Tuer v. McDonald

Opinion by Justice Wilner

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FACTUAL BACKGROUND

The relevant underlying facts are not in substantial dispute. Mr. Tuer, 63, had suffered from angina pectoris for about 16 years. In September, 1992, his cardiologist, Dr. Louis Grenzer, recommended that he undergo coronary artery bypass graft (CABG) surgery and referred him to the defendants for that purpose. The surgery was initially scheduled for November 9, 1992. On October 30, however, Mr. Tuer was admitted to St. Joseph's Hospital after suffering chest pains the night before, and the operation was rescheduled for the morning of November 2.

After a second episode of chest pain following Mr. Tuer's admission, Dr. Grenzer prescribed Atenolol, a beta blocker that reduces pressure on the heart, and Heparin, an anti-coagulant, to help stabilize the angina. The Heparin was administered intravenously throughout the weekend, and, with the other medication Mr. Tuer was receiving, it achieved its purpose; there were no further incidents of chest pains or shortness of breath. The defendants assumed responsibility for Mr. Tuer on November 1. Dr. McDonald was to perform the operation, with Dr. Brawley assisting.

The operation was scheduled to begin between 8:00 and 9:00 a.m. on November 2. In accordance with the protocol then followed by the defendants and by St. Joseph's Hospital, an anesthesiologist caused the administration of Heparin to be discontinued at 5:30 that morning. That was done to allow the drug to metabolize so that Mr. Tuer would not have an anticoagulant in his blood when the surgery commenced.

Both Mr. Tuer and Dr. McDonald prepared for the 9:00 a.m. surgery. Shortly before the surgery was due to begin, however, Dr. McDonald was called to deal with an emergency involving another patient, whose condition was more critical than that of Mr. Tuer, and that required a three- to four-hour postponement of Mr. Tuer's operation. Mr. Tuer was taken to the coronary surgery unit (CSU) in the meanwhile, where he could be closely monitored. Dr. McDonald considered restarting the Heparin but decided not to do so.

Dr. McDonald next saw Mr. Tuer just after 1:00 p.m., when he was summoned to the CSU and found his patient short of breath and with arrhythmia and low blood pressure. Quickly thereafter, Mr. Tuer went into cardiac arrest. Appropriate resuscitation efforts, including some seven hours of surgery, were undertaken, and, although Mr. Tuer survived the operation, he died the next day. Following Mr. Tuer's death -- apparently because of it -- the defendants and St. Joseph's Hospital changed the protocol with respect to discontinuing Heparin for patients with unstable angina. Under the new protocol, Heparin is continued until the patient is taken into the operating room; had that protocol been in effect on November 2, 1992, the Heparin would not have been discontinued at 5:30 a.m., and no issue would have arisen as to restarting it.

The dispute over whether evidence of the new protocol was admissible arose several times during the trial, in different, though related, contexts. As a preliminary matter, it is important to note that, at no time during the trial did the plaintiff complain about the initial decision to discontinue the Heparin at 5:30 in anticipation of the operation commencing at 8:00 or 9:00 that morning; nor did she complain about Dr. McDonald's postponing the surgery in order to deal with the other, more critically ill patient. Her expert witnesses confirmed that neither of those decisions constituted a departure from the applicable standard of care. With respect to the subsequent remedial measure issue, her sole complaint concerned Dr. McDonald's (or Dr. Brawley's) decision not to restart the Heparin once the decision was made to postpone the surgery, and the evidence produced by her focused on that decision. The experts' point was that, while Mr. Tuer would still have some benefit from the Heparin as it metabolized from 5:30 to 8:00 or 9:00, he would have no benefit from it thereafter, and that left him vulnerable. It was their position that Mr. Tuer's unstable angina returned that morning and ultimately led to his cardiac arrest and death.

The admissibility of the change in protocol first came before the court through the defendants' motion in limine to exclude any reference to the change in practice. At a hearing on that motion, the plaintiff took alternative positions with respect to the admissibility of the evidence. First, she contended that, because the defendants were claiming that the protocol in place on November 2 was a correct one, consistent with the applicable standard of care, the new protocol was not really a remedial measure and, for that reason, did not fall under the Rule. The court rejected that approach, concluding that a defendant did not have to admit wrongdoing in order for a subsequent change to be regarded as remedial. The plaintiff has not pressed that argument in this appeal. She also asserted that the evidence would be admissible to show that restarting the Heparin was "feasible," to which the court responded that it would allow the evidence for that purpose if the feasibility of restarting the Heparin was denied by the defendants. The defendants made clear that they did not intend to assert that the new protocol was not feasible and that they had no problem with the plaintiff asking Dr. McDonald whether Heparin could have been restarted. The court granted the motion subject to revisiting it "because of the way the trial goes."

