the common law it replaced and prohibits the admission of subsequent remedial measures to show either the applicable standard of care or a deviation from that standard of care. Rule 5-407(b) exempts subsequent remedial measure evidence from its exclusionary provisions when offered to prove feasibility, if feasibility is controverted. The Court explained that in the medical context, feasibility includes more than mere physical possibility and becomes controverted when there is an assertion that the remedial measure is medically unsafe. In the case at hand, however, the defendant physicians did not assert that the remedial measure was medically unsafe but that, in their view, not advisable at the time. The protocol then in effect was the product of a professional judgment call that the risk to the patient of having surgery commence while there was a significant amount of Heparin in his blood outweighed the prospect of harm accruing from allowing him to remain Heparin-free for several hours. The Court also considered the impeachment exception to Rule 5-407, and held that, for the same reasons cited with respect to the feasibility issue, the change in protocol was not admissible to impeach a statement by a defendant doctor that restarting the Heparin would have been unsafe. Read in context, the Court reasoned, that statement was a judgment call as to relative risks. The fact that the protocol was changed following the patient's death in no way suggests that the doctor did not honestly believe that his judgment call was appropriate at the time. [Editor's Note: Md. Rule 5-407 followed Fed. R. Evid. 407, with only minor stylistic changes. Fed. R. Evid. 407, however, was amended, effective December 1, 1997, to provide that evidence of subsequent remedial measures may not be used to prove "a defect in a product or its design, or that a warning or instruction should have accompanied a product." This change makes it explicit that Rule 407 applies to products liability actions. To date, a corresponding amendment to Md. Rule 5-407 has not been made.] |
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