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New Malpractice Trial Ordered; Websites, Email Admitted Without Authentication


A woman underwent cervical disk replacement surgery. She was discharged from the hospital two days after the surgery.

 

Four days after the surgery, she experienced a pain behind her right eye, numbness around her mouth, confusion, and the sensation of being hot and cold at the same time. She was transported to another hospital, where she was admitted and treated by a doctor. A couple of hours later she was discharged from the hospital and she returned home.

 

Later that morning, she awoke with worsening symptoms and was driven to the hospital where she underwent the disk replacement surgery. She was treated by the surgeon who had performed the disk replacement surgery. The woman was diagnosed with a stroke caused by a vertebral artery dissection.

 

After the stroke, the woman experienced the loss of motor skills on her right side, which she regained through therapy. She continued to have chronic, debilitating nerve pain, issues with her balance, and difficulty coming up with the correct words while speaking.

 

The woman sued the hospital where she was transported after the initial onset of symptoms of the stroke, the doctor who treated her there, and the doctor’s practice group. The complaint alleged negligence and lack of informed consent.

 

The woman’s expert on the standard of care was a Canadian doctor who was neither board-certified nor licensed to practice medicine in the United States. Towards the beginning of trial testimony, a voir dire of the Canadian doctor was conducted in the presence of the jury. He testified that he was familiar with the standard of care required of emergency-room physicians in the United States, and he also stated that there was no difference between the standard required in the United States and that required in Canada. Counsel for the doctor and practice group cross-examined the Canadian doctor regarding his qualifications and elicited the fact that, although he was a practicing emergency-medicine physician in Canada and was certified as an emergency-medicine specialist in the provinces of Quebec and Alberta, he had neither sought, nor received, a license to practice medicine in the United States. Counsel asked the Canadian doctor whether he was eligible to sit for board certification with the American Board of Emergency Medicine (ABEM). The Canadian doctor replied that he did not know whether he was eligible.

 

Subsequently, the doctor and practice group offered three exhibits purporting to relate to the policies of the ABEM. Exhibit A was a printed version of a web page that purported to outline the ABEM's policies on training requirements. Exhibit B was a printed version of an ABEM web page, stating that, in Canada, the Royal Association of Physicians and Surgeons of Canada (RAPSC) reviews and accredits Canadian residency programs. Exhibit C was a printed version of an email from the Associate Executive Director of the Academic and Board Relations section of the ABEM. The printed version of the email stated that training through the College of Family Physicians of Canada (CFPC) did not fulfill the ABEM's eligibility requirements. The Newport County Superior Court admitted all three documents as full exhibits over the woman's objections. At the conclusion of the voir dire and over the objections of the hospital, doctor, and practice group, the trial court ruled that the Canadian doctor was qualified to provide expert testimony on the standard of care and causation.

 

After a three-week trial, the jury returned a verdict in favor of the hospital, doctor, and practice group.

 

The Supreme Court of Rhode Island vacated the judgment and remanded the case for a new trial. The court held that, in a matter of first impression, the trial court’s admission of printouts of web pages purportedly printed from the ABEM website was clearly erroneous; in a matter of first impression, the trial court abused its discretion when it admitted a printout of a purported e-mail from the Associate Executive Director of the Academic and Board Relations section of the ABEM; the printouts of the web pages and e-mail constituted inadmissible hearsay evidence; a verdict form question that used the language “practicing in the United States at a community hospital” exacerbated the prejudicial effect of the three improperly admitted exhibits; and the improper admission of the three printouts had a natural tendency to affect the fair-mindedness of the jury, resulting in a prejudicial error that only a new trial could cure.