The Heparin issue first arose at trial when the plaintiff called Dr. McDonald as an adverse witness. In direct examination, Dr. McDonald stated that he approved discontinuation of the Heparin at 5:30 so that it would metabolize before the scheduled surgery. That decision, he said, was taken to minimize the risk attendant to an inadvertent puncture of the carotid artery by the anesthesiologist.

Dr. McDonald explained that, in the initial stage of CABG surgery, the anesthesiologist inserts a catheter into the internal jugular vein in the neck and that the procedure for doing so involves, first, puncturing the vein with a needle and then, after inserting a guide wire, making an incision and inserting the catheter. He pointed out that the jugular vein lies in close proximity to the carotid artery, which is a high pressure vessel that brings blood from the heart to the brain, and that, in his experience, there was a 5% to 10% incidence of the anesthesiologist inadvertently puncturing the carotid artery when attempting to insert the needle into the jugular vein. A puncture of the carotid artery, he said, could produce a serious bleeding problem, and it was for that reason that the protocol called for patients not to have an anticoagulant in their blood when the surgery commenced. He first said that he was unaware of whether any fatalities had resulted at St. Joseph's Hospital or in his particular practice from such an inadvertent puncture, but he did recall that they had had "some serious consequences from inadvertent carotid artery puncture in our hospital." In later testimony, he recounted that he was "very familiar with fatalities in the literature from inadvertent carotid puncture in patients who are having cardiac surgery." In response to a specific question, he confirmed that "the procedure in place on November the 2nd, 1992, at St. Joseph Hospital, for coronary artery bypass patients on Heparin therapy was to discontinue the Heparin three to four hours prior to the time of the surgery . . ." and that that practice and procedure "was required by the standard of care applicable at that time." He explained: "that is what we did at our hospital."

Following that answer, the plaintiff attempted to set up a basis for inquiring as to the subsequent change. He elicited from Dr. McDonald that there were no circumstances prior to November 2, 1992 in Dr. McDonald's practice at St. Joseph's Hospital in which a patient with Mr. Tuer's clinical profile -- unstable angina stabilized in the hospital with Heparin therapy pending coronary bypass surgery -- would not have had their Heparin discontinued three to four hours prior to their surgery. Dr. McDonald confirmed that "that was our policy at the time. It would have been a departure, and sitting here this morning I just can't think of a reason off hand why that could be." He added that he had considered restarting the Heparin once the surgery was postponed and elected not to do so because he did not want the drug in Mr. Tuer's blood when the surgery commenced. Counsel asked whether it was "feasible to restart Heparin for Mr. Tuer after your decision to postpone the surgery," but the court sustained an objection to that question. Counsel then inquired whether it was Dr. McDonald's contention "that it would have been unsafe to restart Mr. Tuer's Heparin after your decision to postpone his surgery," (emphasis added) to which the witness responded in the affirmative, for the reason already given.

With that answer, plaintiff urged that she was entitled to ask about the change in protocol for impeachment purposes -- presumably to show that it is not unsafe to bring a patient into surgery with Heparin in his or her system. The court again rejected that argument, distinguishing between the situation presented, of the doctor changing his mind about the relative safety of the protocol, apparently as a result of the unfortunate death of Mr. Tuer, and the case of the doctor not really believing at the time that it would have been unsafe to restart the Heparin. The latter, the court concluded, would constitute grounds for impeachment, but not the former: "In order to impeach his opinion that it was unsafe on November the 1st, 1992, there need be evidence that he didn't think it was unsafe on November the 1st, 1992, not what he thought in January or February of 1993."

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DISCUSSION

Prior to the adoption of Maryland Rule 5-407, Maryland followed the common law with respect to the admissibility of subsequent remedial measures. We first adopted that law principally as articulated by the Supreme Court in Columbia v. Hawthorne. . . -- a pre-workers' compensation era negligence action by an employee against his employer for injuries sustained when a pulley fell on him. The employer, who lost in a territorial trial court, complained about the allowance of evidence regarding measures undertaken after the accident to make the pulley more secure.

