Summer 2023

The Applications and Limitations of the Subsequent Negligence Doctrine

In September 2022, The Appellate Court of Maryland heard arguments from counsel for Tami Browne (“Plaintiff”) and State Farm Mutual Automobile Insurance Company (“Defendant”) to answer questions, including whether an original tortfeasor will remain liable for subsequent medical negligent treatment of an original injury and what determines if negligent medical treatment is a superseding cause. The answer in the court’s opinion follows a foreseeability analysis and concludes that subsequent treatment may be a superseding cause only 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.

The TL:DR Version: Even in the context of an uninsured/underinsured motorist claim, a negligent actor is still liable not only for harm that they directly cause but also for any additional harm resulting from normal efforts of third persons in rendering aid, regardless of whether such acts are done in a proper or a negligent manner, including medical treatment.


Plaintiff Tami Browne suffered injuries as a result of an automobile accidence where the at-fault driver fled the scene. At the time of the accident, the vehicle was stopped at a red traffic signal when an unidentified driver rear-ended her vehicle. By the time the police arrived, the at-fault driver was nowhere to be found. Plaintiff 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 reported low back, hip, and neck pain to her primary care provider and underwent three months of non-surgical treatment. She continued to complain of lower back, neck, and hip pain. Given her ongoing complaints, she was sent for an MRI, which revealed a Tarlov cyst along the sacral nerve roots, as well as a protruding disc at L4–L5. She was referred to a neurosurgeon and underwent surgery to remove the Tarlov cyst. After the procedure, Plaintiff experienced worsening pain, ongoing numbness, tingling, and weakness in her legs. Arguably, different symptoms than she experienced prior to the cyst removal procedure. She also resumed non-surgical treatments for her pain after the surgery.

At the time of the accident, Defendant insured the vehicle in which Plaintiff was a passenger. The policy provided uninsured/underinsured motorist coverage. She filed a UM claim with her insurer. The parties were unable to reach a resolution, and Plaintiff filed a breach of contract claim against Defendant, her insurer, in the Circuit Court for Montgomery County.

Ultimately, Plaintiff filed a Motion for Summary Judgment, arguing there was no dispute of material fact that the automobile collision was a “but-for” cause of her injuries, including the cyst removal surgery, which was necessary to treat her original injuries and complaints of pain. She also argued the undisputed facts in the record demonstrate the collision was the legal and proximate cause of her surgery and post-surgery injuries. Defendant opposed the motion arguing that their defense expert concluded that cyst surgery was not related to the accident and not medically necessary. The cyst removal procedure had independently created new and additional symptoms separate and distinct from those which could be attributed to the motor vehicle accident. The circuit court denied Plaintiff’s motion and granted Defendant’s counter dispositive motion on an unrelated issue of collateral estoppel. Plaintiff appealed. The court reversed the circuit court’s decision on both motions and remanded the case back to the Circuit Court.

On appeal, Plaintiff asked the court to resolve the following question related to the subsequent negligence doctrine:

Whether the circuit court erred in denying Plaintiff’s motion for summary judgment because Defendant was liable for any negligent medical treatment she received?

Read: Should Plaintiff’s Motion for Summary Judgment have been denied? Was there enough evidence to show that Defendant was also liable to cover the additional injuries and damages, including the cyst surgery and following treatment?


Plaintiff’s position in her motion for summary judgment surrounded the position that Defendant presented insufficient evidence that her treating physicians’ surgery was negligent, thus precluding any defense involving superseding causation. She argues that the cyst removal and any further lingering or additional issues are still related to the motor vehicle accident. But where do we draw the line in what treatment we relate to a tort claim? What is foreseeable enough to be reasonably related?

The Appellate Court of Maryland determined that the denial of Plaintiff’s motion for summary judgment was in error. In its opinion, the court provided a detailed discussion for the circuit court to consider.

It is undisputed that as an uninsured motorist coverage provider, Defendant would be liable, up to its policy limit, for damages for which the uninsured motorist would have been liable. However, the court noted there are two relevant doctrines to apply which would determine the extent of Defendant’s liability: (1) the subsequent negligence doctrine, as embodied by § 457 of the Restatement (Second) of Torts, and (2)  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).

Subsequent Negligence Doctrine: the subsequent negligence doctrine extends a tortfeasor’s liability for certain negligence which occurs after the primary tort. See § 457 of the Restatement (Second) of Torts (1965). Section 457 provides 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. It would then follow that certain, albeit limited medical treatment would be included.

Then turning to a causation analysis, the court considerscomment (a) to § 457, which explains 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[.]” Because the original tortfeasor placed the plaintiff in a position of danger, the original tortfeasor should be held accountable for the risks inherent in treatment and rendering aid. Does this include the discovery of unrelated medical ailments in a plaintiff’s body?

In fact, the court notes the liability of the original tortfeasor is not unlimited. So, what actually breaks the chain of causation? Where do we draw the line? Certainly, a medical provider’s own malpractice is not the threshold, especially in the context of personal injury and tort claims.  But when and where does medical treatment become too far removed and no longer related to the original tortfeasor’s actions? Do we apply the usual principles of proximate causation and foreseeability, or is it a higher threshold?

Guiding their examination by these general principles and conducting a foreseeability analysis as in Pittway Corp. v. Collins, 409 Md. 218, 247 (2009), the court determined that an original tortfeasor remains liable “where the intervening causes . . . were set in motion by the 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 court also outlined that the following factors are relevant for the circuit court to consider on remand:

(a) the intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence

(b) the operation or the consequence appears after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation

(c) 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 operation of the intervening force is due to a third person’s act or to his failure to act

(e) 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.

Quoting Restatement (Second) of Torts § 442.

In this context, the court concluded the original 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.” Similarly, the tortfeasor is responsible for “injuries which result from the risk normally recognized as inherent in the necessity of submitting to . . . treatment.” Excluding liability only in situations where the “misconduct is extraordinary.” Specifying that there is no liability if those providing treatment “inflict injury upon [the victim] which is not intended to aid him” or if the victim suffers harm while “taking advantage of his being in the hospital to secure treatment for” a disease or injury not caused by the actor’s negligence, an interesting distinction.

Looking to the Supreme Court of Maryland’s prior rulings, the court recognized 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. Subsequent negligent actions need to be foreseeable and most follow our general, established principles of proximate causation, which still leaves the door open to these types of attacks from the defense.  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.


Written by associate Jessica Pupkin.

To read more about the Court’s decision and its analysis can access the opinion here: