EMAIL TO A FRIEND COMMENT

 

Evidence of Physician's Collateral Misconduct Excluded; Traumatic Ruptured Aorta


A woman was involved in a car accident. Emergency personnel transported her to a local hospital where she underwent a head and neck CT scan. Because of concerns about potential internal bleeding, she was transported by air to a medical center.

 

At the medical center, she was examined and treated by the attending emergency room physician and an emergency room resident. Those physicians ordered a chest x-ray, which a radiology resident read as revealing blunting to the left costophrenic angle possibly related to effusion or scarring and a 3.5 cm mass-like density in the left lower lobe which was worrisome for neoplasm. The resident recommended a chest CT scan. The attending radiologist agreed with the resident's reading. About two and a half hours after arriving in the medical center emergency room, the woman was discharged with instructions to follow-up with her primary care physician.

 

About thirty-six hours later, the woman died at home. An autopsy revealed that she died because of a ruptured aorta related to blunt force trauma to her chest.

 

The woman’s estate sued the attending emergency room physician, emergency room resident, radiology resident, and radiology attending from the medical center for wrongful death and medical negligence and the medical center and its parent corporation for vicarious liability.

 

During the deposition of the attending emergency room physician, he testified about his inappropriate prescription of medication to non-patients, which led to a settlement agreement with the Kentucky Board of Medical Licensure. The estate sought to admit his deposition testimony into evidence at trial. During an evidentiary hearing, the Fayette Circuit Court indicated that the evidence regarding the attending emergency room physician's license was collateral and inadmissible because it dealt with his inappropriate prescription of medication to non-patients, not his treatment of trauma victims in the emergency room. The trial court excluded the evidence regarding the attending emergency room physician's license.

 

During the emergency room resident’s deposition, he testified that he failed the medical licensing exam on his first two attempts. Prior to trial, the doctors sought to exclude any evidence regarding the emergency room resident's failure to pass the licensing exam, arguing that it was irrelevant. The court agreed with the doctors and excluded that evidence.

 

The doctors identified five retained expert witnesses to testify at trial—two emergency room physicians, two radiologists, and one trauma surgeon. The estate moved the trial court to limit the doctors to calling only one retained expert in emergency medicine and one in radiology. The court denied the estate's motion, finding that, under these circumstances, it was not unreasonable for each of the four doctor defendants to identify an expert.

 

The trial court gave the same instruction to the jury regarding the standard of care for each of the four doctors, “It was the duty of the Defendant, [name of physician], in treating [the woman] and diagnosing her condition to exercise the degree of care and skill expected of a reasonably competent physician specializing in [emergency medicine or radiology depending on the physician] acting under similar circumstances.”

 

The court did not use the interrogatory proffered by the estate, “Do you believe from the evidence that [name of physician] failed to observe this duty and that such failure was a substantial factor in the failure to diagnose [the woman]'s aortic injury?” The interrogatory based on the jury instruction was essentially the same for each of the four doctors, “Do you believe from the evidence that [name of physician] failed to comply with this duty and that such failure was a substantial factor in causing [the woman]'s death?” The jury answered that interrogatory in the negative for each of the four doctors.

 

The trial court dismissed the estate's claims against the medical center and its parent corporation on sovereign immunity grounds. The trial court entered a judgment on a jury verdict in favor of the doctors. The Court of Appeals affirmed.

 

The Supreme Court of Kentucky affirmed. The court held that the trial court did not err in excluding evidence regarding the attending emergency room physician's license, the trial court did not err in excluding evidence regarding the emergency room resident’s deposition testimony that he failed the medical licensing exam on his first two attempts, the trial court did not abuse its discretion when it denied the estate’s motion to limit the doctors to calling only one retained expert in emergency medicine and one in radiology, the trial court did not err in instructing the jury, and the trial court’s dismissal of the estate's vicarious liability claims against the medical center and its parent corporation based on a finding that those entities had immunity was moot.

 

The trial court did not err in excluding evidence regarding the attending emergency room physician's license. Evidence of a physician's collateral misconduct is admissible to show the physician's propensity to engage in such conduct only if (1) it is relevant for a legitimate purpose; (2) it is probative, i.e., only if there is sufficient evidence that the other crime, wrong, or act actually occurred; and (3) its probative value is not substantially outweighed by any prejudicial effect. The attending emergency room physician testified primarily as a defendant and fact witness, not as an expert witness. The court reasoned that because the attending emergency room physician did not testify primarily as an expert witness, evidentiary decisions regarding the impeachment of expert witnesses had little application. The attending emergency room physician's knowledge of the appropriate standard of care, which may have been of some relevance had he expressed an opinion on the issue, was not relevant to whether he complied with that standard. The court determined that because the attending emergency room physician did not express an opinion as to the appropriate standard of care and because his licensure problems were not related to his practice as an emergency room physician, evidence of those licensure problems was properly excluded by the trial court as irrelevant.

 

The trial court did not err in excluding evidence regarding the emergency room resident’s deposition testimony that he failed the medical licensing exam on his first two attempts. The emergency room resident did not testify primarily as an expert but as a defendant and fact witness. The emergency room resident did not give an opinion regarding the standard of care. Therefore, the court concluded, his knowledge of the appropriate standard of care was not at issue and was not relevant to whether he complied with that standard of care.

 

The trial court did not abuse its discretion when it denied the estate’s motion to limit the doctors to calling only one retained expert in emergency medicine and one in radiology. It was within the trial court's discretion to control the course of litigation, including control of the amount of evidence produced on a particular point. While the four named physician defendants provided services in only two specialties, each did so from a different perspective, i.e. as resident physicians or as attending physicians. The court reasoned that it was not unreasonable for the court to permit the doctors to identify and call expert witnesses to testify regarding the perspective of each doctor within their respective specialties. The trial court was in the best position to determine if testimony from the experts was needlessly cumulative and to limit that testimony accordingly. The estate failed to point to specific testimony from the four expert witnesses that was unnecessarily cumulative, wasteful of the court's time, or an affront to the notion of judicial economy. Moreover, the estate failed to object at trial on the preceding grounds to the testimony from the doctors’ retained expert witnesses.

 

The trial court did not err in instructing the jury. The instruction used by the court was appropriate. When there is no claim of a superseding intervening cause, an instruction stating that any failure to exercise that degree of care and skill which is ordinarily expected of a reasonably competent doctor acting under the same or similar circumstances was a substantial factor in causing the decedent to suffer the injury that resulted in her death is not appropriate. The court reasoned that the only issue as to causation was whether the woman's death was caused by the negligent failure of her doctors to properly diagnose and treat her condition. There was no claim that an intervening superseding cause was a factor in causing the woman's death.

 

The trial court’s dismissal of the estate's vicarious liability claims against the medical center and its parent corporation based on a finding that those entities had immunity was moot. The estate only pursued vicarious liability claims against the medical center and its parent corporation. The court reasoned that because it affirmed the trial court's judgment in favor of the doctors, the issue of the medical center’s and its parent corporation’s immunity was moot.

The Supreme Court of Kentucky affirmed the trial court’s dismissal of the estate's claims against the medical center and its parent corporation and entry of a judgment on a jury verdict in favor of the doctors.

 

See: Branham v. Rock, 2014 WL 7240141 (Ky., December 18, 2014) (not designated for publication).

 

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

 

See also Medical Law Perspectives, June 2012 Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation

 

 

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