The Supreme Court held that the evidence was inadmissible and reversed. The Court regarded it as "settled" that "the evidence is incompetent, because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant." Columbia, . . . In this regard, the Court quoted with approval from Morse v. Minneapolis & St. Louis Railway Co.,. . .:

"Evidence of this kind ought not to be admitted under any circumstances . . . upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so; and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence."

The introduction of this principle into Maryland law came in Ziehm v. United Electric L.& P. Co.,. . . . Ziehm was a negligence action against an electric utility by a telephone lineman who was injured when, in the course of repairing a malfunction on a telephone line, he came into contact with uninsulated electric wires. His claim was that the wires were strung too close to the telephone pole. The principal question on appeal was whether the trial court erred in finding the plaintiff to be contributorily negligent as a matter of law, but a subsidiary issue was whether the court improperly excluded evidence that the electric wires had been relocated following the accident. Our succinct response to that complaint was that the ruling was correct because "the change of the location of the wires after the accident, could not affect the responsibility of the appellee, at the date of the accident." . . . For that proposition, we cited Columbia v. Hawthorne and two earlier Maryland cases that had nothing to do with subsequent remedial measures but did exclude comparative evidence on relevance grounds.

As indicated, the Supreme Court, in Columbia, held the subsequent remedial measure inadmissible both as an admission of negligence and on more general relevance grounds, as "having no legitimate tendency to prove that the defendant had been negligent before the accident . . . ." The summary statement by this Court in Ziehm would seem to indicate our concurrence with that view. In several subsequent cases, however, we departed from that approach and began to view the exclusionary rule in more restrictive terms, as precluding subsequent conduct evidence only when offered as an admission of liability or negligence on the part of the defendant but allowing it as independent direct or circumstantial evidence of negligence. We see this first in American Paving & Con. Co. v. Davis,. . . . The plaintiff's house was damaged by a fire allegedly caused by sparks emitted from the defendant's steam shovel. The defendant excepted to testimony that, after the fire, it installed a wire screen over the smokestack of the steam shovel and that the sparks escaping from the machine thereafter were much smaller. We concluded that the evidence was admissible "not only for the purpose of showing that the fire was caused by the sparks from the steam shovel, but also as tending to show negligence on the part of the defendant.". . . . We noted that "the mere fact that the defendant put a wire hood or screen over the smokestack would not be admissible for the purpose of establishing an admission of liability by the defendant [citing Ziehm and Columbia] but evidence of the effect of the screen was admissible as reflecting upon the question whether the defendant had exercised proper care and caution to avoid injury to the plaintiff's property.". . . .

In State v. Consolidated Gas Co.,. . . and Long v. Joestlein,. . ., we seemed to return to the broader view of the exclusionary rule. State v. Consolidated Gas Co. was a virtual replay of Ziehm. The plaintiff, whose husband was electrocuted when he came into contact with the defendant's wires, attempted to inquire what the defendant had done to the line after the accident. We affirmed the exclusion of that evidence, quoting from Ziehm that the change in location of the wire "'could not affect the responsibility of the appellee at the date of the accident.'". . . . In Long, a domestic servant who sued her employer when she tripped on a landing step in his home, complained that the court excluded evidence that the employer had painted the landing after the accident. We first held that the evidence was "not admissible as an admission of liability" but added that it would also "be immaterial, because such action by defendant could not affect his liability at the time of the accident.". . .

In Blanco v. J.C. Penney,. . ., we retreated to the more restrictive approach. Blanco was a negligence action by a store customer who was injured when she walked into a plate glass panel that, to her, looked like an open door. On appeal from a directed verdict for the defendant, the plaintiff complained about the exclusion of evidence that, in replacing the shattered panel following the accident, the defendant pasted decals on the glass. The purpose of the evidence, she averred, was not to establish "an admission of liability" on the defendant's part but rather to show the effect of the decals "as reflecting upon the question whether Penney had exercised proper care and caution to avoid causing injuries such as those sustained by the appellant.". . . We agreed with her and reversed, quoting extensively from American Paving & Contracting Co. v. Davis,. . ., and holding that, although the evidence would not be allowed to show an admission of negligence or liability, it was admissible as reflecting on whether the defendant had exercised proper care to avoid injury to the plaintiff.

