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. 
*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.

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.

______________________________________

Filed: July 27, 2023
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). 
-2-

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. 
-3-

Browne asks us1to 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? 
-4-

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 
-5-

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. 
-6-

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. 
-7-

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. Rosenbaum3and 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. 
-8-

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).”
-9-

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 wellestablished:

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 
-10-

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. 
-11-

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). 
-12-

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. 
-13-

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. 
-14-

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. 
-15-

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 
-16-

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 
-17-

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 
-18-

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. 
-19-

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. 
-21-

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 
-22-

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).”); UnderwoodGary v. Mathews, 366 Md. 660, 668 (2001).
-23-

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 
-24-

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; 
-25-

(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). 
-26-

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 
-27-

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.
-28-

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)). 
-29-

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 nonparty’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. 
-30-

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 
-31-

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 
-32-

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 tortfeasor 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 
-33-

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 
-34-

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). 
-35-

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 
-37-

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. 
-38-

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. 
-47-

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 
-49-

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 nonparty’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 nonparty 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.