Brown v. State Farm Mut. Auto. Ins.

Tami Browne v. State Farm Mutual Automobile Insurance Co., No. 1825, September Term,
2021. Opinion by Adkins, Sally D., J.

HEADNOTES:

INSURANCE LAW – ADMINISTRATIVE & JUDICIAL REMEDIES FOR LACK OF
GOOD FAITH – APPLICATION OF COLLATERAL ESTOPPEL

Administrative and judicial remedies are available to a first-party insured against an insurer
who fails to act in good faith under Md. Code (1995, 2017 Repl. Vol.) § 27-1001 of the
Insurance Article and Md. Code (1974, 2020 Repl. Vol.) § 3-1701 of the Courts and
Judicial Proceedings Article. An insured must first receive a final decision before bringing
a civil action claiming lack of good faith in circuit court. The initial decision from the
Maryland Insurance Administration may become final or a final decision may be issued
from the Office of Administrative Hearings. The doctrine of collateral estoppel does not
bar an insured from bringing a civil action for lack of good faith following an adverse
decision from the Office of Administrative Hearings.

TORTS – SCOPE OF LIABILITY – SUBSEQUENT NEGLIGENT MEDICAL
TREATMENT

An original tortfeasor remains liable for subsequent negligent medical treatment of the
original injury unless the subsequent treatment is a superseding cause. The subsequent
treatment may be a superseding cause in the following instances: (1) extraordinary
misconduct by medical professionals, (2) intentional torts committed by medical
professionals 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, and (5) aggravation of the injury due to
the victim’s negligence in carrying out the treatment of her injuries.

TORTS – DAMAGES – REQUIREMENT THAT MEDICAL BILLS BE FAIR,
REASONABLE, AND NECESSARY

The requirement that medical bills be fair, reasonable, and necessary is an evidentiary
safeguard to ensure that a plaintiff lays a proper foundation to introduce the bills as
evidence of damages. When the issue of subsequent negligent medical treatment is
involved, the “necessary” requirement means “causally related” or “proximately resulted
from” the original injury.

TORTS – SCOPE OF LIABILITY – SUBSEQUENT NEGLIGENT MEDICAL
TREATMENT – BURDENS OF PROOF

A defendant seeking to alleviate its liability based on subsequent negligent medical
treatment has the burden of production on that issue. The ultimate burden of persuasion
on the element of causation remains with the plaintiff.
Circuit Court for Montgomery County
Case No. 475045V

REPORTED

IN THE APPELLATE COURT

OF MARYLAND*

No. 1825

September Term, 2021

______________________________________

TAMI BROWNE

v.

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY

______________________________________

Berger,
Friedman,
Adkins, Sally D.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Adkins, Sally D., J.
______________________________________
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this Filed: July 27, 2023
document is authentic.

2023-07-27 15:09-04:00

Gregory Hilton, Clerk

*At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Special Appeals of Maryland to the
Appellate Court of Maryland. The name change took effect on December 14, 2022.
This appeal requires us to review two interconnected statutes: Md. Code (1995,

2017 Repl. Vol.) § 27-1001 of the Insurance Article (“IN”) and Md. Code (1974, 2020

Repl. Vol.) § 3-1701 of the Courts and Judicial Proceedings Article (“CJP”). In 2007, the

General Assembly enacted the complementary statutes to “creat[e] administrative and

judicial remedies for a first-party insured against a[n] . . . insurer who fails to act in good

faith in denying coverage or declining payment for a covered loss.” Thompson v. State

Farm Mut. Auto. Ins. Co., 196 Md. App. 235, 238 (2010). The crux of this appeal involves

the procedures required for an insured to avail herself of the lack of good faith claim

available against her insurer.

CJP § 3-1701 allows an insured to file a civil action alleging lack of good faith

against the insurer but “not . . . before the date of a final decision under § 27-1001 of the

Insurance Article.” CJP § 3-1701(c). IN § 27-1001 first requires the insured to file a

complaint with the Maryland Insurance Administration (“MIA”), after which the MIA

must issue a decision. IN § 27-1001(d)(1), (e)(1). It then provides two ways for that

decision to become “final.” First, the MIA’s decision becomes final if the party that

receives an adverse decision does not request an administrative hearing within 30 days of

the MIA’s decision. IN § 27-1001(f)(3). Second, if an administrative hearing is requested,

that hearing results in a final decision from the Office of Administrative Hearings

(“OAH”). IN § 27-1001(f)(1)–(2). The statute also allows a party that receives an adverse

decision from either the MIA or the OAH to petition for judicial review of the decision.

IN §§ 27-1001(g); 2-215(d).
The Appellant—Tami Browne—suffered injuries from an automobile accident

where the at-fault driver fled the scene. She filed a claim with her insurer—the Appellee—

State Farm Mutual Automobile Insurance Company (“State Farm”). When the parties were

unable to settle the claim, Browne filed a breach of contract action against State Farm in

the Circuit Court for Montgomery County.

While the breach of contract action was pending, she also filed an administrative

complaint against State Farm for failure to act in good faith under IN § 27-1001 and

CJP § 3-1701. The MIA determined (1) the amount that State Farm owed Browne, which

was under the policy limit, and (2) that State Farm had not failed to act in good faith.

Browne appealed the decision to the OAH, which affirmed the MIA’s decision.

Browne then amended her original breach of contract action in the circuit court to

include the statutory lack of good faith claim under CJP § 3-1701. Following dispositive

motions made by the parties, the circuit court granted summary judgment in favor of State

Farm, ruling that the OAH decision collaterally estopped Browne from litigating the civil

action involving the same issues that were decided in the OAH decision. According to the

circuit court, once Browne received the adverse MIA decision, she had a choice to request

a hearing with the OAH or to file the lack of good faith claim in circuit court. By choosing

to proceed to the OAH, collateral estoppel prohibited her from relitigating her claims in

the CJP § 3-1701 action. Her only choice, said the court, was to petition for judicial review

of the OAH decision. The court then denied Browne’s motion for summary judgment as

moot.

-2-
Browne asks us1 to resolve the following questions, which we have revised for

clarity:

1. Whether the circuit court erred in granting State Farm’s
motion for summary judgment on the basis that the OAH
decision collaterally estopped Browne from litigating her
breach of contract and lack of good faith claims;

2. Whether the circuit court erred in denying Browne’s
motion for summary judgment because State Farm was
liable for any negligent medical treatment she received;
and

3. Whether a lack of good faith claim may be sustained
where an insurer tenders partial payment on a claim.

We conclude that the circuit court erred in ruling that the OAH decision collaterally

estopped Browne from litigating her breach of contract and lack of good faith claims. We

therefore reverse the judgment of the circuit court. We also vacate the circuit court’s denial

1
Browne presented the following questions in her brief:

1. Did the OAH’s decision issued under [IN] Section 27-
1001 have any collateral estoppel effect in Ms. Browne’s
administrative appeal of the same decision, in the Circuit
Court, pursuant to CJP Section 3-1701?

2. Where there is no genuine dispute that Ms. Browne
underwent surgery in an attempt to treat injuries for which her
uninsured motorist carrier is concededly liable, did the trial
court abuse its discretion by not granting her summary
judgment that the carrier is also liable for additional injuries
and damages that the carrier contends were caused by the
surgery?

3. Is a claim for lack of good faith under CJP Section
3-1701 legally precluded whenever the insurer tenders some
amount of payment to its insured?

-3-
of Browne’s motion for summary judgment because of its flawed reasoning that the motion

was moot and offer additional guidance on the issue of an original tortfeasor’s liability for

subsequent negligent medical treatment. We do not offer guidance on the third issue as

this was not addressed by the circuit court. Thus, we remand the case for renewed

consideration of Browne’s motion for summary judgment and for further proceedings

consistent with this opinion.

FACTS & PROCEDURAL HISTORY

Browne’s Accident & Injuries

On May 17, 2018, Browne suffered injuries in an automobile accident as she rode

in the front passenger seat of a vehicle owned and driven by her husband. At the time of

the accident, the vehicle was stopped at a red traffic signal when an unidentified driver

rear-ended the vehicle. The unidentified driver remained on the scene when paramedics

arrived but had fled by the time police responded.

Browne went to the emergency room at Holy Cross Hospital complaining of lower

back and right-side neck pain. She was discharged with pain medication and instructed to

follow up with her primary care physician. She saw her primary care physician on May

24, 2018, and reported low back, hip, and neck pain. The physician prescribed some

medication and referred Browne to physical therapy. Browne underwent three months of

non-surgical treatment but continued to complain of lower back, neck, and hip pain, as well

as other symptoms.

In July 2018, her doctor ordered an MRI which revealed a Tarlov cyst along the

sacral nerve roots, as well as a protruding disc at L4–L5. Browne returned to her primary

-4-
care physician and complained of continued hip pain and leg weakness. She was referred

to a neurosurgeon. She sought treatment from Dr. Robert Rosenbaum, who performed

surgery to remove her Tarlov cyst.

Browne initially reported that some of her symptoms had improved, but she later

experienced worsening pain, ongoing numbness, tingling, and weakness in her legs. After

the surgery, she resumed non-surgical treatments for her pain.

At the time of the accident, State Farm insured the vehicle in which Browne was a

passenger. The policy provided uninsured/underinsured motorist coverage of $50,000 per

person. The policy language read,

We will pay compensatory damages for bodily injury and
property damage an insured is legally entitled to recover
from the owner or driver of an uninsured motor vehicle. The
bodily injury must be sustained by an insured. The bodily
injury and property damage must be caused by an accident
arising out of the ownership, maintenance, or use of an
uninsured motor vehicle as a motor vehicle.

On April 3, 2019, Browne sent a demand letter to State Farm for its policy limit

amount based on $53,566.54 of medical bills associated with the accident. In July, State

Farm initially offered Browne $5,500 to settle her claim and noted that the demand

included no documentation that connected the Tarlov cyst surgery to the accident. Browne

reiterated the original demand for medical expenses and demanded a “reasonable offer”

from State Farm. To connect the Tarlov cyst surgery to the accident, she relied on the

absence of complaints about the Tarlov cyst in her medical records before the accident but

did not otherwise provide documentation connecting the surgery to the accident.

-5-
Initiation of Circuit Court Proceedings

On November 5, 2019, Browne filed suit in the Circuit Court for Montgomery

County for breach of contract, seeking uninsured motorist benefits of $50,000. In her

deposition, Browne said that Dr. Rosenbaum would testify that the accident aggravated her

Tarlov cyst. Rosenbaum confirmed his opinion in his deposition that the trauma from

Browne’s car accident aggravated her Tarlov cyst and necessitated the surgery he

performed.

In preparation for trial, State Farm requested that a neurosurgeon—Dr. Matthew

Ammerman—examine Browne. Based on his examination of Browne and her medical

documents, Dr. Ammerman issued a report on August 25, 2020, which concluded that the

nonoperative treatment for Browne’s injuries—such as physical therapy, lumbar injections,

and acupuncture—were medically necessary and causally related to the accident. But he

concluded that the Tarlov cyst surgery was “in no way related to the accident” and “was

not medically necessary or causally related to the . . . accident.” On October 21, 2020,

State Farm increased its settlement offer to $20,885.30. Ammerman later opined in his

deposition that the Tarlov cyst removal had caused additional symptoms apart from those

related to the accident.