Our last application and articulation of the common law rule came in Wilson v. Morris,. . . The plaintiff, a disabled person in the defendant's care, was left alone in a wheelchair in a waiting area, in accordance with the defendant's then-current monitoring policy. One of her complaints on appeal, in which we found merit, was that the trial court excluded evidence of a change in that policy following her accident. Quoting from 5 LYNN MCLAIN, MARYLAND PRACTICE: MARYLAND EVIDENCE § 407.1,. . ., we stated the general rule to be that "'when remedial measures are taken following an accident, injury, or event for the purpose of making the event less likely to recur, evidence of those remedial measures is not admissible as an admission of negligence, culpable conduct, or liability in connection with the event'" . . . It was clear, we said, "that subsequent conduct evidence may not be received as admissions of negligence or culpability" (emphasis by the Court). . . . Citing American Paving & Con. Co. and Blanco, we noted, however, that, as an "exception" to that general rule, Maryland common law allowed evidence of subsequent remedial measures to be admitted as "'circumstantial proof that the applicable standard of care had not been met at the time of the occurrence in question.'". . . The Wilson Court observed, in a footnote, that "the general common law rule" excluding evidence of subsequent remedial measures had been codified in Federal Rule of Evidence 407, that the question of whether Maryland should adopt the substance of that rule had not yet been determined, and that the issue was one for initial consideration by the Court's Standing Committee on Rules of Practice and Procedure, which was then in the process of drafting a Code of Evidence for presentation to this Court. . . .

The Rules Committee did, indeed, consider the issue and eventually recommended that this Court adopt the substance of Fed. R. Evid. 407 which, effective July 1, 1994, we did, in the form of Maryland Rule 5-407. That rule provides as follows:

"(a) In General. -- When, after an event, measures are taken which, if in effect at the time of the event, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event.

(b) Admissibility for Other Purposes. -- This Rule does not require the exclusion of evidence of subsequent remedial measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."

In recommending that Rule to this Court, the Rules Committee made clear its view that the proposed rule would, in effect, overrule the "standard of care exception" applied in Wilson and some of the earlier cases. The Reporter's Note following the proposed rule stated:

"The most recent statement of Maryland law on the subject of subsequent remedial measures is Wilson v. Morris,. . ., wherein the Court of Appeals held that evidence of subsequent remedial measures is 'not admissible as an admission of negligence or culpable conduct' but is admissible as 'circumstantial proof that the applicable standard of care had not been met at the time of the accident or other occurrence in question.'. . .

The Committee views the Wilson decision, with its suggestion that Rule 407 evidence is admissible to define the scope of a duty ('standard of care'), as creating an ambiguity. The Committee believes that Rule 407 does not permit the admission of such evidence for that purpose, and that a 'standard of care' exception would swallow the Rule."

The Federal Advisory Committee on Rules of Evidence, which drafted Fed. R. Evid. 407, offered two justifications for excluding evidence of subsequent remedial measures to prove culpability: first, that the subsequent conduct "is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence," and second, the "social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety." Rules of Evidence for United States Courts and Magistrates,. . . . Although some commentators have since questioned the efficacy of the "social policy" argument . . . it was significant to the Advisory Committee and, together with the relevance argument, was sufficiently persuasive to cause the Federal rule to be proposed by the Supreme Court and adopted by Congress.

These grounds and the commentary on them were considered by both the Rules Committee and this Court in deciding whether to adopt an analog to Fed. R. Evid. 407 and thereby modify the existing Maryland common law, as most recently applied in Wilson v. Morris. The discussion at the open hearing held by this Court on proposed Rule 5-407 documents our acquiescence in the view of the Rules Committee that evidence of subsequent remedial measures should no longer be admissible to show either what the applicable standard of care was at the time of the occurrence or a deviation from that standard of care. In that regard, the exclusionary aspect of the Rule is broader than the common law it replaced. Subject to other possible objections, that kind of evidence may be admitted for some other purpose within the ambit of §(b) of the Rule, but not to prove fault.

The plaintiff offers two grounds for the admissibility of the change in procedure adopted after her husband's death, both hinging on Dr. McDonald's testimony and that of his expert witnesses regarding the risk associated with taking patients into CABG surgery with Heparin in their blood. That testimony, she urges, effectively controverted the feasibility of protecting patients with Heparin until taken into the operating room, which she was then entitled to establish through evidence of the revised protocol. That evidence was also admissible, she claims, to impeach Dr. McDonald's statement that restarting the drug would have been "unsafe." Although these arguments overlap, we shall deal with them separately.

