concurring in part and dissenting in part.
I concur in the result. I agree with the Court’s holding in Part III of the opinion, and thus I agree that the case must be remanded for a new trial. I disagree, however, with Parts I and II of the majority opinion.
*305In Part I, the majority holds that the trial judge abused his discretion in refusing to admit, as a part of plaintiffs case-in-chief, evidence of a practice once followed by the Center, but discontinued one and one-half to two years before this accident. I disagree with that holding. Ordinarily, evidence of a policy or regulation of a defendant regarding the performance of a certain act is admissible when the plaintiff shows the policy or rule was in effect at the time of the accident, but was not followed on that particular occasion. See 3 F. Harper, F. James, and O. Gray, The Law of Torts § 17.3 at 587-88 (2d ed. 1986). That is not the case here. Conceivably, the evidence may have been admissible to rebut a contention by the defendant that it was not feasible to provide someone to accompany the patient at all times, but I do not understand that such a contention had been made in this case. At best, this evidence was admissible only in the exercise of the wide discretion of the trial judge, and I see no error in his refusal to admit it.
I also disagree with the majority’s holding in Part II of the Court’s opinion. The so-called “standard of care” exception to the usual rule of exclusion of evidence of subsequent conduct is unsound, and should be jettisoned in favor of the better reasoned approach of Federal Rule of Evidence 407. If evidence of subsequent conduct is always admissible on the issue of the amount of care required of a defendant under the circumstances, then there is no rule of exclusion because that issue is always present in a negligence case. The exception does indeed “swallow the rule.” L. McLain, Maryland Evidence, § 407.1 at 410 (1987). The federal approach does not preclude the introduction of evidence of remedial measures. Rather, it reasonably restricts the admissibility of such evidence to those situations when it is needed, i.e. “when offered for another purpose such as providing ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” Fed.R.Evid. 407. I would adopt that approach for prospective application at the required retrial of this case.