Administrative Proceedings

On March 2, 2021, Browne submitted her administrative lack of good faith

complaint under IN § 27-1001 with the MIA.2 She again sought the $50,000 policy limit,

2
The complaint was received by the MIA on March 3, 2021.

-6-
plus expenses and litigation costs, and submitted medical bills totaling $88,537.09. She

further asserted that State Farm had no reasonable basis to offer less than the $50,000 policy

limit to settle the claim. State Farm responded that Browne’s Tarlov cyst surgery and her

subsequent treatment were not related to the accident and that it had made a reasonable

offer.

The MIA found that Browne was entitled to $27,442.71 for pre-surgery medical

expenses, lost wages, and non-economic damages, plus interest of $2,067.60, totaling

$29,510.31. However, it rejected her claim for surgical expenses and post-surgery injuries

and damages because she had not demonstrated that they were causally related to the

accident. The MIA also found that Browne had failed to meet her burden of showing that

State Farm failed to act in good faith in settling her claim. State Farm paid Browne the

amount of the MIA award, and the parties agreed this would not preclude her from

continuing litigation to seek the full policy amount.

Browne requested a de novo hearing before the OAH, and an administrative law

judge (“ALJ”) conducted a hearing on August 16, 2021. The ALJ considered the

deposition testimony from both Dr. Ammerman and Dr. Rosenbaum3 and reached the same

decision as the MIA. The ALJ “f[ou]nd Dr. Ammerman’s opinion that the accident could

not have caused the cyst to become symptomatic more thorough and more convincing”

3
The MIA did not have Dr. Rosenbaum’s deposition testimony as part of its record, but
the ALJ admitted it at the OAH hearing over State Farm’s objection.

-7-
and awarded Browne the same monetary award the MIA had. The ALJ likewise found that

State Farm had not failed to act in good faith.4

Circuit Court Dismissal

After the OAH hearing, Browne moved to amend her pending breach of contract

claim against State Farm to add the lack of good faith claim. Browne also filed a petition

for judicial review of the OAH decision within 30 days of the decision and moved to

consolidate the two actions. After the circuit court granted the motion to add the lack of

good faith claim to the breach of contract claim, Browne dismissed the petition for judicial

review and withdrew the motion to consolidate.

Browne moved for summary judgment on her breach of contract claim. She argued

that, as a matter of law, the accident was the proximate cause of her post-surgery injuries

and damages. State Farm opposed the motion and filed a cross-motion for summary

judgment. State Farm contended that the OAH decision collaterally estopped Browne from

maintaining her lawsuit in circuit court and that Dr. Rosenbaum’s surgery was a

superseding cause of some of Browne’s injuries.

After a hearing, the circuit court granted State Farm’s cross-motion for summary

judgment, ruling that the OAH decision collaterally estopped Browne from continuing with

4
The OAH decision was followed by a page titled “Review Rights,” which stated that “[a]
party aggrieved by this final decision may file a civil action pursuant to section 3-1701 of
the Courts and Judicial Proceedings Article or may file a petition for judicial review with
. . . the circuit court . . . . Md. Code Ann., Cts. & Jud. Proc. § 3-1701(c) (2020); Md. Code
Ann., Ins. § 27-1001(g) (Supp. 2020).”

-8-
the pending lawsuit. The court denied Brown’s motion for summary judgment as moot.

Brown timely appealed.

STANDARD OF REVIEW

The standard we use to review a circuit court’s grant of summary judgment is well-

established:

With respect to the trial court’s grant of a motion for summary
judgment, the standard of review is de novo. Prior to
determining whether the trial court was legally correct, an
appellate court must first determine whether there is any
genuine dispute of material facts. Any factual dispute is
resolved in favor of the non-moving party. Only when there is
any absence of a genuine dispute of material fact will the
appellate court determine whether the trial court was correct as
a matter of law.

Dashiell v. Meeks, 396 Md. 149, 163 (2006) (internal citations omitted) (emphasis

removed). In addition, “[t]he application of collateral estoppel . . . is a separate legal

question, subject to de novo review.” Garrity v. Md. State Bd. of Plumbing, 221 Md. App.

678, 684 (2015) (emphasis removed). On the flip side, we review a circuit court’s denial

of summary judgment for abuse of discretion. Dashiell, 396 Md. at 165.

COLLATERAL ESTOPPEL

Browne argues that the circuit court was incorrect in ruling that the OAH decision

had any collateral estoppel effect on the circuit court action. She first contends that the

circuit court action was a direct appeal of the OAH decision, rather than an action collateral

-9-
to it.5 Because the legislature authorizes de novo review,6 she maintains, the OAH decision

had no preclusive effect on the circuit court action.7

State Farm disagrees. It maintains that the full evidentiary hearing conducted before

the OAH prohibits Browne from relitigating her claims against State Farm in circuit court.

It characterizes the circuit court action as an independent civil claim, rather than an appeal

of the administrative decision.

The Nature of a CJP § 3-1701 Action

Browne characterizes the circuit court action as a “direct appeal” of the OAH

decision that would be heard de novo while State Farm views it as an independent civil

5
Browne also asserts that the proper doctrine for a direct appeal would be res judicata. We
think the related doctrine of collateral estoppel is a better fit because the circuit court
determined that the OAH decision precluded both Browne’s lack of good faith claim and
her breach of contract claim. While res judicata may have been the proper doctrine to be
applied to the statutory lack of good faith claim, the application of preclusion to another
cause of action implicates collateral estoppel. See Mackall v. Zayre Corp., 293 Md. 221,
228 (1982) (internal citations omitted) (“[I]f a proceeding between parties involves the
same cause of action as a previous proceeding between the same parties, the principle of
res judicata applies and all matters actually litigated or that could have been litigated are
conclusive in the subsequent proceeding. If a proceeding between parties does not involve
the same cause of action as a previous proceeding between the same parties, the principle
of collateral estoppel applies, and only those facts or issues actually litigated in the previous
action are conclusive in the subsequent proceeding.”). Regardless, our analysis of the
preclusive effect of the administrative proceeding remains the same.
6
IN § 27-001(g)(3) states that “[n]otwithstanding any other provision of law, an appeal to
a circuit court under this section shall be heard de novo.”
7
Browne also argued that, as a matter of due process, she was entitled to rely upon the
statement of review rights in the OAH decision which indicated she could either file the
civil action under CJP § 3-1701 or a petition for judicial review with the circuit court. See
supra note 4. Since we determine that the circuit court was incorrect that the OAH decision
collaterally estopped Browne’s circuit court action, we need not address this argument.

-10-
claim. We agree with State Farm’s characterization of the action. We have said that “the

damage remedy/jury trial right authorized by CJP § 3-1701 is independent from a true de

novo review of the MIA administrative determination[.]” Thompson, 196 Md. App. at 247

(emphasis added). We continued, “[A]n insured would not be appealing ‘in accordance

with’ these statutes by praying a jury trial. If a plaintiff under CJP § 3-1701 seeks to present

evidence before a jury, he or she is acting under that specific statute and not under [the

general statutory provisions for judicial review].” Id. We believe this applies equally

where, rather than seeking a jury trial, the insured elects to have the judge serve as the trier

of fact. See CJP § 3-1701(j) (election of jury trial is permissive).

Browne chose to pursue a lack of good faith claim under CJP § 3-1701 by amending

her breach of contract action to include the CJP § 3-1701 claim. She also petitioned for

judicial review but dismissed this after she was allowed to amend her claim. In this appeal,

we are dealing with the lack of good faith claim under CJP § 3-1701.8 State Farm reads

IN § 27-1001 as providing three avenues to an insured after an MIA decision.

Administratively, the insured may (1) request a hearing before the OAH or (2) petition for

judicial review of the MIA’s decision. Civilly, the insured may file a lack of good faith

claim under CJP § 3-1701. What the insured may not do, according to State Farm, is

8
Because we are dealing with Browne’s CJP § 3-1701 claim, we express no opinion on
the permissibility of de novo judicial review of an administrative decision. See IN § 27-
1001(g)(3). As in the Thompson case, “[w]hether de novo judicial review . . . is permitted
under [Department of Natural Resources v.] Linchester Sand and Gravel[] [Corp., 274 Md.
211 (1975)] is not presently before us.” Thompson v. State Farm Mut. Auto. Ins. Co., 196
Md. App. 235, 247 n.14 (2010).

-11-
request a hearing before the OAH and then, after receiving an adverse OAH decision, file

the lack of good faith claim under CJP § 3-1701 in circuit court.

State Farm supposes that Browne was collaterally estopped from maintaining her

circuit court action because the preceding OAH hearing was a quasi-judicial proceeding,

the issues presented before the OAH were the same as those sought to be presented to the

circuit court, and resolution of those issues was necessary for the OAH decision. We are

not persuaded.

Application of Collateral Estoppel Doctrine

By the plain text of IN § 27-1001 and CJP § 3-1701, Browne was entitled to proceed

with her circuit court action after receiving a final decision from the OAH. Before an

insured may bring a CJP § 3-1701 action, she must first receive a final decision under

IN § 27-1001:

(c)(1) Except as provided in paragraph (2)[9] of this subsection,
a party may not file an action under this subtitle before the date
of a final decision under § 27-1001 of the Insurance Article.

CJP § 3-1701(c)(1). A final decision occurs either (1) when the party receiving an adverse

MIA decision does not request an OAH hearing within 30 days or (2) after an OAH hearing

that must result in a final decision. IN § 27-1001(f). CJP § 3-1701(c)(1) does not

distinguish between a final decision by the MIA or by the OAH. Thus, the language of the

statutes clearly allows the insured to pursue a CJP § 3-1701 action after either a final

9
Paragraph (2) lists actions for which an insured is not required to comply with IN § 27-
1001 before bringing a CJP § 3-1701 action—none of which are relevant here.

-12-
decision by the MIA or the OAH. This is supported by the intent of the legislature. As we

said in Thompson, “[o]bviously, the 2007 legislation intended, to the extent constitutionally

permitted, unfettered de novo review.” 196 Md. App. at 246 n.13.

State Farm relies on IN § 27-1001(g) to say that Browne’s only option after

receiving the OAH decision was to petition for judicial review:

(g)(1) If a party receives an adverse decision, the party may
appeal a final decision by the Administration or an
administrative law judge under this section to a circuit court in
accordance with § 2-215 of this article and Title 10, Subtitle 2
of the State Government Article.

The remaining paragraphs under subsection (g) do not mention that an insured may bring

a CJP § 3-1701 action after the OAH hearing. Because the statute explicitly states that

judicial review is available after an OAH hearing but does not state the availability of a

CJP § 3-1701 action, State Farm says, the insured’s only option after the OAH hearing is

the petition for judicial review.

