EMAIL TO A FRIEND COMMENT

 

Defense May Not Elicit Expert Opinion Beyond Scope of Open Door Doctrine


A woman presented to the emergency room (ER) complaining of headaches and nausea. She was examined by a triage nurse, who noted that the woman had experienced headaches for the past four or five days and had been vomiting for a week. The woman was then examined by a physician specializing in emergency medicine. The emergency medicine physician reported that the woman was a 42-year-old female who presented complaining of vomiting for “the last couple of days on and off” associated with an atypical migraine-type headache that started today. His report also noted that the woman had a history of migraines and had previously been prescribed Imitrex, a drug used to treat migraine headaches. The emergency medicine physician performed a medical evaluation.

 

The emergency medicine physician began treatment of the woman by providing her intravenous (IV) saline fluid, Pepcid, and Reglan. The IV saline addressed the loss and fluids due to her vomiting. Pepcid, an antacid, was for her nausea. Reglan was for her headache pain. About an hour later a nurse evaluated the woman, who stated that her headache persisted and described the pain as an eight on a ten-point scale. An emergency medicine physician then prescribed Toradol, an anti-inflammatory medication, to address her headache. About an hour later, with her headache persisting, the emergency medicine physician prescribed Vicodin, which was effective in reducing her pain. After about an hour her condition had improved and she was discharged from the ER. The emergency medicine physician reported a final diagnosis of possible hepatitis and migraine headache. He requested lab tests regarding the possibility of hepatitis and instructed the woman to follow up with her physician in the next two or three days.

 

The following day, the woman was taken by the police to another hospital after she was found driving in the wrong direction on a highway exit ramp. She was confused and disoriented. Doctors at the other hospital determined that she was suffering from herpes simplex encephalitis, a viral infection of the brain that causes swelling that can result in coma or death. Common symptoms of the infection are headache, fever, weakness on one side of the body, nausea, and vomiting. Not all symptoms are present in every patient. The viral infection tends to run its course between three days to a week from the initial presentation of symptoms. After being diagnosed, the woman was treated with Acyclovir. She failed to respond and succumbed to the disease several days later. An autopsy later confirmed the cause of death was herpes simplex encephalitis.

 

Her estate filed a medical malpractice action against the emergency medicine physician, his practice group, and the hospital where the ER was located. Specifically, the complaint alleged that the emergency medicine physician and hospital personnel negligently failed to diagnose and treat her herpes simplex encephalitis.

 

The emergency medicine physician, his practice group, and the hospital filed a motion in limine seeking to preclude from evidence a consent agreement and order entered into by the emergency medicine physician with the New York Department of Health and evidence that the emergency medicine physician twice failed the emergency medicine board examination. The consent agreement and order related to an investigation by the New York State Department of Health’s Office of Professional Medical Conduct about three years after the woman died. As a result of that investigation, the Department of Health brought seven counts of professional misconduct against the emergency medicine physician, including failure to maintain a record for each patient that accurately reflected the care and treatment of the patient and practicing medicine with negligence on more than one occasion. The Stamford–Norwalk Superior Court granted the motion in limine on the ground that the evidence was more prejudicial than probative, explaining that order was preliminary and that the evidence could become admissible if the defendants offered evidence regarding the emergency medicine physician’s qualifications or habits. In reaching that ruling, the trial court emphasized that the emergency medicine physician had not been offered by either party as an expert witness.

 

At trial, the estate called the emergency medicine physician to testify. The estate did not disclose him as an expert witness and did not lay a foundation establishing his credentials. The estate asked a question that elicited a medical opinion, which was answered without objection. Specifically, the estate asked the emergency medicine physician, whether an atypical migraine headache needed to be worked up with a CAT scan and a lumbar puncture. The emergency medicine physician answered that a CAT scan and a lumbar puncture were appropriate for an atypical headache. The estate’s counsel then stated: “Now, I’m not asking you that as an expert. I’m asking you as a party.” At the conclusion of the estate’s direct examination, the defendants stated that they would reserve their cross-examination questions for their case in chief.

 

The defendants called the emergency medicine physician to testify. The defendants’ counsel began with a series of questions related to his professional background. The trial court interrupted the examination and excused the jury from the courtroom. The trial court then explained that, “I was clear that if you put the doctor’s credentials in issue that the plaintiff would then be able to cross-examine more thoroughly. The only conclusion that I could draw [from the defendants’ counsel’s questioning] was that you were confused as to my ruling. I want everybody to be clear what my ruling was. And that if you put the doctor’s credentials at issue, then I’m going to allow the consent decree to come in.” The trial court later stated: “Maybe you weren’t going any further, but you were going down a road which in my opinion would have resulted in me having to let in evidence that I have already indicated more times than I want to that I think is prejudicial and not particularly probative but the plaintiff would have that right.” The trial court then ruled that the defendants’ counsel had not opened the door to allow evidence of the consent decree.

