Maryland Court of Appeals Examines Offering Extraneous Jury Instructions in Medical Malpractice Cases

Mark Armacost v. Reginald J. Davis

Case No. 69, September Term, 2017

Opinion by J. McDonald

            In January 2012, Mark Armacost (“Armacost”) developed an infection after undergoing a spinal surgery performed by Dr. Reginald Davis (“Dr. Davis”).  This infection caused Armacost pain and ultimately required him to undergo a period of hospitalization in April 2012.  Two years later, Armacost filed suit against Dr. Davis alleging, among other things, that Dr. Davis violated the standard of care expected of a reasonably competent health care provider.  After three days of testimony, the trial court instructed the jury on the laws governing its decision, including Armacost’s claims of medical malpractice.  When giving these instructions, the trial court first provided the jury with instructions on the general law of negligence, which states that the jury should measure the defendant’s conduct against that of a reasonable person in similar circumstances.  The court then instructed the jury that the particular standard of care applicable in this case is that of a reasonably competent health care provider. 

           

            The jury then deliberated for three days.  At the end of the first two days, jurors sent notes asserting that they were “undecided” and whether they could end deliberations.  On the third day, the jurors sent notes expressing concerns about child care and asking what would happen if they were unable to reach a decision. In response, the trial court proposed to inform the jury that it would only need to deliberate for an additional hour and to give the jury a “modified Allen charge” encouraging it to work to reach a resolution. Counsel for Dr. Davis objected to these propositions and proposed that the jury should be allowed to deliberate to the end of the day, and that if it did not return a verdict by then, Dr. Davis’ counsel would move for a mistrial.  The trial court dismissed counsel’s objection and provided the jury with both instructions.  As the trial court was about to excuse the jury, it returned to the courtroom and entered a verdict in favor of Armacost on the count of negligence.

            On appeal, the Maryland Court of Appeals was asked to determine whether the trial court abused its discretion when: (1) instructing the jury on the standard of care for both general negligence and medical malpractice; and (2) providing a “modified Allen charge” along with an instruction that the jury would only need to deliberate for an hour.  On the first issue, counsel for Dr. Davis argued that the trial court abused its discretion because providing two instructions on the relevant standard of care may confuse the jury on how it is expected to assess Dr. Davis’ conduct.  On the second issue, counsel for Dr. Davis argued that giving the modified Allen charge immediately before telling the jury that it had a one-hour deadline to deliberate was “unduly coercive.”

            The Maryland Court of Appeals determined that the trial court did not abuse its discretion when giving either instruction.  The Court reasoned that giving both negligence instructions is not wrong as a matter of law, nor misleading, when a trial court makes it clear that the claim of general negligence involves an objective standard that requires a jury to measure a defendant’s conduct against that of a reasonable person in similar circumstances, and that the objective standard in the case before the jury requires it to compare the conduct of Dr. Davis to that of a reasonable health care provider.  In this case, the Court found that the provided jury instructions, when viewed in the context of the trial, were not misleading and were not likely to prejudice Dr. Davis.

            Regarding the modified Allen charge, the Court reasoned that giving the modified Allen charge itself was not an abuse of discretion because, although it urged the jurors to render a verdict, the content of the instruction did not favor either party and the trial court explicitly told the jurors “not [to] surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.” When considering whether it was an abuse of discretion to provide the modified Allen charge along with an indication that the jury would only need to deliberate for an hour, the Court reasoned that, in context, the instructions were not unduly coercive because they occurred after several events suggesting that the jury wanted information regarding its schedule.  However, the Court expressed that instructions informing juries of how long they must deliberate must be considered in the context of their respective trials.

-Horton McCormick, Associate Attorney

Maryland Court of Special Appeals Defines the Appropriate Damages Calculation for Hearing Loss as an Occupational Disease

Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen, Court of Special Appeals of Maryland, November 1, 2019

            This past November, the Court of Special Appeals of Maryland provided some much-needed clarity on the proper way to calculate a worker’s occupational hearing loss in its decision in Montgomery County, Maryland v. Anthony G. Cochran and Andrew Bowen.

            Anthony Cochran and Andrew Bowen were firefighters in Montgomery County for over thirty years and had developed hearing loss from their repeated exposure to loud noises associated with their job. After retiring, Cochran and Bowen both filed claims for workers’ compensation benefits for occupational deafness. Mr. Bowen’s claim also included his development of tinnitus—ringing in the ears.      

     

            In 2015, two years after retiring, Mr. Cochran underwent an audiogram which showed demonstrable hearing loss in both ears. Mr. Cochran then underwent a second audiogram in 2016 which showed less overall hearing loss than the 2015 audiogram. Relying on the 2015 audiogram, the Workers’ Compensation Commission entered an order finding that Mr. Cochran had sustained an occupational disease of hearing loss. The Commission also found that Mr. Bowen had sustained an occupational disease of hearing loss and awarded him compensation for a permanent partial disability based on the loss of the use of both of his ears due to his tinnitus. The County appealed these decisions to the Circuit Court of Montgomery County which affirmed the Commission’s orders. The County then appealed to the Court of Special Appeals claiming that the Commission erred by: 1) using the 2015 audiogram to determine Mr. Cochran’s occupational deafness as opposed to the more recent 2016 audiogram; 2) erroneously calculating both claimants’ total average hearing loss; and 3) awarding Mr. Bowen permanent partial disability benefits for tinnitus.