State Farm’s reading of the statute ignores the broader statutory scheme. Although

there is no express mention of an insured’s right to bring a CJP § 3-1701 action after an

OAH hearing, a reading of the statutes in their entirety guides our decision. IN § 27-1001

and CJP § 3-1701 were enacted as part of the same session law and cross-reference each

other. 2007 Laws of Md. ch. 150. Accordingly, although part of different articles, the

statutory sections should be read together. IN § 27-1001 begins by stating that “[t]his

section applies only to actions under § 3-1701 of the Courts Article.” IN § 27-1001(b). As

stated, CJP § 3-1701(c)(1) requires a final decision under IN § 27-1001—regardless of

whether issued by the MIA or the OAH—before the independent civil action is available.

-13-
CJP § 3-1701(c)(1). Thus, although § 27-1001 does not explicitly mention the availability

of a CJP § 3-1701 action following an OAH hearing, any contrary interpretation would

ignore the clear statement in CJP § 3-1701 that it is available after a final decision.

As State Farm argues, the doctrines of collateral estoppel and res judicata ordinarily

apply when there has been a contested case before an administrative agency. In Batson v.

Shiflett, our Supreme Court10 reiterated the test that was “first enunciated in Exxon Corp.

v. Fischer, 807 F. 2d 842, 845–46 (9th Cir. 1987)”:

Whether an administrative agency’s declaration should be
given preclusive effect hinges on three factors: (1) whether the
agency was acting in a judicial capacity; (2) whether the issue
presented to the district court was actually litigated before the
agency; and (3) whether its resolution was necessary to the
agency’s decision.

325 Md. 671, 701 (1992) (cleaned up). Yet, “[c]ollateral estoppel . . . began life and retains

life as a common law doctrine.” Janes v. State, 350 Md. 284, 295 (1998). As such, the

General Assembly is free to alter it. See id. at 303–04.

In Janes v. State, our Supreme Court declined to apply collateral estoppel11 against

the government in a criminal prosecution for driving while intoxicated after the defendant

10
At the November 8, 2022 general election, the voters of Maryland ratified a constitutional
amendment changing the name of the Court of Appeals of Maryland to the Supreme Court
of Maryland. The name change took effect on December 14, 2022.
11
Janes also dealt with the double jeopardy aspect of collateral estoppel when applied to
criminal proceedings. Janes v. State, 350 Md. 284, 298–303 (1998). That issue is not
relevant in this case.

-14-
prevailed in an earlier administrative proceeding involving the suspension of his license on

the same grounds. Id. at 286. The Court explained:

We need not determine here whether common law
collateral estoppel would operate to preclude a criminal
prosecution under [Transportation Article (“TA”)] § 21-902
based on an MVA finding in a [TA] § 16-205.1 proceeding, for
the General Assembly has made clear through the enactment
of [TA] § 16-205.1(l)(1) that criminal proceedings under § 21-
902 and administrative proceedings under § 16-205.1 are
independent of one another and that the findings made in one
do not affect the other. That decision was deliberate and must
be given effect, whatever the common law might otherwise be.

Id. at 303–04. The legislative history of those statutes revealed that the General Assembly

had considered the issues of collateral estoppel and res judicata. Id. at 304–07.

Accordingly, the legislature included an express provision dictating that facts determined

in the administrative proceeding were independent of the facts to be adjudicated in the

criminal proceeding. Id. at 306. Although the text and legislative history of those statutes

was much clearer and more to-the-point than the statutes at hand, we nonetheless consider

the reasoning of Janes applicable.

We have already explained that a circuit court action under CJP § 3-1701 is an

independent action from a petition for judicial review of the administrative decision under

IN § 27-1001. The legislature clearly was concerned that an insured’s subsequent

appearance in circuit court after the administrative proceeding might be barred. The

legislative bill file for the legislation creating the relevant statutes indicates that the

legislature contemplated whether a civil action would be permissible after the

administrative proceeding. The Chairman of the House Judiciary Committee requested

-15-
advice from the Attorney General’s Office on “whether [the provision authorizing a de

novo appeal of an administrative decision] violates Separation of Powers by allowing the

judiciary to usurp the functions of an agency of the Executive Branch.” Letter from Robert

A. Zarnoch, Assistant Attorney General, to the Honorable Joseph F. Vallario, Jr., Chairman

of the House Judiciary Committee, at 1 (Mar. 23, 2007), in Bill Files to H.B. 425 & S.B.

389, 2007 Leg., 423d Sess. (Md. 2007) (emphasis removed). The Attorney General’s

Office responded that the legislation “enhance[d] an insured’s independently-available

civil action against an insure[r] but requires as a precondition to suit, that a complaint be

filed with MIA, where it could be adjudicated via a contested case before the agency. . . .

In my view, the measure . . . allows the parties . . . to pursue their civil action after meeting

an administrative precondition.” Id. at 2.

Other language in the statute points in the same direction. In describing the damages

recoverable under a CJP § 3-1701 action, the final Chapter Law stated that an insured could

recover “expenses and litigation costs incurred by the insured in an action under this

section or under § 27-1001 of the Insurance Article or both[.]” 2007 Md. Laws ch. 150,

CJP § 3-1701(e)(2) (emphasis added). The text also indicates that the legislature expected

an administrative proceeding under IN § 27-1001 to be a prerequisite for a civil action

under CJP § 3-1701. CJP § 3-1701 states that “a party may not file an action under this

subtitle before the date of a final decision under § 27-1001 of the Insurance Article.”

CJP § 3-1701(c)(1). IN § 27-1001 says that “a person may not bring or pursue an action

under § 3-1701 of the Courts Article in a court unless the person complies with this

section.” IN § 27-1001(c)(1). It would be antithetical for the legislature to provide that an

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insured could not bring a civil action under CJP § 3-1701 until after a final decision from

either the MIA or the OAH under IN § 27-1001 if they also intended a final decision by

the OAH to have preclusive effect.

State Farm tries to use legislative documents to argue that a civil action under

CJP § 3-1701 is not available after an OAH hearing. It points to the Revised Fiscal Note

for the legislation which states that the bill “allows any party within 30 days after an

adverse decision from MIA to request a hearing conducted by the [OAH] or to appeal to a

circuit court. A party who receives an adverse decision at an administrative hearing may

appeal to a circuit court.” Dep’t Legis. Servs., Fiscal and Policy Note, S.B. 389, 423d

Sess., at 2 (Md. 2007) (revised Apr. 30, 2007) (emphasis added). State Farm points out

that the Fiscal Note does not mention the availability of a civil action under CJP § 3-1701

after the OAH hearing. To State Farm, the Fiscal Note supports its position that the

CJP § 3-1701 action is only available after the initial MIA decision and not after a hearing

before the OAH.

We do not find State Farm’s argument persuasive. The statutory text itself is not

limited by the language used in the Fiscal Note. The statement in the Fiscal Note on which

State Farm relies in arguing that the CJP § 3-1701 action is only available after the initial

MIA decision—that “[a] party may not file an action under the bill until the date of a final

decision by MIA on the party’s claim”—is based on CJP § 3-1701(c)(1). Id. (emphasis

added). This statutory provision states that “a party may not file an action under this section

before the date of a final decision under [IN § 27-1001].” CJP § 3-1701(c)(1). Thus, the

use of “a final decision by MIA” in the Fiscal Note does not even purport to override the

-17-
language in the statute itself that allows the action to proceed after “a final decision under

[IN § 27-1001].” As we have already explained, that final decision can come from either

the MIA or the OAH.12

In sum, we determine that the legislature did not intend for collateral estoppel to

apply in a CJP § 3-1701 action that follows an OAH hearing. The plain language of the

statutes allows an insured to proceed with the civil action after a final decision without

distinguishing between a final decision made initially by the MIA and one that results from

an OAH hearing. We think the legislature intended to require an insured to exhaust their

administrative remedies before resorting to the civil action in circuit court and that part of

those administrative remedies is the hearing before the OAH that results in a final decision.

Accordingly, a final decision issued after an OAH hearing does not collaterally estop an

insured from proceeding with a CJP § 3-1701 civil action in circuit court.

Nor does it have any collateral estoppel effect on a breach of contract or other civil

action against an insurer. The statute is even clearer on this point. CJP § 3-1701 provides

that it “does not limit the right of any person to maintain a civil action for damages or other

remedies otherwise available under any other provision of law.” CJP § 3-1701(i). Although

12
Likewise, a final decision issued by the OAH is a final decision of the agency itself.
IN § 27-1001(f)(2)(i) dictates that an administrative hearing on a lack of good faith claim
is governed by the Administrative Procedure Act (“APA”) and must result in a final
decision. Under the APA, the OAH has delegated authority to issue “the final
administrative decision of an agency[.]” Md. Code (1984, 2021 Repl. Vol.), State
Gov’t § 10-205(b)(5) (emphasis added). Thus, the final decision issued by the OAH in
lack of good faith claims under IN § 27-1001 is in fact still a final decision of the agency
itself—the MIA.

-18-
IN § 27-1001 does not contain an identical provision, CJP § 3-1701 first requires

compliance with IN § 27-1001. Undoubtedly, the General Assembly determined that

compliance with CJP § 3-1701, including completion of administrative proceedings under

IN § 27-1001, should not foreclose an insured’s other civil actions against the insurer, such

as a breach of contract claim. This intent is likewise revealed in the Fiscal Note to the

original legislation which reiterated that “[t]he bill does not limit the right of any person to

maintain a civil action otherwise available under any other provision of law.” Dep’t Legis.

Servs., supra, at 2.

We hold that Browne’s choice to proceed to an OAH hearing after receiving the

initial MIA decision did not collaterally estop her from pursuing either her original breach

of contract claim or her civil action under CJP § 3-1701. Accordingly, we reverse the

judgment of the circuit court and remand the case for proceedings consistent with this

opinion.

SUBSEQUENT NEGLIGENT MEDICAL TREATMENT

Browne contends that the circuit court abused its discretion in denying her motion

for summary judgment. She argues that State Farm raised no genuine dispute that the

automobile collision was a but-for cause of her injuries, including the surgery, because the

surgery was an attempt to treat her original injuries. She also asserts that, given the

undisputed facts, the collision was a legal, proximate cause of her surgery and post-surgery

injuries.

Browne further avers that State Farm presented no evidence or argument to rebut

these contentions. First, she claims State Farm presented insufficient evidence that Dr.

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Rosenbaum’s surgery was negligent, thus precluding any defense involving superseding

causation. Even if the surgery was negligent, she says, State Farm would continue to be

liable for any subsequent, negligent medical treatment of a tortious injury.

State Farm maintains that the circuit court correctly ruled that Browne was not

entitled to summary judgment. It advances that Dr. Rosenbaum’s surgery was negligent

and thus a superseding cause. State Farm further maintains that Browne’s argument is

based on a misunderstanding of the subsequent negligence doctrine. It asserts that a

tortfeasor is only liable for subsequent injury caused by normal efforts that are reasonably

required to render aid. Relying on Desua v. Yokim, 137 Md. App. 138 (2001), State Farm

insists that the injured person is not entitled to recover for medical treatments that are not

fair, reasonable, and necessary. Thus, it concludes that Browne is not entitled to recover

for her surgical and post-surgical expenses because they were neither medically necessary

nor related to the injuries she sustained in the accident.