 

The estate objected and moved to strike the prior testimony. The trial court denied the motion on the basis that the questions only covered the emergency medicine physician’s high school and college education.

 

The jury returned and the defendant’s direct examination of the medicine physician continued. During the examination, the defendants’ counsel asked several questions that elicited medical opinion testimony. The estate objected on the basis that the emergency medicine physician had not been offered as an expert. The trial court overruled those objections on the ground that the estate’s counsel had opened the door when he elicited medical opinion testimony during the estate’s case in chief. The court ruled that, although he had not been offered as an expert, the emergency medicine physician had provided expert opinion testimony under the estate’s examination and that, under the open the door doctrine, it would allow the defendants to elicit similar testimony within the same scope.

 

The defendants’ counsel, over the estate’s objection, asked the emergency medicine physician a number of question eliciting medical opinions. For example, the defendants’ counsel asked whether it was important, when he was assessing someone with a headache complaint, to observe: (1) whether the head is normal-cephalic and atraumatic, (2) the extraoccular eye movements, (3) the cranial nerves, and (4) whether the patient’s eyes are closed. The emergency medicine physician answered that it was important. He then explained why each assessment was important in properly diagnosing a patient who presents with a headache.

 

On cross-examination, the estate’s counsel attempted to ask the emergency medicine physician, “in your prior job, you were not let go under good circumstances, were you?” The defendants’ counsel objected and the trial court sustained the objection.

 

The jury returned a verdict in favor of the emergency medicine physician, his practice group, and the hospital. The jury found that the estate had failed to prove that the emergency medicine physician had deviated from the standard of care.

 

Following the jury verdict, the estate filed a motion to set aside the verdict and for a new trial. The trial court denied the estate’s motions.

 

The Appellate Court of Connecticut reversed. The court held that the trial court abused its discretion when it admitted the emergency medicine physician’s medical opinion testimony, the trial court abused its discretion when it barred cross-examination of the emergency medicine physician’s credentials, and the error was harmful.

 

The trial court abused its discretion when it admitted the emergency medicine physician’s medical opinion testimony. The estate’s direct examination of the emergency medicine physician elicited expert testimony regarding the standard of care for a patient complaining of an atypical headache. The emergency medicine physician’s subsequent testimony under the defendants’ direct examination went beyond the scope of the initial offer, and thus the admission of such testimony was an abuse of the trial court’s discretion. The defendants’ examination of the emergency medicine physician was not limited to the extent necessary to place his earlier testimony in context. Over the estate’s objection, the defendants’ counsel solicited, and the emergency medicine physician offered, medical opinions that went beyond the standard of care issues raised by the estate, namely, what an emergency room physician is required to do under the circumstances. Specifically, the testimony extended to what the emergency medicine physician does and looks for when treating a patient with headaches. The emergency medicine physician’s responses did not explain the appropriate standard of the profession, but rather explained what his particular knowledge, understanding, and practice is when treating patients with headaches.

 

The trial court abused its discretion when it barred cross-examination of the emergency medicine physician’s credentials. The emergency medicine physician’s testimony in response to the defendants’ direct examination placed his qualifications and experience at issue. The estate should have been permitted an opportunity to challenge his testimony during cross-examination.

 

The error was harmful. At closing argument, the defendants’ counsel used the emergency medicine physician’s opinion testimony as the basis for his defense against the claim that he had deviated from the standard of care. This argument relied on the credibility of the emergency medicine physician’s opinion testimony. His testimony was not merely cumulative of other evidence presented in this case. The emergency medicine physician’s expert testimony likely affected the jury’s evaluation of the remaining evidence presented at trial. At trial, the state argued that the “atypical headache” notation was probative evidence that the emergency medicine physician had breached the standard of care when he failed to perform a CAT scan and a lumbar puncture. The defendants argued that the notation was a typographical error. As the emergency medicine physician had dictated the contents of that medical report, his expert testimony, without a full cross-examination, colored the jury’s perception on this critical issue of fact. If the jury determined that the emergency medicine physician was credible, then it would be more likely to credit his explanation that the notation was a typographical error. If, on the other hand, the jury determined that the emergency medicine physician was not credible, then it would be more likely to conclude that, faced with a patient with an atypical headache, the emergency medicine physician had deviated from the standard of care by not performing a CAT scan and lumbar puncture.

 

The Appellate Court of Connecticut reversed the trial court’s denial of the estate’s motion to set aside the verdict and for a new trial.

 

See: Tiplady v. Maryles, 2015 WL 4429231 (Conn.App., July 28, 2015) (not designated for publication).

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care 

 

 

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