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Landon v. Zorn10/6/2005
ented to the jury'" provided the instruction is a correct statement of the law, and that the statement of law is applicable given the facts presented at trial. Wegad, 326 Md. at 414, 605 A.2d at 126 (internal citations omitted). See also The Sergeant Co. v. Pickett, 285 Md. 186, 194, 401 A.2d 651, 655 (1979). The third inquiry is derived from Md. Rule 2-520(c) which provides that a court "need not grant a requested instruction if the matter is fairly covered by instructions actually given." Id. The burden of showing reversible error and prejudice rests with the complaining party. Farley, 355 Md. at 47, 733 A.2d at 1020 (internal citations omitted). "If any one part of the test is not met, we will affirm the trial court's denial of the request for instruction." Fearnow, 342 Md. at 385, 676 A.2d at 76.
c. Contributory Negligence
The Landons requested that the trial court give the following special instruction regarding contributory negligence:
The Plaintiff cannot recover if the Plaintiff's negligence is a cause of the injury .
The defendant has the burden of proving by a preponderance of the evidence that the Plaintiff's negligence was a cause of the Plaintiff's injury .
Patients are entitled however to rely on their physician's advice. That reliance must be reasonable and justified. A patient is not in a position to diagnose his own ailments. As a consequence, it is not contributory negligence for a patient to follow a doctor's instruction or rely on the doctor's advice.
In addition before the plaintiff can be guilty he must be made aware by the physician of the consequences of his action or actions. If the plaintiff is not told either because the physician fails to inform the plaintiff or the physician does not know of the potential adverse consequences the plaintiff has not been given enough information to make an informed decision and cannot therefore be guilty of contributory negligence.
The court declined to give the instruction, and instead gave an instruction based on MPJI-Cv. 19:11 and 19:1. The court instructed the jury that,
the patient cannot recover if the patient's negligence is a cause of the injury . Negligence, as I've indicated, is doing something a patient using ordinary care would do. Ordinary care, again, means that caution, attention or skill that a reasonable person would use under similar circumstances. The defendant has the burden of proving by a preponderance of the evidence that a patient's negligence was the cause of the patient's injury.
The instruction, as given, fairly covered the substance of the Landons' request. The court's instruction covered the law of contributory negligence and repeats almost verbatim the first two paragraphs of the Landons' requested instruction. Accordingly, it appears that the Landons are objecting to the failure to give the information contained in paragraphs three and four of the proposed instruction. In support of the propositions contained in paragraphs three and four, the Landons cite the cases of Hill v. Wilson, 134 Md. App. 472, 495, 760 A.2d 294, 306 (2000) (noting that "a patient is not in a position to diagnose his own ailments," but a patient's unreasonable delay in obtaining medical testing, examination, or treatment as directed by a treating physician is evidence of contributory negligence) and DiLeo v. Nugent, 88 Md. App. 59, 73, 592 A.2d 1126, 1133, cert. granted, 325 Md. 18, 599 A.2d 90 (1991), appeal dismissed, 327 Md. 627, 612 A.2d 257 (1992).
In DiLeo, the Court of Special Appeals held:
We have recognized in the past that a patient is not in a position to diagnose her own ailments, appreciate the
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