Denial of Browne’s Motion for Summary Judgment

After granting State Farm’s motion for summary judgment at the motions hearing,

the court stated, “I’m going to deny the plaintiff’s motion for summary judgment because

I’m not convinced that the plaintiff is entitled to a judgment as a matter of law. I think

granting the defendant’s motion for summary judgment effectively disposes of the case

and doesn’t leave anything else to be tried.” We shall vacate the circuit court’s denial of

Browne’s motion because it relied on its erroneous grant of State Farm’s motion on

collateral estoppel grounds in so ruling. Thus, we shall remand for reconsideration of

Browne’s motion.

-20-
The court “exercise[s] discretion when affirmatively denying a motion for summary

judgment or denying summary judgment in favor of a full hearing on the merits.” Dashiell,

396 Md. at 164. However, the “court must exercise its discretion in accordance with correct

legal standards.” Ehrlich v. Perez, 394 Md. 691, 708 (2006) (quoting LeJeune v. Coin

Acceptors, Inc., 381 Md. 288, 301 (2004)).

“[The] denial of summary judgment . . . . may present any one of three

possibilities[.]” Com. Union Ins. Co. v. Porter Hayden Co., 116 Md. App. 605, 628 (1997).

The first is when there is “a genuine factual dispute that calls for a trial and for fact finding

by judge or jury.” Id. The second is a discretionary option by the judge to allow further

fact finding even when there is no genuine dispute of fact. Id. at 629–30. The third is

where judgment in favor of the other party is justified. Id. at 633–34.

The circuit court apparently relied on the third basis—that judgment was warranted

in State Farm’s favor—in denying Browne’s motion. As discussed above, the court’s grant

of summary judgment in State Farm’s favor was error. Accordingly, we vacate the circuit

court’s denial of Browne’s motion for summary judgment because it relied on its erroneous

grant of summary judgment to State Farm in so ruling and remand the case to the circuit

court to reconsider the motion under correct legal standards.

We offer the following discussion for the circuit court in its reconsideration on

remand. As the uninsured motorist coverage provider, State Farm is liable, up to its policy

limit, for damages for which the uninsured motorist would have been liable. See West Am.

Ins. Co. v. Popa, 108 Md. App. 73, 79 (1996) (“Uninsured motorist coverage is unique

because it predicates indemnification of the insured on a showing of fault by a third-party

-21-
uninsured tortfeasor. The insurer does not pay benefits to the insured unless the uninsured

tortfeasor’s liability has been established.”).

Two doctrines are relevant in determining State Farm’s liability: the subsequent

negligence doctrine, as embodied by § 457 of the Restatement (Second) of Torts, and

Maryland case law requiring that, to be recoverable, medical bills must be fair, reasonable,

and necessary. See Desua v. Yokim, 137 Md. App. 138, 143–45 (2001). This is the first

occasion that a Maryland appellate court has considered the interplay between the two.

Subsequent Negligence Doctrine

The subsequent negligence doctrine extends a tortfeasor’s liability for certain

negligence that occurs after the primary tort. Section 457 of the Restatement (Second) of

Torts (1965) explains the doctrine:

If the negligent actor is liable for another’s bodily injury, he is
also subject to liability for any additional bodily harm resulting
from normal efforts of third persons in rendering aid which the
other’s injury reasonably requires, irrespective of whether such
acts are done in a proper or a negligent manner.

Our Supreme Court has adopted this doctrine and cited § 457 favorably. See Morgan v.

Cohen, 309 Md. 304, 310 (1987) (“It is a general rule that 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.”); Trieschman v. Eaton, 224 Md. 111, 114 (1961) (“[T]he

first tortfeasor is liable for the additional damage added to the original harm by the acts of

a negligent doctor (who, of course, is also liable for the additional damage).”); Underwood-

Gary v. Mathews, 366 Md. 660, 668 (2001).

-22-
Comment a to § 457 explains further that, when a person’s negligent act is the

proximate cause of bodily harm which requires medical intervention, the negligent actor

remains liable for “harm resulting from the manner in which the medical . . . services are

rendered, irrespective of whether they are rendered in a mistaken or negligent manner[.]”

As our Supreme Court explained, “[t]he reasoning behind this rule is that the original

tortfeasor by his actions places the plaintiff in a position of danger and should be held

accountable for the risks inherent in treatment and rendering aid.” Morgan, 309 Md. at

310; accord Underwood-Gary, 366 Md. at 668. “Courts in general have correctly

characterized the negligent treatment as a subsequent tort for which the original tortfeasor

is jointly liable.” Morgan, 309 Md. at 310.

The liability of the original tortfeasor is not unlimited, however. The extent of

liability is constrained by principles of proximate causation. See Stone v. Chi. Title Ins.

Co. of Md., 330 Md. 329, 337 (1993) (“Negligence is not actionable unless it is a proximate

cause of the harm alleged.”); V. Woerner, Annotation, Civil Liability Of One Causing

Personal Injury For Consequences of Negligence, Mistake, or Lack of Skill of Physician

or Surgeon, 100 A.L.R.2d 808 § 2 (originally published in 1965) (“The question whether

a tortfeasor who causes personal injury is civilly liable to the person injured for the

consequences of negligence, mistake, or lack of skill on the part of the physician or surgeon

who treats the original injury is basically a question of proximate cause.”).

Under the Restatement and Maryland law, an “actor’s negligent conduct is a legal

cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm,

and (2) there is no rule of law relieving the actor from liability because of the manner in

-23-
which his negligence has resulted in the harm.” Copsey v. Park, 453 Md. 141, 164–65

(2017) (quoting the Restatement (Second) of Torts § 431). The question in the context of

subsequent negligent medical treatment cases “is whether [the original tortfeasor] should

have foreseen the general harm . . . and not the specific manifestation of that harm[.]”

Yonce v. SmithKline Beecham Clinical Lab’ys, Inc., 111 Md. App. 124, 144 (1996).

When a third party’s negligence is also a substantial factor in bringing about the

injury, the issue of superseding causation arises to determine whether the original tortfeasor

remains liable for all of the harm. Copsey, 453 Md. at 165. “When multiple negligent acts

or omissions are deemed a cause-in-fact of a plaintiff’s injuries, the foreseeability analysis

must involve an inquiry into whether a negligent defendant is relieved from liability by

intervening negligent acts or omissions.” Pittway Corp. v. Collins, 409 Md. 218, 247

(2009). The original tortfeasor remains liable “where the intervening causes . . . were set

in motion by his earlier negligence[] or naturally induced by such wrongful act” or where

the intervening causes could reasonably have been anticipated. Id. at 248 (quoting Penn.

Steel Co. v. Wilkinson, 107 Md. 574, 581 (1908)).

The original tortfeasor is released from liability for all harm “only if the intervening

negligent act or omission at issue is considered a superseding cause of the harm to the

plaintiffs.” Id. The following factors are relevant:

(a) the fact that its intervention brings about harm different in kind
from that which would otherwise have resulted from the actor’s
negligence;

(b) the fact that its operation or the consequence thereof appear
after the event to be extraordinary rather than normal in view
of the circumstances existing at the time of its operation;

-24-
(c) the fact that the intervening force is operating independently of
any situation created by the actor’s negligence, or, on the other
hand, is or is not a normal result of such a situation;

(d) the fact that the operation of the intervening force is due to a
third person’s act or to his failure to act;

(e) the fact that the intervening force is due to an act of a third
person which is wrongful toward the other and as such subjects
the third person to liability to him;

(f) the degree of culpability of a wrongful act of a third person
which sets the intervening force in motion.

Id. at 248 (quoting Restatement (Second) of Torts § 442). An intervening act is generally

considered a superseding cause when it is an “unusual” or “extraordinary” act “that could

not have been anticipated by the original tortfeasors.” Copsey, 453 Md. at 165 (quoting

Pittway, 409 Md. at 249). Said another way, “[a]n intervening force is a superseding cause

if the intervening force was not foreseeable at the time of the primary negligence.” Yonce,

111 Md. App. at 140.

“Even if the intervening force is the negligence of a third party, it does not

necessarily become a superseding cause.” Id. at 148. The subsequent negligence is not a

superseding cause if (1) the original tortfeasor should have realized the third party would

act in such way, (2) “a reasonable man . . . would not regard [the third party’s act] as highly

extraordinary[,]” or (3) “the intervening act is a normal consequence of a situation created

by the [original tortfeasor’s] conduct and the manner in which it is done is not

extraordinarily negligent.” Id. (quoting Restatement (Second) of Torts § 447).

-25-
Section 457 of the Restatement (Second) of Torts provides comments which

embody the principles of proximate and superseding causation. The tortfeasor is liable if

the medical provider’s “mistake or negligence is of the sort which is recognized as one of

the risks which is inherent in the human fallibility of those who render such services.”

Restatement (Second) Torts § 457 cmt. a. Similarly, the tortfeasor is responsible for

“injuries which result from the risk normally recognized as inherent in the necessity of

submitting to . . . treatment.” Cmt. d. Thus, she is not liable for “misconduct which is

extraordinary[.]” Id. Comment e specifies that the negligent actor is not liable if those

providing treatment “inflict injury upon [the victim] which is not intended to aid him” or

if the victim suffers harm while “tak[ing] advantage of his being in the hospital to secure

treatment for” a disease or injury not caused by the actor’s negligence.

The Restatement provides illustrations for clarity. Illustration 1 explains, “A’s

negligence causes B serious harm. B is taken to a hospital. The surgeon improperly

diagnoses his case and performs an unnecessary operation, or, after proper diagnosis,

performs a necessary operation carelessly. A’s negligence is a legal cause of the additional

harm which B sustains.” Illustrations 2 and 3 show that A’s negligence remains a legal

cause of the additional harm even if that harm is caused by other medical professionals or

staff and if the negligence or mistake is not a direct treatment of the original injuries. Illus.

2 (nurse causes burns by placing faulty hot water bottle in B’s bed); illus. 3 (clerical staff

accidentally swaps medical charts resulting in unnecessary surgery of B).

The illustrations also demonstrate examples when the original tortfeasor would not

be responsible for negligent treatment. For example, the tortfeasor would not be

-26-
responsible if a nurse administers a lethal dose of morphine because she cannot tolerate

watching the victim suffer (illustration 4) or intentionally attacks the victim (illustration 5).

Finally, illustration 6 explains that the original tortfeasor (A) would not be liable if, while

in the hospital for a broken leg caused by A’s negligence, the victim (B) learns he is

suffering from an unrelated hernia and “decides to take advantage of his being in the

hospital to have a hernia operation performed,” and the operation causes additional injury.

Our appellate courts have had only a handful of occasions13 to consider the issue of

subsequent medical negligence. In 1915, our Supreme Court acknowledged that the

victim’s own negligence could play a role in the original tortfeasor’s continued liability for

additional harm. In Taxicab Co. of Baltimore City v. Emanuel, it approved a jury

instruction in a case involving an automobile accident resulting in plaintiff’s broken leg.

