Uninsured Motorist Claims and the Subsequent Negligent Medical Treatment Defense

May, 2024  | By Marcus K. Jones

Marcus Jones wearing a suit and blue tie.In general, a tortfeasor is liable for the damage he or she causes, in addition to the subsequent acts of a negligent medical practitioner. Underwood-Gary v. Mathews, 366 Md. 660, 668 (2001). Particularly, “[a] negligent actor is liable not only for harm that he directly causes but also for any additional harm resulting from normal efforts of third persons in rendering aid, irrespective of whether such acts are done in a proper or a negligent manner.” Morgan v. Cohen, 309 Md. 304, 310 (1987).

However, what happens when the original tortfeasor cannot be identified? This is often the case when a person is in a motor vehicle accident but the driver who caused the accident is a “phantom driver” or otherwise did not remain at the scene of the accident so the plaintiff could collect their information. If a plaintiff is injured in an accident and files an uninsured motorist claim with their insurance carrier, is the insurance carrier responsible if the doctor who treats the plaintiff for his or her injuries from the motor vehicle accident causes more injuries to the plaintiff?

Last year, the Appellate Court of Maryland was faced with this question in Browne v. State Farm Mutual Automobile Insurance Company, 258 Md.App. 452 (2023). The plaintiff, Tami Browne, was involved in a motor vehicle accident with a driver who fled the scene. Browne had a $50,000 uninsured/underinsured motorist policy with State Farm. In May 2018, Browne reported low back, hip, and neck pain and underwent physical therapy for three months. However, in July 2018, an MRI revealed a Tarlov cyst in her spine, and she elected to get surgery.

Browne filed an uninsured motorist claim with State Farm. Unable to settle the claim, Browne filed a breach of contract action against State Farm in circuit court in which she sought $50,000 in damages. Although Browne did not provide any documentation connecting the surgery to the accident, Browne’s medical expert, Dr. Rosenbaum, opined that the car accident aggravated Browne’s Tarlov cyst and the surgical removal of the cyst was necessary.

State Farm’s expert, Dr. Ammerman, opined that the non-surgical treatment, i.e., physical therapy, lumbar injections, and acupuncture, were all that were medically necessary and that the Tarlov cyst removal had caused additional symptoms that were not related to the motor vehicle accident. Browne filed a motion for summary judgment, which the circuit court denied.

The Appellate Court of Maryland vacated the denial of Browne’s motion for summary judgment and remanded the case back to the circuit court. In its opinion, the Appellate Court of Maryland established a burden-shifting test between plaintiff and defendant.

First, the defendant, or the insurance carrier in this case, must assert that subsequent negligent medical treatment was a superseding cause of the plaintiff’s injuries. This can be done with a general denial of liability in the answer to the plaintiff’s complaint. See Maryland Rule 2-323(d).

At the time of trial, the burden is then shifted to the plaintiff to lay a proper foundation regarding the introduction of medical bills as damages. In order to accomplish this, the plaintiff “must put on expert testimony opining as to the bills’ fairness, reasonableness, and necessity.” Browne, at 500.

The burden then shifts back to the insurance carrier, who must produce evidence “that a subsequent medical provider’s negligence was so extraordinary or unusual that it constituted a superseding cause and alleviated the defendant’s liability.” Id. at 508. The insurance carrier “will remain liable unless it is unforeseeable that medical professionals would perform this type of negligent medical treatment or the type of medical mistake is outside the realm of ordinary human fallibility.” Id. at 490.

The court identified five circumstances in which an injury caused by subsequent negligent treatment could be beyond the scope of the original tortfeasor’s liability, which includes:

  1. “extraordinary misconduct by medical professionals”
  2. “intentional torts committed by medical professions against the victim”
  3. “a victim’s elected treatment of an ailment known to be unrelated to the injuries caused by the negligent actor”
  4. “treatment by a medical professional the victim was negligent in selecting”
  5. “aggravation of the injury due to the victim’s negligence in carrying out the treatment of [his or] her injuries.” Browne, at 510.

Browne is the first time that a Maryland appellate court has had to consider the relationship between the subsequent negligence doctrine and the “fair, reasonable, and necessary” requirement for medical bills to be recoverable. The decision in Browne indicates that Maryland law as it stands is not clear-cut at this time, hence the remand to circuit court.

Additionally, the burdens imputed on the parties in this type of case require admissible evidence for a jury to decide. Although the court does not provide a definitive answer, this case should put insurance providers on notice of ways to craft an effective legal defense when a claimant’s demands include medical procedures that could have worsened the claimant’s condition after a motor vehicle accident.

If you have any questions or would like more information regarding the information in this article, Marcus Jones can be contacted at (410) 576-4776 or mjones@semmes.com.