## Facts

- Eugene Tuer, age 63, was admitted to a hospital with chest pain and unstable angina and was scheduled for coronary artery bypass graft surgery.
- His cardiologist ordered Atenolol and intravenous Heparin to stabilize his condition; his symptoms improved over the weekend.
- Under the existing protocol, an anesthesiologist stopped Heparin early on the morning of surgery to reduce bleeding risk during anesthesia.
- The surgery was delayed several hours when the lead surgeon was called to an emergency; during the delay the surgeon considered, but did not restart, Heparin due to perceived risks if surgery commenced while anticoagulated.
- Before surgery began, Tuer developed arrhythmia and respiratory distress, suffered cardiac arrest, underwent emergency surgery, and died the next day.
- After Tuer’s death, the hospital changed its protocol for unstable-angina patients to continue Heparin until transfer to the operating room.
- Tuer’s spouse, individually and as personal representative, sued the cardiac surgeons and their professional association for medical malpractice.
- The trial court excluded evidence of the post-death protocol change under Maryland Rule 5-407; the jury returned a defense verdict, and intermediate appellate review affirmed.

## Issues

1. Whether Maryland Rule 5-407 barred evidence that the defendants changed their Heparin protocol after the patient’s death when offered to prove negligence or culpable conduct.
2. Whether the protocol change was admissible under Rule 5-407 to show the feasibility of continuing or restarting Heparin during the surgical delay.
3. Whether the protocol change was admissible to impeach the surgeon’s testimony about the risks of restarting Heparin.
4. Whether the trial court abused its discretion in excluding certain other-patient medical records offered for impeachment and in limiting rebuttal evidence.

## Decision

- The Court of Appeals of Maryland affirmed the judgment for the defendants.
- The post-event protocol change was a subsequent remedial measure and was properly excluded when offered to prove negligence or culpable conduct.
- The feasibility exception did not apply because feasibility was not genuinely controverted; the dispute concerned medical judgment and relative risk, not whether restarting Heparin could be done.
- The impeachment exception did not apply because the later protocol did not directly contradict the surgeon’s testimony; it reflected a later reevaluation of risks after an adverse outcome.
- The remaining challenged evidentiary rulings (other-patient records and rebuttal limits) were upheld as within the trial court’s discretion.

## Legal Principles

- Evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct when the measures are taken after an injury or harm.
- The feasibility exception permits such evidence only when feasibility is actually disputed; disagreement about safety or prudence does not, by itself, place feasibility in issue.
- The impeachment exception is applied narrowly; a subsequent change that reflects a later reassessment of risks does not impeach earlier testimony unless it creates a direct inconsistency.
- Trial courts have broad discretion over impeachment materials and rebuttal evidence, and appellate courts will not reverse absent an abuse of discretion causing prejudice.

## Conclusion

The court held that a post-incident change in a medical anticoagulation protocol constituted a subsequent remedial measure inadmissible to prove negligence, and that neither feasibility nor impeachment justified admission where feasibility was not contested and the change merely reflected a later reassessment of relative risks; the defense verdict was therefore affirmed.


Tuer v. McDonald, 347 Md. 507, 701 A.2d 1101 (Md. 1997)