125 Md. 246, 262 (1915). The trial court had “instructed the jury that if they found that

the plaintiff had suffered additional damage by the breaking of his leg in the hospital after

the collision, and that he might have avoided the second breaking by the use of ordinary

13
Our courts have primarily applied the rule in cases involving the one satisfaction rule.
See Trieschman v. Eaton, 224 Md. 111, 114–20 (1961); Kyte v. McMillion, 256 Md. 85, 99
(1969); Morgan v. Cohen, 309 Md. 304, 320–21 (1987); Underwood-Gary v. Mathews,
366 Md. 660, 667 (2001); Gallagher v. Mercy Med. Ctr., 463 Md. 615, 625–26 (2019).
The one satisfaction rule mandates that “there can be but one satisfaction for the same
injury[.]” Trieschman, 224 Md. at 115. “[T]he satisfaction of the injured person by the
first negligent actor does away with all right of action against the second.” Id.

-27-
care and diligence, then he is not entitled to compensation for such additional damage.”

Id.14

Somewhat peripherally, our Supreme Court considered the issue in the context of

the one satisfaction rule in Kyte v. McMillion, 256 Md. 85 (1969). In that case, after an

automobile accident caused the plaintiff to be hospitalized for months, the hospital

administered the plaintiff the wrong blood protein. Id. at 87–88. Even though the plaintiff

released the hospital for its negligent treatment, the Court allowed her to seek damages

from the original tortfeasor. Id. at 108. In reaching this conclusion, the Court relied, in

part, on a Massachusetts decision which reasoned that, for the original tortfeasor to remain

liable, the subsequent negligence or mistake of treatment providers must “flow legitimately

as a natural and probable consequence of the original injury[.]” Id. at 103 (quoting

Purchase v. Seelye, 121 N.E. 413, 414 (Mass. 1918)).

14
In affirming the validity of that instruction, our Supreme Court relied on the Supreme
Court of Indiana’s decision in City of Goshen v. England, which approved a jury instruction
our Supreme Court characterized as follows:

[T]hat the plaintiff was not entitled to recover for any pain,
anguish, or deformity produced by her negligence in the
treatment of the limb. That if she by her negligence in the
treatment of the limb had increased the pain, suffering and
deformity, she could not recover for such increased pain,
suffering and deformity produced by her own negligence.

Taxicab Co. of Balt. City v. Emanuel, 125 Md. 246, 262–63 (1915) (citing City of Goshen
v. England, 21 N.E. 977 (Ind. 1889)).

-28-
In Copsey v. Park, our Supreme Court considered a case involving multiple

negligent medical providers.15 453 Md. 141 (2017). In that case, it allowed a radiologist

to introduce evidence of subsequent treating doctors’ negligence. Id. at 153–56. In holding

the evidence admissible, the Court explained that the issue of causation was for the jury

and that the admitted evidence “tended to show that [the radiologist] was not negligent and

that if he were negligent, the negligent omissions of the other three subsequent treating

physicians were intervening and superseding causes of the harm to [the deceased].” Id. at

156–57.

The Court explained that the evidence of subsequent negligent treatment “was

relevant to the determination of whether [the radiologist] was negligent, whether he was

the proximate cause of [the deceased’s] death, and whether or not the other doctors were

intervening and superseding causes of [the deceased’s] death.” Id. at 167 n.7. Ultimately,

“the jury was entitled to determine whether it was foreseeable that other doctors would

have negligently treated the patient[.]” Id. at 167. In reaching this conclusion, the Court

said, “Negligence by a subsequent actor breaks the chain of causation when the action by

15
We recognize that Copsey specifically involved negligence in the medical malpractice
context. Our Supreme Court recently stated that “the holdings in Martinez [ex rel. Fielding
v. John Hopkins Hospital, 212 Md. App. 634 (2013)] and Copsey establish the following:
A defendant in a medical malpractice case generally may introduce evidence of a non-
party’s medical negligence to prove that he or she was not negligent, or that his or her
negligence did not cause the plaintiff’s injuries. . . . [or] to prove that the non-party’s acts
or omissions were a superseding cause that cleaved the chain of causation running from
the defendant’s negligence.” Am. Radiology Servs., LLC v. Reiss, 470 Md. 555, 578 (2020)
(emphasis added). We see no need to circumscribe the reasoning of Copsey to medical
malpractice cases and consider it equally applicable here, where the original tort is motor
vehicle negligence.

-29-
the subsequent actor is extraordinary and not reasonably foreseeable.” Id. at 168.

“Liability continues if a defendant ‘could have anticipated the intervening act of negligence

might, in a natural and ordinary sequence, follow the original act of negligence[.]’” Id.

(citation omitted).

From our Supreme Court’s decisions, we gather that Maryland recognizes both the

general rule that a tortfeasor remains liable for subsequent negligent medical treatment and

the rule’s limitations. The mere possibility of subsequent negligent treatment is not

sufficient. The subsequent negligence must be foreseeable, Copsey, 453 Md. at 167–68,

or in other words, be “a natural and probable consequence of the original injury[.]” Kyte,

256 Md. at 103 (quoting Purchase, 121 N.E. at 414). This is consistent with § 457 of the

Restatement, which requires that the subsequent treatment causing injury be one that the

injured person “reasonably requires[.]” In addition, the comments explain that “the

mistake or negligence [of the subsequent treatment must be] of the sort which is recognized

as one of the risks which is inherent in the human fallibility of those who render such

services[,]” § 457 cmt. a., and that the original tortfeasor “is responsible only for such

additional harm, or such aggravation of the original injury as may be due to the efforts

which third persons reasonably make for the purpose of curing” the injured. § 457 cmt. e.

Thus, an original tortfeasor 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.

Comparable to our Supreme Court in Taxicab Co., other courts have recognized that

a victim’s ability to recover from the original tortfeasor may depend on whether they were

-30-
negligent in seeking treatment for their injuries. The “‘general rule’ that, if there was no

negligence in selecting the doctor, the original tortfeasor is responsible for the negligence

of an attending physician in treating the injured party” is well recognized. Lee v. Small,

829 F. Supp. 2d 728, 749 (N.D. Iowa 2011); see also Kan. City S. Ry. Co. v. Justis, 232

F.2d 267, 272 (5th Cir. 1956) (“There was no suggestion that the plaintiff did not exercise

due diligence in the selecting of a doctor, and that is all that is required of an injured

person.”); Tex. & P.R. Co. v. Hill, 237 U.S. 208, 214–15 (1915) (approving instruction

excluding any liability on part of defendant for injury caused by malpractice in treatment

of injuries “if the plaintiff had failed to exercise reasonable care in the selection of a

competent surgeon . . . [or] had in any respect fallen below the standard which reasonable

prudence would have exacted . . . in following his advice”); Anderson & McPadden, Inc.

v. Tunucci, 356 A.2d 873, 879 (Conn. 1975) (“[A]n injured party can recover from the

original tort-feasor for damages caused by the negligence of a doctor in treating the injury

which the tort-feasor caused, provided the injured party used reasonable care in selecting

the doctor.”); Wallace v. Pa. R. Co., 71 A. 1086, 1090 (Pa. 1909) (“[T]hough injury was

caused by unskillful treatment, yet, if the plaintiff exercised ordinary care in the selection

of the surgeon, the defendant, if liable legally for the original injury, would be liable for

the increased injury as well.”).

For example, the U.S. Court of Appeals for the Tenth Circuit reviewed a jury

instruction on the issue of subsequent medical treatment in Jess Edwards, Inc. v. Goergen:

A person causing an actionable injury is liable for the
aggravation thereof by the negligence, if any, of a physician,
surgeon or other medical specialist, if the person who is

-31-
injured, uses reasonable care in the selection of such physician,
surgeon or other medical specialist.

You are further instructed that if an injured person
exercises reasonable care to minimize the danger by selecting
a physician, surgeon or other medical specialist, that person
may recover damages to the full extent of the injury sustained,
even though the physician, surgeon or medical specialist omits
to use the most approved remedy or the best means of cure, or
fails to exercise as high a degree of care or skill as any other
physician, surgeon or other medical specialist might have
exercised.

Any act of negligence on the part of the medical
specialist, physician or surgeon employed by the injured
person, must be of the sort which is recognized as one of the
risks which is inherent in the human fallibility of those who
render such services.

256 F.2d 542, 543 (10th Cir. 1958). The defendant claimed that the district court erred in

failing to rule out its liability for improper medical treatment as unforeseeable. Id. at 543–

44. The Tenth Circuit rejected this argument and found no error in the jury instruction,

adding that

[T]he tort-feasor should have anticipated that his negligence
would result in injuries requiring medical treatment. The tort-
feasor must recognize the ‘risk involved in the human
fallibility of physicians, surgeons, nurses and hospital staffs
which is inherent in the necessity of seeking their services.’

Id. at 544 (quoting the Restatement (First) of Torts § 457 cmt. b (1934)).

It is this concept of foreseeability that justifies the original tortfeasor’s continued

liability. As the United States District Court for the District of Delaware explained,

“[p]usuant to the Restatement, a negligent intervening act of a third party is not a

super[s]eding cause if the intervening act is reasonably foreseeable or a normal response

to the situation created by the actor.” Drummond v. Del. Transit Corp., 365 F. Supp. 2d

-32-
581, 589 (D. Del. 2005) (citing Restatement (First) of Torts § 447 (1934)). Thus, medical

care administered to treat injuries caused by an accident, “whether or not properly

administered,” is ordinarily “reasonably foreseeable.” Id. at 589–90.

In sum, a negligent actor generally continues to be liable for negligent medical

treatment of the injuries the actor caused. The scope of this liability, however, is

constrained by principles of proximate and superseding causation. As the Supreme Court

of New Hampshire aptly explained,

As a general rule if a second injury or an aggravation of
a prior one is considered to be a direct consequence or a natural
result of the original injury, the original wrongdoer is held
liable for the entire damage. Thus the original tortfeasor has
been held liable for an aggravation of the original injury caused
by the medical, surgical or hospital services rendered to the
plaintiff on account of that injury. . . .

On the contrary if a second injury or an aggravation of
a previous injury is attributable to a distinct intervening cause
without which it would not have happened, the wrongdoer is
held to be liable for the original injury only. In other words if
the aggravation of a previous injury is caused by a new and
independent force which breaks the chain of causal connection
with the original wrong and the first tort-feasor is not
responsible for the aggravation.

Armstrong v. Bergeron, 178 A.2d 293, 294 (N.H. 1962) (internal citations omitted).

Little has been written about the requirement that an injured person use reasonable

care in selecting a doctor and carrying out her treatment. Our research has disclosed no

Maryland cases where a defendant sought to relieve itself from liability on the basis that

the plaintiff was negligent in the selection of her doctor or in the carrying out of her

-33-
treatment. Researching out of state cases produces sparse results. See 100 A.L.R.2d 808

§ 3[d] (noting meager cases).

In 1878, the Supreme Court of New Hampshire described “[t]he degree of care and

prudence required to be exercised by the plaintiff in the selection of a physician and

surgeon, and the means used for his recovery and cure from his injuries” as “such care and

prudence as mankind in general exercise[s].” Boynton v. Somersworth, 58 N.H. 321, 322

(1878). The New York Court of Appeals has described the requirement as “ordinary

care[,]” adding that the injured person “is not obliged to employ the most skillful surgeon

that can be found, or resort to the greatest expense to ward off the consequence of an injury

which another has inflicted upon him.” Lyons v. Erie Ry. Co., 57 N.Y. 489, 491 (1874).