Feasibility

Rule 5-407(b) exempts subsequent remedial measure evidence from the exclusionary provision of § (a) when it is offered to prove feasibility, if feasibility has been controverted. That raises two questions: what is meant by "feasibility" and was feasibility, in fact, controverted? These two questions also tend to overlap and are often dealt with together; whether a defendant has controverted feasibility may well depend on how one defines the term.

The exception allowing subsequent conduct evidence to show feasibility has been a troublesome one, especially in negligence cases, for, as Judge Weinstein points out, "negligence and feasibility [are] often indistinct issues. The feasibility of a precaution may bear on whether the defendant was negligent not to have taken the precaution sooner.". . . The Court of Special Appeals noted that two seemingly divergent approaches have been taken in construing the feasibility exception. Tuer v. McDonald, supra, . . . Some courts have construed the word narrowly, disallowing evidence of subsequent remedial measures under the feasibility exception unless the defendant has essentially contended that the measures were not physically, technologically, or economically possible under the circumstances then pertaining. Other courts have swept into the concept of feasibility a somewhat broader spectrum of motives and explanations for not having adopted the remedial measure earlier, the effect of which is to circumscribe the exclusionary provision.

Courts in the first camp have concluded that feasibility is not controverted -- and thus subsequent remedial evidence is not admissible under the Rule -- when a defendant contends that the design or practice complained of was chosen because of its perceived comparative advantage over the alternative design or practice . . . .

Courts announcing a more expansive view have concluded that "feasible" means more than that which is merely possible, but includes that which is capable of being utilized successfully. In Anderson v. Malloy,. . ., for example, a motel guest who was raped in her room and who sued the motel for failure to provide safe lodging, offered evidence that, after the event, the motel installed peepholes in the doors to the rooms. The appellate court held that the evidence was admissible in light of the defendant's testimony that it had considered installing peepholes earlier but decided not to do so because (1) there were already windows next to the solid door allowing a guest to look out, and (2) based on the advice of the local police chief, peepholes would give a false sense of security. Although the motel, for obvious reasons, never suggested that the installation of peepholes was not possible, the court, over a strident dissent, concluded that, by inferring that the installation of peepholes would create a lesser level of security, the defendant had "controverted the feasibility of the installation of these devices.". . .

The apparent divergence indicated by these cases may, at least to some extent, be less of a doctrinal division than a recognition that the concept of practicability is implicit in the notion of feasibility and allows some leeway in the application of the rule. Part of the problem is that dictionaries, which are often resorted to by the courts, contain several definitions of the word "feasible." WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY. . ., for example, contains three definitions: (1) "that may be done, performed, executed, or effected; practicable; possible"; (2) "likely; reasonable; probable; as, a feasible story"; (3) "that may be used or dealt with successfully; as, land feasible for cultivation." Each of those definitions embody, to some extent, the concept of practicability. Some courts have tended to follow the first definition and have thus articulated the notion of feasibility in terms of that which physically, technologically, or economically is capable of being done; others, like the Eighth Circuit in Anderson v. Malloy, have latched on to the third definition, which brings more into play the concepts of value, effectiveness, and overall utility.

To some extent, the problem may be driven by special considerations arising from application of the rule to product liability cases, especially those grounded on strict liability. When the plaintiff is obliged to establish that there were feasible alternatives to the design, manufacturing method, or warnings used by the defendant, he or she necessarily injects the question of feasibility into the case, to which the defendant ordinarily responds by showing why those alternatives were not used. As Saltzburg, Martin, and Capra point out, if a remedial measure has, in fact, been taken that could have been taken earlier, the defendant is not likely to claim that the measure was not possible or practicable, and, indeed, defendants often are willing to stipulate to feasibility in order to avoid having the subsequent remedial evidence admitted. . . . The issue arises when the defendant offers some other explanation for not putting the measure into effect sooner -- often a judgment call as to comparative value or a trade-off between cost and benefit or between competing benefits -- and the plaintiff characterizes that explanation as putting feasibility into issue. . . . To the extent there can be said to be a doctrinal split among the courts, it seems to center on whether that kind of judgment call, which is modified later, suffices to allow the challenged evidence to be admitted.

