Medical malpractice cases can turn on expert testimony. What other kinds of evidence may be used to show a doctor is negligent? A doctor’s history of educational difficulties and failures are typically inadmissible to prove negligence. In a recent case, the plaintiff was referred to a doctor after she told her primary care physician about cramping, pain and bleeding. The doctor found she needed a hysterectomy and performed one. She came back to the hospital five days later complaining of pain and discomfort. Her ureter was blocked, but there was too much inflammation to perform an immediate surgery.
The plaintiff was required to wear a nephrostomy tube for three months, during which she had diarrhea, nausea and vomiting. Her ureter was repaired, but she still suffered pain at the time of trial and wet herself every night.
She sued the doctor and his employer for medical malpractice. During the trial, nobody disputed that the ureter injury was caused by the hysterectomy. The issue was whether the doctor was negligent not to check the integrity of the ureter after the operation.
Before the trial, the doctor filed a motion to prevent the plaintiff from presenting evidence on his earlier repeated failures to pass the board certification exam. The court granted the motion. During trial, the doctor presented evidence from experts that were board certified by the American Board of Obstetrics and Gynecology. After the testimony of each expert, the plaintiff requested that the court admit her evidence regarding the doctor’s board certification exam failures.
The trial court denied the motion and when she tried to renew the motion, the court refused to consider it. The plaintiff appealed this decision. The appellate court reasoned that the evidence of the doctor’s history of failures was irrelevant to the issue of negligence. It’s been previously determined in numerous cases that a person’s performance on an exam isn’t determinative of a professional’s ability to meet the standard of care.
The issue was whether the doctor opened the door to admitting evidence about his failures and whether inquiring about an expert witness’ board certification made relevant the defendant’s own board certification. The plaintiff argued that since the doctor decided to testify on his own case as an expert witness, his failures were relevant to his credibility as an expert.
The appellate court agreed that if that were the case, the evidence would be admissible, but that in this case, the doctor had provided at most limited expert testimony. He hadn’t offered an opinion as to whether he met the standard of care or as to what was the cause of her injuries to a medical certainty. The defendant had simply answered that he disagreed with the assertion that his actions were below the standard of care. He hadn’t testified about any professional honors and had testified more about his justification for taking or not taking certain actions, than testifying about routine matters.
The court also explained that the doctor hadn’t challenged the plaintiff’s decision to qualify her expert witness by asking if he was board certified. The court also explained that even if it was an error for the trial court to refuse to allow the plaintiff to introduce evidence of the defendant’s failures, it was not reversible error. Other witnesses had testified that he met the standard of care.
On the other hand, the trial judge had written a nasty note about the plaintiff, which made the plaintiff ask for a mistrial. On the basis of the trial court’s notes reflecting bias and prejudice, the appellate court ruled she was entitled to a new trial in front of an impartial judge.
If you are seriously hurt due to a doctor’s negligence, contact the knowledgeable Florida medical malpractice attorneys at Friedman, Rodman & Frank toll-free for a free consultation at (877) 448-8585.
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