Instead, “[h]e is bound to act in good faith and to resort to such means and adopt such

methods reasonably within his reach as will make his damage as small as he can.” Id. And

the Supreme Court of Errors of Connecticut similarly said that “it [is] the duty of the

plaintiff to use ordinary care to cure and restore herself, and reckless or negligent conduct

on her part, if thereby her injuries were enhanced, cannot be charged to the defendant.”

Flint v. Conn. Hassam Paving Co., 103 A. 840, 840 (Conn. 1918); accord City of Crete v.

Childs, 9 N.W. 55, 56 (Neb. 1881) (“[I]t was unquestionably [plaintiff’s] duty to exercise

reasonable care and diligence in the employment of medical aid[.]”); Smith v. Mo., K. & T.

Ry. Co., 185 P. 70, 73–74 (Ok. 1918), on reh’g (Nov. 18, 1919) (plaintiff not responsible

for substandard medical treatment where doctors were regularly licensed, well-known and

reputable, and plaintiff acted with good faith and due care in seeking their treatment).

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The Supreme Court of California considered a defendant’s argument on appeal that

it should have been allowed to present evidence that the plaintiff received improper medical

care. Boa v. S.F.-Oakland Terminal Rys., 187 P. 2, 6 (Cal. 1920). The court said this

evidence would be admissible “only in [the] event there was evidence in the case from

which the jury might reasonably have found that the plaintiff was negligent in her choice

of a physician.” Id. The plaintiff in the case was in an unfamiliar location and asked her

one acquaintance if she knew anything about her treating physician. Id. The acquaintance

indicated that she thought the doctor was “all right.” Id.

The court affirmed the exclusion of the evidence. Id. at 6–7. It concluded that “the

defendant failed to lay a sufficient foundation for the reception of evidence of improper

treatment” because there was “no evidence tending to show that any information of this

physician’s lack of skill was brought to the knowledge of plaintiff prior to the employment

or that she continued with him after being informed of any lack of skill or failure to give

proper treatment.” Id.

Based on the Restatement provisions and case law described above, examples of

injuries beyond the scope of liability include (1) extraordinary misconduct by medical

professionals, (2) intentional torts committed by medical professionals 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, and (5) aggravation of the injury due to the victim’s negligence in carrying out

the treatment of her injuries.

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“[W]hen the facts are undisputed, and are susceptible of but one inference,” the issue

of proximate cause “is one of law for the court[.]” Lashley v. Dawson, 162 Md. 549, 563

(1932). Otherwise, the question is for the jury. Id. at 562–63. The same is true for

determining whether an act is a superseding cause. Copsey, 453 Md. at 166. On remand,

the circuit court will again have an opportunity to rule on Browne’s motion for summary

judgment. Guided by the foregoing discussion, the court should consider if the facts are

appropriate to rule as a matter of law or if the issue must be sent to the trier of fact.

Requirement that Medical Bills be Fair, Reasonable, and Necessary

Although State Farm recognizes that Maryland has adopted § 457 of the

Restatement (Second) of Torts, it relies on Desua v. Yokim, 137 Md. App. 138 (2001) for

the proposition that “[u]nder Maryland law, an injured party is only entitled to recover for

medical treatment that is fair, reasonable, and necessary.” We explain below why its

interpretation of Desua infringes on the legitimate scope of the subsequent negligence

doctrine.

State Farm correctly notes that Maryland courts have not discussed the interplay of

§ 457 of the Restatement just discussed and the rule requiring that medical bills be fair,

reasonable, and necessary. Nor have our courts elaborated on the specifics of the fair,

reasonable, and necessary requirement generally.

In Desua v. Yokim, this Court reiterated the principle that “[i]n order for the amount

paid or incurred for medical care to be admissible as evidence of special damages, there

ordinarily must be evidence that the amounts are fair and reasonable.” 137 Md. App. at

143 (quoting Shpigel v. White, 357 Md. 117, 128 (1999)) (emphasis added). We then added

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that a plaintiff is “also required to prove that her medical treatments were ‘necessary.’” Id.

at 144 (quoting Metro. Auto Sales v. Koneski, 252 Md. 145, 154 (1969)). In sum, Desua

synthesized the rule that there must be evidence that medical bills are fair, reasonable, and

necessary, for the bills to be admissible as evidence of damages.16

Desua involved an automobile accident. Id. at 139. The plaintiff sought damages

for soft tissue injury of the neck but did not intend to call an expert witness at trial. Id. at

139–40. Instead, she planned to introduce her medical bills through billing managers of

her providers. Id. at 142. The trial court entered summary judgment in favor of the

defendant, concluding that the plaintiff “needed an expert witness to introduce her medical

bills into evidence[.]” Id. at 143.

We affirmed. Id. at 141. We explained that, although billing managers can testify

about the reasonableness of medical bills, they are not competent to establish the necessity

of medical bills because the billing manager cannot properly “explain why the patient’s

physician chose a particular type of treatment.” Id. at 144. “Thus, where the issue of

necessity is raised, the plaintiff cannot introduce medical bills through a billing manager.”

Id. (footnote omitted). We did not explain, however, what exactly the term “necessary”

entailed.

Desua relied on three cases in synthesizing the rule that medical bills be fair,

reasonable, and necessary: Shpigel v. White, 357 Md. 117 (1999), Kujawa v. Baltimore

16
Because Desua synthesized the rule that medical bills be fair, reasonable, and necessary,
we will sometimes refer to this requirement in our discussion as the Desua rule.

-37-
Transit Co., 224 Md. 195 (1961), and Metropolitan Auto Sales Corp. v. Koneski, 252 Md.

145 (1969). Shpigel focused on the reasonableness requirement of the rule. That case

involved a motor vehicle tort in which plaintiffs had attempted “to prove causation and

damages through medical records and bills without live witness sponsorship or

amplification.” Shpigel, 357 Md. at 120. The records and bills were accompanied by

affidavits from custodians for the medical providers that the “bills were fair and reasonable

and that the services were incurred as a direct result of the automobile accident[.]” Id. at

124. The Court deemed the affidavits insufficient to satisfy the reasonableness

requirement, stating that “the fact to be proved is the reasonableness of the bill, but the

witness to that fact is not present and subject to cross-examination.” Id. at 129. Thus,

exclusion of the bills was proper because plaintiff did not put on testimony from a qualified

witness that the charges were reasonable. Id.

Kujawa likewise involved the amount of medical bills. 224 Md. at 208. Plaintiffs

in that case claimed damages for personal injuries, including hospital and medical

expenses, arising from a motor vehicle collision. Id. at 200. One of the plaintiffs testified

about receiving medical treatments from multiple doctors, after which “the doctors’

unauthenticated bills were proffered as evidence.” Id. at 208. Two of the doctors were

present at the trial, but the remaining “were not present to verify the reasonableness of their

charges[.]” Id. The Court determined that it was proper to exclude the medical bills from

doctors who were not present because the plaintiffs did not put on evidence that the charges

were reasonable. Id. The medical bills alone, and the fact they were paid, did “not establish

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the reasonable value of the services for which the bills were rendered or justify recovery

therefor.” Id.

Desua cited Metropolitan Auto Sales for the proposition that the plaintiff was

“required to prove that her medical treatments were ‘necessary.’” Desua, 137 Md. App. at

144 (quoting Metro. Auto Sales Corp., 252 Md. at 154). Metropolitan Auto Sales involved,

in part, damages arising from an automobile collision. 252 Md. at 154. Regarding a

plaintiff’s medical bill, the Court explained:

The bill for [plaintiff’s] 12 day sojourn in the
Montgomery General Hospital totaled $336.35. There was no
showing that her hospitalization was necessary or that the
charge was reasonable, other than later testimony that a charge
of $337.21 for 6 days (in 1967) in Holy Cross Hospital was fair
and reasonable. No details of this stay are in the record.

* * *

While the admission of the bill was clearly improper we
do not think the error justifies reversal. However, we shall
require the judgment in favor of [plaintiff] to be reduced by
$336.35.

Id. (emphasis added). The Court did not cite precedent when stating that there was no

showing plaintiff’s hospitalization was necessary nor did it explain what it meant by the

term “necessary.”

This Desua rule is best understood as a threshold evidentiary inquiry. 137 Md. App.

at 145 (describing the issue of necessity as an “essential foundational requirement”).

Where damages arising from medical treatment are at issue, it is appropriate to prove them

by introducing medical bills. A plaintiff, however, must properly lay the foundation for

their introduction. “Expert testimony is part of the necessary foundation for the

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introduction of medical bills.” Joseph F. Murphy, Jr. & Erin C. Murphy, Maryland

Evidence Handbook (5th ed.) § 1401, at 689. Thus, the Desua rule that medical bills be

fair, reasonable, and necessary is the threshold requirement before a plaintiff may present

evidence of such bills to the trier of fact.

The question before us in this case is different. It does not involve the mere absence

of an evidentiary foundational witness. Rather, we address the more substantive issue of

what the “necessary” requirement means in allocating liability to an original tortfeasor

when subsequent medical treatment is provided negligently. Because the Maryland

appellate courts have not elaborated on the requirement of necessity—in general or in the

case of negligent medical treatment—we look to other jurisdictions.

The Supreme Court of Appeals of West Virginia discussed the reasonable and

necessary requirement in Landau v. Farr, 140 S.E. 141, 142 (W. Va. 1927). There, the

plaintiff challenged the sufficiency of the damages she was awarded in an elevator

accident, claiming that her medical expenses exceeded the award. Id. The court described

“[t]he evidence [as] show[ing] that during plaintiff’s sickness and convalescence she had

been attended by five different physicians and about the same number of nurses.” Id. The

court continued,

She offered no testimony to prove the necessity of so much
professional service, or that the charges therefor were
reasonable. One of the physicians who treated her . . . . testified
that one competent physician would have been sufficient for
her case, and that, while the several nurses were a comfort to
the plaintiff, “good general care, such as was ordinarily taken
of a patient at the hospital, was all that was necessary in her
case.”
Id.

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In finding no error with the jury’s damages award, the court recounted the general

principles of recovery for medical bills:

To constitute a recoverable element of damages, the expense
must have been necessary and reasonable. The burden of
proving this is on the plaintiff. The measure of the recovery
under this head is not necessarily the amount paid for medical
attendance. The reasonableness of the charges must be
established. The reasonable charges intended are the
reasonable charges of the profession generally, and not the
usual charges of the particular physician or surgeon.

Id. (internal citations and quotation marks omitted). Applying these principles, the court

said “the jury had the right to reject the payments and obligations incurred” by plaintiff

either because they were not “reasonably necessary” or because “the charges for the extra

treatment were not shown to be reasonable.” Id.

