347 Md. 507, 701 A.2d 1101 (Md. 1997)
Tuer v. McDonald is a leading Maryland decision on the admissibility of subsequent remedial measures in the context of medical malpractice.
May a plaintiff use evidence of a hospital's post-incident change in its heparin protocol as impeachment of a physician's testimony that stopping heparin before a catheterization procedure reflected reasonable medical judgment, where the defendant does not claim infeasibility or make factual assertions directly contradicted by the change?
Under Maryland Rule 5-407 (mirroring Federal Rule of Evidence 407), evidence of subsequent remedial measures is not admissible to prove negligence or culpable conduct. Such evidence may be admitted for limited purposes—such as impeachment or, if disputed, ownership, control, or the feasibility of precautionary measures—but courts must construe the impeachment exception narrowly to avoid nullifying the rule. The feasibility exception applies only if the defendant has actually contested feasibility. A witness's explanation of professional judgment or risk-benefit tradeoffs does not, without more, open the door to impeachment via subsequent remedial measures.
Evidence of the post-incident change in the heparin protocol was inadmissible under Rule 5-407. Neither the feasibility nor the impeachment exceptions applied, and admitting the evidence was error. The judgment was reversed, and the case was remanded for a new trial without the improper evidence.
Tuer v. McDonald is a staple for understanding subsequent remedial measures in professional negligence cases. It teaches that courts will police the boundary between proper impeachment and improper use of later changes to imply earlier negligence. For practitioners, it cautions against assuming that any post-incident policy change can be smuggled in as impeachment; the door opens only when a defendant makes a concrete, contradictory factual claim or disputes feasibility. For students, Tuer is an exemplar of policy-driven evidentiary interpretation and shows how evidentiary rules interlock with the standard-of-care analysis in medical malpractice.