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Law School Case Brief

Tuer v. McDonald - 347 Md. 507, 701 A.2d 1101 (1997)


Md. R. Evid. 5-407 provides as follows: (a) In General. When, after an event, measures are taken which, if in effect at the time of the event, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. (b) Admissibility for Other Purposes. This rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. 


The decedent, Eugene Tuer, died at defendant St. Joseph's Hospital on Nov. 3, 1992 while undergoing coronary artery bypass surgery. Plaintiff Mary Tuer, the decedent's surviving spouse and personal representative, filed a filed a medical malpractice action in Maryland state court against the decedent's cardiac surgeons, defendants Dr. McDonald and Dr. Brawley, and their professional association. A jury in the Circuit Court for Baltimore County returned a verdict for Dr. McDonald and Dr. Brawley. On appeal, Tuer asserted that the trial court erred in excluding evidence that, after the decedent's death, the doctors 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 rendered evidence of subsequent remedial measures inadmissible to prove negligence or culpable conduct. Tuer appealed, and the Court of Special Appeals of Maryland affirmed. Tuer was granted a wit of certiorari. 


Did the trial court err in excluding evidence regarding the protocol?




The Court of Appeal of Maryland affirmed the judgment of the court of special appeals. The court held that the trial court did not err in excluding the evidence as to the change in protocol. Under Md. R. Evid. 5-407, evidence of subsequent remedial measures was not admissible to show either what the applicable standard of care was at the time of the occurrence or a deviation from that standard of care. The evidence was not admissible under the feasibility exception to the exclusionary rule because neither doctor testified that a restarting of the Heparin was not feasible, rather they testified that it was feasible but, in their view, not advisable. Thus, feasibility was not controverted. The evidence also was not admissible under the exception to the exclusionary rule to impeach Dr. McDonald's statement that administering Heparin would have been unsafe because it was clear that Dr. McDonald made a judgment call. The fact that the protocol was changed following the decedent's death in no way suggested that Dr. McDonald did not honestly believe that his judgment call was appropriate at the time.

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