The California Court of Appeal (then the District Court of Appeal) held similarly in

Graf v. Marvin Engh Truck Co., 24 Cal. Rptr. 511 (Cal. Dist. Ct. App. 1962). The court

considered a plaintiff’s claim that a jury’s “award [was] grossly less than those damages

which [were] incontestably the result of the accident[.]” Id. at 513. The plaintiff suffered

injury in a three-car collision and submitted medical and hospital bills to prove damages,

the totals of which doctors testified were reasonable and necessary. Id. at 511–13. Plaintiff

specifically claimed “that the uncontested doctors and hospital bills exceeded the amount

of the award[.]” Id. at 513. After noting that “[t]he question as to the amount of damages

is a question of fact[,]” the court explained that “[i]t is not always necessary that the amount

of the award equal the alleged medical expenses[.]” Id. at 513–14 (citation omitted). This

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is because the medical services received by a plaintiff must be necessary and attributable

to the accident, and their charges reasonable. Id. at 514.

The California court noted the conflicting evidence the jury considered, including

that a doctor “clearly indicated that he believed plaintiff was feigning in respect to some of

his complaints.” Id. Specifically, the doctor testified “that there was no evidence of pain

when the patient was distracted, but when the patient was aware that a range of motion was

being elicited he complained of pain[.]” Id. Thus, it appears the jury was not persuaded

that the medical charges were entirely attributable to the accident or that all of plaintiff’s

claimed suffering was real. Id. The appellate court deemed that the jury did not act

arbitrarily in its damages award. Id. at 514–15.

From these cases, we gather several insights into the necessity requirement

generally. First, the plaintiff must lay the proper foundation to introduce medical bills as

evidence of damages. To do so, the plaintiff must put on expert testimony opining as to

the bills’ fairness, reasonableness, and necessity. This witness must be competent to testify

about the necessity of the chosen treatments. In Maryland, this must be a medical

professional intimately associated with the treatments. Compare Thomas v. Owens, 28 Md.

App. 442, 444–45 (1975) (physician qualified to testify about reasonableness of charge),

with Desua, 137 Md. App. at 144–45 (billing manager not competent to testify about

necessity).

Second, once admitted, the necessity of medical treatments is a question of fact for

a jury to decide, if empaneled, and the jury may decrease its award if it determines certain

expenses were not necessary or their charges not fair and reasonable. See Graf, 24 Cal.

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Rptr. at 513–14. Such decrease may occur when a plaintiff is “feigning” injury, see id. at

514, a medical provider intentionally “inflict[s] injury on [the plaintiff] by an act which is

not intended to aid him[,]” Restatement (Second) of Torts § 457 cmt. e, or the plaintiff

knowingly elects to treat an ailment entirely unrelated to the original tort, id., or

overconsumes medical treatments beyond what is required by the injury, see Landau, 140

S.E. at 142. On this last point we note that disqualifying the bills from a damages

calculation requires some element of knowledge, intention, or bad faith on the part of the

plaintiff. See Venissat v. St. Paul Fire & Marine Ins. Co., 968 So. 2d 1063, 1073 (La. Ct.

App. 2007), amended on reh’g (Nov. 7, 2007) (“[A] tortfeasor must pay for medical

treatment of his victim, even over treatment or unnecessary treatment, unless such

treatment was incurred in bad faith.”).

The “Necessary” Requirement & Negligent Medical Treatment

The “necessary” requirement takes on a different shape when the issue involves

liability of the original tortfeasor for damages caused by a later tort committed by the

physician treating the plaintiff. The comments to the Restatement make clear that § 457

applies in cases of negligent medical treatment, including negligent misdiagnosis.

Restatement § 457 cmts. a & c, illus. 1. As State Farm noted, Maryland courts have not

discussed the interplay between § 457 of the Restatement and the Desua rule. We take the

opportunity to explain the interplay here.

The Supreme Court of Indiana considered whether a tortfeasor was liable for

medical bills relating to treatments the tortfeasor deemed unnecessary in Sibbing v. Cave,

922 N.E.2d 594, 599–600 (Ind. 2010). Following a car accident, the plaintiff sued

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defendant for damages that included medical expenses. Id. at 596–97. These medical

expenses included a nerve conduction study and “passive care” treatment. Id. at 599–600.

The trial court excluded parts of defendant’s expert’s deposition contesting the medical

necessity of those treatments. Id. The appellate court explained that “[f]or over a century,

some Indiana appellate opinions have recited that to recover damages for medical expenses

such expenses must be ‘reasonable and necessary.’” Id. at 600 (citations omitted). It went

on to clarify, however, that “[w]hen this phrase has appeared, the issue usually addressed

is the reasonableness of medical expenses, not the necessity of the medical treatment.” Id.

As illustration, the court described the evolution of the “reasonable and necessary”

rule in Indiana:

As authority for the “reasonable and necessary”
requirement, Stanley [v. Walker, 906 N.E.2d 852 (Ind. 2009)]
rests upon Cook [v. Whitsell-Sherman, 796 N.E.2d 271 (Ind.
2003)], Cook rests upon Smith [v. Syd’s, Inc., 598 N.E.2d 1065
(Ind. 1992), and Smith cites to Hickey [v. Shoemaker, 167
N.E.2d 487 (Ind. App. 1960)] and [City of ] Bedford [v. Woody,
55 N.E. 499 (Ind. App. 1899)] as its authority. While both
Hickey and Bedford use the phrase reasonable and necessary,”
neither case addresses the “necessary” component. In Hickey,
the issue addressed was whether the defendant could be liable
for the wife’s medical bills, then the debt of her husband. The
issue in Bedford was the need to prove “reasonable value” of
unpaid medical services.

Id. at 601 (footnote omitted).

When the cases have involved the “necessary” aspect, the Indiana court explained,

they have done so “without detailed discussion.” Id. Nevertheless, the court continued, “it

is apparent that the shorthand phrase ‘reasonable and necessary’ embodies two aspects.

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First, the claimed amount of medical damages must be reasonable. Second, the nature and

extent of the claimed medical treatment must be necessary.” Id. at 602.

The high court explained the limits of a defendant’s right to contest the plaintiff’s

doctor’s diagnosis and treatment:

[A]n injured party may recover for injuries caused by the
original tort-feasor’s negligent conduct and for any
aggravation of those injuries caused by a physician’s improper
diagnosis and unnecessary treatment or proper diagnosis and
negligent treatment. In order to recover under this rule, the
plaintiff need only show he exercised reasonable care in
choosing the physician.

Id. (quoting Whitaker v. Kruse, 495 N.E.2d 223, 226 (Ind. Ct. App. 1986)) (emphasis

added). This is so because “the tort-feasor created the necessity for medical care in the

first instance. So long as the individual seeking medical care makes a reasonable choice

of physicians, he is entitled to recover for all damages resulting from any aggravation of

his original injury caused by a physician’s misdiagnosis or mistreatment.” Id. (quoting

Whitaker, 495 N.E.2d at 225–26). A contrary “rule would place the injured party ‘in the

unenviable position of second-guessing his physicians in order to determine whether the

doctor properly diagnosed the injury and chose the correct treatment.’” Id. at 603 (quoting

Whitaker, 495 N.E.2d at 226).

The Indiana Supreme Court cautioned, however, that a plaintiff is not allowed “to

recover for medical treatment wholly unrelated to a defendant’s wrongful conduct.” Id. A

defendant’s liability is still constrained by the principles of causation and the requirement

that the amount of medical expenses be reasonable. Id. Thus, the court “h[e]ld that the

phrase ‘reasonable and necessary,’ as a qualification for the damages recoverable by an

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injured party, means (1) that the amount of medical expenses claimed must be reasonable[]

[and] (2) that the nature and extent of the treatment claimed must be necessary in the sense

that it proximately resulted from the wrongful conduct of another[.]” Id. at 604.

Like the cases in Indiana, our cases involving the rule that medical expenses be fair,

reasonable, and necessary have primarily involved the reasonableness of the dollar amount

of charges. Desua cited Shpigel, Kujawa, and Metropolitan Auto Sales.17 Shpigel and

Kujawa both involved the reasonableness of medical bills. Shpigel, 357 Md. at 128–29;

Kujawa, 224 Md. at 208. Metropolitan Auto Sales involved necessity but concluded the

issue without much discussion. 252 Md. at 154. In reducing a damages award, our

Supreme Court said only that there had been “no showing that [plaintiff’s] hospitalization

was necessary or that the charge was reasonable[.]” Id. The Court cited Kujawa to support

its reduction on this basis, id., which, as we have said, involved reasonableness of the dollar

amount of medical bills and not the necessity of treatments provided. While Desua

involved the issue of necessity, it did not address whether medical bills involved necessary

treatments. Instead, it addressed who was competent to testify about the necessity of those

treatments, concluding that medical bills could not be introduced through a billing manager

where the issue of necessity has been raised. 137 Md. App. at 144–45.

17
Desua also cited to Thomas v. Owens, 28 Md. App. 442 (1975), and Simco Sales Service
of Md., Inc. v. Schweigman, 237 Md. 180 (1964). 137 Md. App. at 144. Both Thomas and
Simco involved the type of witness who was qualified to testify about the reasonableness
of the price of medical bills. Thomas, 28 Md. App. at 444–45 (doctor testified that hospital
charge was reasonable); Simco, 237 Md. at 188–89 (hospital’s director of accounts testified
that charges were fair, reasonable, and customary for services rendered). Neither involved
the issue of necessity.

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Maryland cases since then have likewise focused on the reasonableness in amount

of medical bills. See Westfield Ins. Co. v. Gilliam, 477 Md. 346, 353 (2022) (reciting the

rule that “[t]he tortfeasor remains responsible for paying the victim the ‘fair and

reasonable’ value of the health care services that the victim needed as a result of the tort”

in an action involving uninsured motorist and workers compensation benefits); Brethren

Mut. Ins. Co. v. Suchoza, 212 Md. App. 43, 57 (2013) (trial court properly excluded

evidence of payment of medical bills where appellant presented no expert or other

competent evidence to show fairness and reasonableness of the payments); Lamalfa v.

Hearn, 457 Md. 350, 391 n.8 (2018) (“When medical bills are introduced into evidence to

support a plaintiff’s claim for damages, the trial court necessarily makes a finding, either

implicitly or explicitly, that the medical bills reflect amounts that are fair and reasonable.”).

The Supreme Court of Arkansas considered an issue more analogous to the present

case in Ponder v. Cartmell, 784 S.W.2d 758 (Ark. 1990). The plaintiff in that case was

injured in a bus accident and sued the driver and bus owner. Id. at 759. At trial, the

plaintiff’s doctor testified that she “had a degenerative disc disease in her neck which was

aggravated by the accident.” Id. at 760. The doctor testified that the surgical procedures

he performed “were necessitated by the injury [plaintiff] received in the accident.” Id. The

defendants presented expert testimony refuting plaintiff’s doctor’s diagnosis and his

opinion that the accident aggravated the plaintiff’s degenerative disc disease. Id. This

testimony, the court said, was proper because “a defendant’s medical expert may testify

that the physical injuries for which the plaintiff seeks compensation were not caused by the

accident.” Id.