            The Court of Special Appeals held that the Commission did not err in using the 2015 audiogram as opposed to the 2016 audiogram. Labor and Employment Code § 9-650 provides that “the average thresholds in hearing shall be calculated by: adding together the lowest measured losses in each of the 4 frequencies….” The Court of Special Appeals determined that this section did not reference multiple or alternative audiograms, but rather provided that when multiple measurements are taken within one test, the measurement showing the lowest amount of hearing loss should be used.  

Next, the Court held that the Commission did not err in calculating the men’s total average hearing loss. The Maryland Labor and Employment Code provides that when calculating a claimant’s total average hearing loss, one-half of a decibel shall be deducted for every year of the employee’s age after 50 until the time of his/her last exposure to the industrial noise. In calculating Mr. Cochran and Mr. Bowen’s total average hearing loss, the Commission therefore deducted one-half of a decibel for each year between each of their 50^th birthdays and the date they retired. The County believed this was an error and argued that under the statute, one-half of a decibel should be deducted for each year between the worker’s 50^th birthdays and the time of his/her respective audiogram. In support of this argument, the County claimed that the term “industrial noise” includes all loud noises which individuals are exposed to every day. The Court rejected this argument stating that if such an interpretation were true, there would never be a “last exposure to industrial noise” and held that the term only referred to harmful noise in the workplace.

Finally, the Court found that the Commission’s award to Mr. Bowen for permanent partial disability based on his tinnitus was an error. In so holding, the Court determined that tinnitus does not fall within the category of occupational deafness, but rather, is an occupational disease which requires a showing of disablement in order to recover damages. The Court noted that the plain language of the statute outlining occupational deafness does not make any mention of tinnitus. As such, without a contrary intent by the Maryland General Assembly, tinnitus must be analyzed as an ordinary occupational disease requiring Mr. Bowen to show that he had suffered a “disablement,” which he failed to do.

            This decision provides much needed clarity on the proper calculation for hearing loss under the highly technical and complex statutory scheme of workers’ compensation benefits.

-Jordan Kramer, Law Clerk

Maryland Court of Special Appeals Examines Entity’s Ability to Control Employee when Determining Co-Employment

Uninsured Employers’ Fund v. Tyson Farms, Inc., et. al.

Case No. 1057, September Term, 2018

Opinion by J. Wright

            On April 15, 2015, Mauro Jiminez Garcia (“Garcia”) suffered an occupational disease to his lungs arising out of his work raising chickens on a farm owned by Dai K. Nguyen (“Nguyen”).  The chickens on Nguyen’s farm were raised for, and owned by, Tyson Farms, Inc. (“Tyson”).  Garcia filed a Maryland Workers’ Compensation claim against Nguyen.  Nguyen did not have workers’ compensation insurance; therefore, The Uninsured Employers’ Fund (“UEF”) became a party to the case.  Garcia and UEF then impleaded Tyson into the claim.  After a hearing on March 3, 2016, the Workers’ Compensation Commission declared that Garcia’s injuries arose out of the course of his employment, and that both Nguyen and Tyson were co-employers of Garcia at the time of his injuries.  

Tyson appealed the Workers’ Compensation Commission’s decision to the Circuit Court for Worcester County.  After the presentation of evidence at the jury trial, UEF and Tyson moved for judgment.  The circuit court denied both motions.  The jury returned a verdict finding that Tyson was not a co-employer at the time of Mr. Garcia’s injuries.  UEF appealed the matter to the Maryland Court of Special Appeals to determine whether the circuit court erred in denying UEF’s motion for judgment.  

            The Maryland Court of Special Appeals determined that the circuit court erred in denying UEF’s motion for judgment, and further determined Tyson and Nguyen were co-employers of Garcia.  In coming to their decision, the Court of Special Appeals looked toward the five factors which determine whether an employer-employee relationship existed, as outlined by the Maryland Court of Appeals: (1) the power to select and hire the employee; (2) the payment of wages; (3) the power to discharge; (4) the power to control the employee’s conduct; and (5) whether the work is part of the regular business of the employer.[1]  Of those five factors, “control” is the most important.  In fact, whether the employer has the right to control and direct the employee in the performance of the work and in the manner in which the work is to be done, is the determinative test.[2]

            In this particular case, Tyson representatives taught Mr. Garcia how to operate the chicken farm.  Tyson employees came to the farm between two and four times per week in order to teach Garcia how to maintain the farm and raise the chicken.  Garcia assumed the day-to-day responsibility for the chickens, and Garcia, per Tyson’s requirements, resided at the farm 24 hours per day, 7 days per week, to ensure proper operation of the farm.  Since Garcia resided at the farm, Tyson spoke directly to Garcia if Tyson required any changes to be made.  Garcia was responsible for making all changes.

Tyson and Nguyen entered into a Broiler Production Contract, which required Tyson to retain ownership to chickens, feed, and medication, and provide veterinary services and technical advice.  The contract further required Nguyen to furnish labor, materials, and utilities necessary for raising chickens, and when necessary, seek Tyson’s technical advice.  Nguyen further had to maintain bio-secure housing for the chickens, and implement Tyson’s recommended best animal management practices.  The contract further provided Tyson the unilateral right to terminate the relationship should Nguyen fail the comply with the Contract.  Tyson also placed signs at the farm bearing the Tyson logo.  

Given the extensive amount of control Tyson exercised over Garcia’s work, the Court of Special Appeals determined that there was more than sufficient information to establish an employment relationship as a matter of law. Therefore, the Circuit Court erred in denying UEF’s motion for judgment.

-Ashley Bond, Associate Attorney 

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[1] Mackall v. Zayre Corp., 293 Md. 221, 230 (1982).

[2] Whitehead v. Safway Steel Products, Inc., 304 Md. 67, 78 (1985).