 

In a matter of first impression, the trial court’s admission of printouts of web pages purportedly printed from the ABEM website was clearly erroneous. The court noted that the issue of authentication of documents printed directly from either an Internet website or an email account was a matter of first impression in Rhode Island. Exhibits A and B were printouts of web pages purportedly printed from the ABEM website. There was no indication on the record that counsel for the doctor and practice group made any representations to the trial court regarding when or by whom the documents reflected in exhibits A and B were accessed and printed from the ABEM website. Counsel did not offer, by affidavit or otherwise, a witness to confirm that the exhibits in question accurately reflected what the witness saw after he or she logged onto the ABEM website. Instead, the doctor and practice group attempted to admit the exhibits through the testimony of the Canadian doctor by merely showing him the documents and asking him if it was “something taken directly off a public website.” The court suggested that an acceptable alternative way to offer into evidence the same information would have been to obtain a copy of the policies and guidelines purportedly contained within exhibits A and B that had been either certified by the keeper of records at ABEM, or attached to an affidavit that attested to the accuracy of the copies. The court concluded that insufficient evidence was proffered to support the authenticity of the two printouts of the ABEM web pages and that, accordingly, the admission of exhibits A and B into evidence was clearly erroneous.

 

In a matter of first impression, the trial court abused its discretion when it admitted into evidence a printout of a purported e-mail from the Associate Executive Director of the Academic and Board Relations section of the ABEM. Exhibit C was a printed version of an email from the Associate Executive Director of the Academic and Board Relations section of the ABEM. Counsel for the doctor and practice group asked the Canadian doctor questions about the identity of the sender of the email and the message contained therein, which he answered based on his reading of the email to himself at counsel's request during the few moments before the questions were asked. There was no indication that the Canadian doctor had previously seen this email, or that he had any familiarity with either the sender or recipient of the email. The court noted that an email may be authenticated in any number of different ways, by either direct or circumstantial evidence. For example, the most direct method would be through the testimony of a witness with personal knowledge that the proffered exhibit is what it is claimed to be, such as the author or recipient of the email. The court found that the Canadian doctor was neither the sender nor the recipient of the email and his recitation of the identity of the purported sender of the email and summary of its message was insufficient to authenticate the email. The court noted that the record was silent as to any distinctive features of the email that would support its authentication. The court reviewed exhibit C and found it did not reveal any characteristic that would authenticate it as an email sent from a representative of ABEM. The court held that the trial court abused its discretion when it admitted the email into evidence without any attempt on the record to verify its authenticity.

 

The printouts of the web pages and e-mail constituted inadmissible hearsay evidence. The three documents entered into evidence as exhibits A through C were found unquestionably hearsay. Exhibits A and B were offered to prove ABEM's eligibility standards for board certification. Exhibit C was offered to establish that the Canadian doctor’s training under the CFPC did not meet ABEM's eligibility requirements. The trial court did not make any of the requisite findings concerning admissibility under Rule 803(24), the “catch-all” exception to the hearsay rule. The court did not find in the record such exceptional circumstances as would warrant the admission of exhibits A to C. The court concluded that all three documents were erroneously admitted in violation of Rule 802.

 

A verdict form question that used the language “practicing in the United States at a community hospital” exacerbated the prejudicial effect of the three improperly admitted exhibits. The phrase “practicing in the United States” drew attention to the fact that the Canadian doctor was not board-certified in the United States. The court noted that the email and two web pages, introduced as full exhibits were available to the jury during its deliberations. The court concluded that the improperly admitted documents probably influenced the jury's verdict.

 

The improper admission of the three printouts had a natural tendency to affect the fair-mindedness of the jury, resulting in a prejudicial error that only a new trial could cure. The woman offered only one expert witness to testify regarding the standard of care and the doctor's alleged breach of that standard. The court noted that a medical expert plays a pivotal role with respect to meeting the burden of proof in a medical malpractice case. The weight to be ascribed to the Canadian doctor’s testimony was the central issue in the case because the entire cause of action hinged on whether the jury found that the treatment provided to the woman by the doctor met the standard of care. The court held that the ultimate test in determining whether improperly admitted evidence was sufficiently prejudicial to warrant a new trial was whether the evidence reasonably tended to exert an influence upon the determination of the real issue in the case. The court concluded that the weight that the jury ultimately gave to the Canadian doctor’s testimony may have been overly influenced by the improperly admitted evidence.

 

The Supreme Court of Rhode Island vacated the judgment in favor of the hospital, doctor, and practice group and remanded the case for a new trial.

 

See: O'Connor v. Newport Hosp., 2015 WL 1225683 (R.I., March 17, 2015) (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, December 2013 Report: Thicker Than Water: Liability When Blood Clots Cause Injury or Death

 

 

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