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The defendants’ expert also testified that the plaintiff’s doctor “misdiagnosed the

[plaintiff’s] symptoms and that this misdiagnosis led to unnecessary surgery.” Id. The

court concluded that this testimony should not have been admitted, explaining that the

plaintiff’s “recovery should not be diminished because [her doctor’s] misdiagnosis, if

indeed that was the case, led to the use of extreme medical procedures.” Id. “This [would]

violate[] the principle that, so long as an individual has used reasonable care in selecting a

physician, she is entitled to recover from the wrongdoer to the full extent of her injury,

even though the physician fails to use the remedy or method most approved in similar cases

or adopt the best means of cure.” Id. at 761.

Most interesting for our present appeal is the court’s focus on the “reasonable and

necessary” requirement when the original tortious injury is followed by negligent medical

treatment. Id. The court explained that the term “‘[n]ecessary’ means causally related to

the tortfeasor’s negligence.” Id. “If a plaintiff proves that her need to seek medical care

was precipitated by the tortfeasor’s negligence, then the expenses for the care she receives,

whether or not the care is medically necessary, are recoverable.” Id.

The Colorado Court of Appeal is in accord. Danko v. Conyers, 432 P.3d 958 (Colo.

App. 2018). In Danko, the defendant sought to introduce evidence that a subsequent

amputation performed on the plaintiff was “unnecessary.” Id. at 961. The trial court

excluded such evidence. Id. Relying on § 457 of the Restatement, which absolves an

original tortfeasor of liability for subsequent treatment that is “extraordinary misconduct,”

id. at 965, the appellate court reasoned that “an ‘unnecessary’ amputation does not equate

to extraordinary misconduct.” Id. at 966. The Restatement itself contemplates continued

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liability for an unnecessary operation performed as a result of a misdiagnosis. Id. (citing

Restatement § 457 cmt. c., illus. 1). Indeed, the kind of amputation “was a foreseeable

risk” and thus not an intervening cause. Id. Accordingly, the fact that an operation is

colloquially “unnecessary” does not necessarily relieve the original tortfeasor of continued

liability.

We are persuaded by the reasoning in the above cases, which are consistent with

Maryland law and the Restatement (Second) of Torts § 457. In this context, when a

plaintiff seeks medical treatment for injuries caused by an original tortfeasor, and that

medical provider is allegedly negligent, the analysis of the Desua requirement that medical

bills be fair, reasonable, and necessary shifts to fit the circumstances. Here, “necessary”

means “causally related,” Ponder, 784 S.W.2d at 761, or “proximately resulted from,”

Sibbing, 922 N.E.2d at 604, the original tort.

The necessary requirement is still an important evidentiary safeguard to ensure that

the evidence considered by the jury does not inflate the damages calculation; the bills must

still be fair and reasonable. However, a defendant may not challenge the necessity of

treatments solely on the basis that the treatment was performed because of a negligent

misdiagnosis—i.e., that the treatment was “unnecessary.”

Guidance on Remand: Who Has the Burden to Prove What?

We have discussed Copsey v. Park, 453 Md. 141 (2017), above for its discussion of

subsequent medical negligence as a potentially superseding cause. That case, and our

Supreme Court’s subsequent decision in American Radiology Services, LLC v. Reiss, 470

Md. 555 (2020), also lend guidance on the required burdens of pleading and production

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when a defendant seeks to alleviate its liability based on subsequent negligent medical

treatment.

In Copsey, a widow and minor surviving children sued on behalf of themselves and

the decedent’s estate, alleging that a radiologist negligently interpreted the decedent’s

radiological images, causing his death. Id. at 147. Before trial, the plaintiffs moved to

prevent the radiologist from “raising the defense that the negligence of subsequent treating

physicians was an intervening and superseding cause of [the decedent’s] death.” Id. at

147–48. As previously mentioned, our Supreme Court affirmed the denial of this motion

and held that “a defendant generally denying liability may present evidence of a non-

party’s negligence and causation as an affirmative defense.” Id. at 156 (emphasis added).

Thus, “[i]t was not error [for the trial court] to admit evidence of the negligence of the non-

party subsequent treating physicians.” Id.

We take the Court’s qualifier “generally denying liability” to mean that the defense

is available at trial when the defendant, in the answer to the complaint, asserts a general

denial of liability in its assertion of defenses. Application of the defense, however, was

limited by the Court’s subsequent decision in American Radiology Services.

In American Radiology Services, the Court considered whether expert testimony

was required to establish the medical negligence of a subsequent treating physician where

the defendants raised it as a defense. 470 Md. at 561–62 . The Court concluded, “To the

extent that a defendant elects to raise non-party medical negligence as part of its defense,

the defendant has the burden to produce admissible evidence to allow a jury to make a

finding on that issue.” Id. at 562. In the trial court, the defendants had raised and argued

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the issue of subsequent medical negligence and the issue was submitted to the jury. Id.

This was error because, without the requisite expert medical testimony, “the record was

devoid of admissible evidence sufficient to generate a triable issue of non-party physician

negligence.” Id.

The defendants in American Radiology Services attempted to distinguish between

raising non-party negligence as an affirmative defense and raising it as an alternative theory

of causation. Id. at 578. According to the defendants, “the burden of persuasion never

shifted to [them] to require proof of an affirmative defense. Because they had no burden

of persuasion, [the defendants] posit[ed] that they were not required to provide standard of

care evidence of non-party negligence.” Id. The Court rejected this distinction. Id. at 578–

79. It explained that “[t]he necessity of expert testimony to establish medical negligence

and causation is rooted in the evidentiary requirement that such issues are beyond the

general knowledge and comprehension of layperson jurors.” Id. at 583.

From Copsey and American Radiology Services, we glean that both the burden of

pleading and the burden of production are on the defendant when the defendant asserts that

subsequent negligent medical treatment was a superseding cause of a plaintiff’s injuries.

That is, the defendant must sufficiently raise the issue in its pleadings before trial. This is

satisfied, though, with a general denial of liability in the defendant’s answer to plaintiff’s

complaint. See Copsey, 453 Md. at 174; Am. Radiology Servs., 470 Md. at 582.

The defendant must also produce admissible evidence from which a jury could

decide that a subsequent medical provider’s negligence was so extraordinary or unusual

that it constituted a superseding cause and alleviated the defendant’s liability. See Copsey,

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453 Md. at 165; Pittway, 409 Md. at 249. As our Supreme Court in American Radiology

Services did, we likewise find the Honorable Joseph F. Murphy, Jr.’s depiction helpful:

Someone must put the ball into play. Generating an issue
involves production of evidence sufficient to require that the
factfinder resolve a contested issue. In order to get a jury
instruction you must produce evidence that supports it. The
jury is not permitted to find that a particular fact exists unless
there is an evidentiary basis for this conclusion.

470 Md. at 583 (quoting Maryland Evidence Handbook, § 403, at 132). In that case, the

Court concluded that the defendants raising the issue of non-party negligence “were

required to produce and generate sufficient admissible evidence to enable the jury to make

a factual finding that non-party physician negligence, in fact, existed[.]” Id. The Court

clarified that this requirement related to the defendant’s burden of production and did not

implicate the ultimate burden of persuasion. Id. Finally, the Court explained that this

burden of production requires expert testimony “unless the non-party’s medical negligence

is so obvious that ordinary laypersons can determine that it was a breach of the standard of

care.” Id. at 584.18

The above-cited Colorado case, Danko v. Conyers, 432 P.3d 958 (Colo. App. 2018),

similarly allocated the burden of production on the defendant. The court discussed the

18
Our Supreme Court clarified that the defendant need not put on their own expert but must
put forth their own evidence: “We are not holding or requiring that the defendant must call
his or her own expert to generate the issue to prove that a non-party physician or ‘the empty
chair’ was the negligent person. Consistent with our jurisprudence on the issue, assuming
discovery rules are satisfied, the defendant may elicit expert standard of care testimony
through cross-examination of plaintiff’s expert, or may call an expert of his or her own, but
the defendant is not required to call an expert of his or her own.” Am. Radiology Servs.,
470 Md. at 584 (footnote omitted).

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exception to the Restatement provision relieving an original tortfeasor from liability from

extraordinary misconduct in subsequent treatment. Id. at 965. The trial court had excluded

evidence of other medical providers’ negligence in treating the plaintiff. Id. at 962. The

appellate court held that it was within the trial court’s discretion to do so. Id. at 966. It

explained that the defendant “did not present any expert testimony that the amputation

constituted extraordinary misconduct, much less gross negligence.” Id. at 966. Instead,

the defendant’s experts identified “substandard medical care” as leading to the plaintiff’s

additional injury. Id. Because the defendant offered insufficient evidence that subsequent

treatment was a superseding cause, the trial court properly exercised its discretion in

excluding the evidence. Id.

In the above discussion, we identified five instances where injury caused by

subsequent negligent treatment could be beyond the scope of the original tortfeasor’s

liability: (1) extraordinary misconduct by medical professionals, (2) intentional torts

committed by medical professionals 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, and (5) aggravation of the

injury due to the victim’s negligence in carrying out the treatment of her injuries.

As Copsey and American Radiology Services demonstrate, it is fitting to allocate the

burden of production on the party seeking to alleviate its liability through any of these

assertions. Each of these assertions tends to “negate[] [an] essential element[] of a

plaintiff’s case”— causation—“and may thereby defeat recovery.” See Ellsworth v. Sherne

Lingerie, Inc., 303 Md. 581, 597 (1985) (characterizing misuse of a product as a “defense”

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tending to negate defectiveness and causation in the strict liability context). Accordingly,

the defendant must produce admissible evidence in support of any of the five assertions

tending to negate the element of causation while the ultimate burden of persuasion on that

element remains with the plaintiff. See Armstrong v. Johnson Motor Lines, Inc., 12 Md.

App. 492, 500 (1971) (“A plaintiff is never relieved of the burden of proving negligence

of a defendant when that negligence is in issue, even though the burden of going forward

may shift after the plaintiff has proved a prima facie case, with the help of any permissible

inferences.”).

In sum, to satisfy its burden of production, a defendant must produce admissible

evidence in support thereof. If the bases involve “issues [that] are beyond the general

knowledge and comprehension of layperson jurors[,]” Am. Radiology Servs., 470 Md. at

583, expert medical testimony will be required to satisfy that burden.

CONCLUSION

For the foregoing reasons, we reverse the circuit court’s grant of State Farm’s

motion for summary judgment. Browne was entitled to proceed with a CJP § 3-1701 action

in the circuit court after receiving a final decision from the OAH and was not collaterally

estopped from maintaining her circuit court action. We also vacate the circuit court’s

denial of Browne’s motion for summary judgment due to its mistaken reasoning in doing

so.

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Accordingly, we remand this case for proceedings consistent with this opinion. On

remand, the court will have another opportunity to rule on Browne’s motion using correct

legal standards and consistent with the foregoing opinion.

GRANT OF STATE FARM’S MOTION
FOR SUMMARY JUDGMENT
REVERSED. DENIAL OF BROWNE’S
MOTION FOR SUMMARY JUDGMENT
VACATED. CASE REMANDED TO
RULE ANEW ON BROWNE’S MOTION
AND FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY STATE FARM.

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