That is essentially what occurred in this case. At no time did Dr. McDonald or any of his expert witnesses suggest that the Heparin could not have been restarted following the postponement of Mr. Tuer's surgery. Indeed, they indicated quite the opposite; Dr. McDonald, in fact, made clear that, had Mr. Tuer exhibited signs of renewed unstable angina, he would have restarted the Heparin. The only fair reading of his testimony and that of his supporting experts is that the protocol then in effect was the product of a professional judgment call that the risk to Mr. Tuer of having CABG surgery commence while there was a significant amount of Heparin in his blood outweighed the prospect of harm accruing from allowing him to remain Heparin-free for several hours.

Dr. McDonald's brief response to one question that, at the time, he regarded it as "unsafe" to restart the Heparin cannot be viewed in isolation but has to be read in the context of his whole testimony. Under any reasonable view of the meaning of feasibility, a flat assertion by a physician that the remedial measure was inappropriate because it was medically "unsafe" would ordinarily be tantamount to asserting that the measure was not feasible and would thus suffice to controvert the feasibility of the measure. In a medical context at least, feasibility has to include more than mere physical possibility; as we have so sadly learned from history, virtually anything can physically be done to the human body. The practice of medicine is quintessentially therapeutic in nature. Its purpose is to comfort and to heal, and a determination of whether a practice or procedure is feasible has to be viewed in that light. The assertion that a given course would be unsafe, in the sense that it would likely cause paramount harm to the patient, necessarily constitutes an assertion that the course would not be feasible. Dr. McDonald was not asserting, however, in any absolute sense, that restarting the Heparin would have been unsafe but only that, given the complications that could have arisen, and that, in other cases had arisen, from an inadvertent puncture of the carotid artery, weighed against Mr. Tuer's apparently stable condition at the time and the intensive monitoring he would receive during the waiting period, there was a relative safety risk that, at the time, he and the hospital believed was not worth taking. That does not, in our view, constitute an assertion that a restarting of the Heparin was not feasible. It was feasible but, in their view, not advisable.

Impeachment

The exception in the Rule for impeachment has created some of the same practical and interpretive problems presented by the exception for establishing feasibility. As Saltzburg, Martin, and Capra point out, "almost any testimony given by defense witnesses could be contradicted at least in some minimal way by a subsequent remedial measure. If the defendant's expert testifies that the product was safe, a subsequent remedial measure could be seen as contradicting that testimony. If the defendant is asked on cross-examination whether he thinks that he had taken all reasonable safety precautions, and answers in the affirmative, then a subsequent remedial measure can be seen as contradicting that testimony.". . . .

The prevailing, and pragmatically necessary, view is that the impeachment exception cannot be read in so expansive a manner.. . . As Wright and Graham note, even at common law it would likely have been impermissible for the plaintiff to "have called the defendant to the stand, asked him if he thought he had been negligent, and impeached him with evidence of subsequent repairs if he answered 'no.'" . . . Thus, as Saltzburg, Martin, and Capra point out, most courts have held that subsequent remedial measure evidence is not ordinarily admissible for impeachment "if it is offered for simple contradiction of a defense witness' testimony." . . . .

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Largely for the reasons cited with respect to the feasibility issue, we do not believe that the change in protocol was admissible to impeach Dr. McDonald's brief statement that restarting the Heparin would have been unsafe. As we observed, that statement must be read in context, and, when so read, would not be impeached by the subsequent change in protocol. It is clear that Dr. McDonald made a judgment call based on his knowledge and collective experience at the time. He had read about and, in 5% to 10% of the cases had experienced, problems arising from an inadvertent puncture of the carotid artery; he had not experienced a patient in Mr. Tuer's circumstances dying from the lack of Heparin during a four-hour wait for surgery. He was aware that the same protocol, of allowing the Heparin to metabolize, was used at Johns Hopkins Hospital. The fact that the protocol was changed following Mr. Tuer's death in no way suggests that Dr. McDonald did not honestly believe that his judgment call was appropriate at the time. The only reasonable inference from his testimony, coupled with counsel's proffer as to why the protocol was changed, was that Dr. McDonald and his colleagues reevaluated the relative risks in light of what happened to Mr. Tuer and decided that the safer course was to continue the Heparin. That kind of reevaluation is precisely what the exclusionary provision of the Rule was designed to encourage.

JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED, WITH COSTS.