EMAIL TO A FRIEND COMMENT

 

Denial of Physician Pretrial Motion Amendment Not Error; Failure to Diagnose Cancer


A man presented to a hospital complaining of neck pain. Tests showed he probably had throat cancer. It was treatable but required immediate attention. The test results were never communicated to the man. The man was sent home with a prescription for antibiotics. A year later he learned of the test results. The cancer had progressed and the man died.

 

The man’s wife sued the doctors and hospital for medical negligence. Through twenty months of motions practice and discovery and all the way through their submissions for the final pretrial order, the defendants maintained a unified front denying any negligence by anyone. Two weeks before trial some of the defendants settled. Days before jury selection, the remaining doctor defendant sought permission to amend the pretrial order so he could change his trial strategy. He wanted to pursue a defense pinning the blame on the absent settling defendants, arguing that they were indeed negligent and that they—not he—should be held responsible for any damages. The doctor's motion to amend the final pretrial order sought permission to introduce new jury instructions, exhibits, and witnesses aimed at advancing this new defense. The United States District Court for the Eastern District of Oklahoma denied the motion. The jury found him liable for damages of a little over $1 million. The doctor appealed arguing that the district court's refusal to amend the final pretrial order and allow his new defense as well as the district court's exclusion of evidence about the man's use of tobacco and alcohol amounted to reversible error.

 

The Tenth Circuit United States Court of Appeals affirmed. The court held that the district court did not abuse its discretion in refusing to allow the doctor to amend the final pretrial order, and the probative value of the evidence of the man's tobacco and alcohol use was not substantially outweighed by the danger of unfair prejudice.

 

The district court did not abuse its discretion in refusing to allow the doctor to amend the final pretrial order. The court noted that the abuse-of-discretion standard for modifying a final pretrial order is as high as it is to ensure everyone involved has sufficient incentive to fulfill the order's dual purposes of encouraging self-editing and providing reasonably fair disclosure to the court and opposing parties alike of their real trial intentions. Partial settlement in multiparty litigation was foreseeable. Amendment would prejudice the plaintiff by forcing her to prepare for an entirely different trial on a few days' notice. The district court’s denial of the doctor's request to amend the final pretrial order to allow for a contributory negligence defense, where the defendants had previously asserted a united defense of no negligence by anyone, precluded the doctor from offering evidence suggesting negligence by the settling co-defendants or instructing the jury to apportion liability and damages between him and the settling co-defendants. Under Oklahoma law, it is not for the courts to absolve defendants who elect to go to trial from damages a jury has lawfully found them personally liable for and attribute some of those sums to others not found liable; a pretrial settlement cannot be used as a credit where the ghost tortfeasor's liability was not submitted to the jury.

 

The probative value of the evidence of the man's tobacco and alcohol use was not substantially outweighed by the danger of unfair prejudice. The court reasoned that, at trial, the cause of the man's cancer was not at issue, only the failure to warn him of its existence. Therefore, the evidence of the patient’s tobacco and alcohol use bore no relevance to the question of liability. If the man's tobacco and alcohol use affected his prognosis or life expectancy, it would have become relevant to the question of damages. However, the doctor failed to present competent evidence indicating a connection between the man's tobacco and alcohol use and his prognosis. The district court did not abuse its discretion in holding that most inquiries about the man's use of tobacco and alcohol would be more prejudicial than probative of any issue in dispute.

 

The Tenth Circuit United States Court of Appeals affirmed the district court’s entry of judgment, following a jury verdict, against the doctor.

 

See: Monfore v. Phillips 2015 WL 534774 (C.A.10 (Okla.), 2015) (not designated for publication).

 

See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis

 

 

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