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Obstetrics Anesthesia, Embolus Evidence, Witness Tampering, Harmless Error Test


A 38-year-old woman became pregnant and five weeks before her due date she underwent a cesarean delivery. She was wheeled into the operating room where an anesthesiologist administered spinal anesthesia. A moment after the placenta was removed, the woman became unresponsive, her blood pressure fell precipitously, and she went into cardiac cardiopulmonary arrest. The anesthesiologist and hospital staff attempted to revive her. She was temporarily resuscitated and transferred to the intensive care unit, where another cardiopulmonary arrest occurred. She died five hours after the delivery.

 

Following her death her husband filed a lawsuit against the anesthesiologist, his related corporations, and the hospital. The complaint alleged that the defendants’ negligence caused the woman’s death. At trial the cause of the woman’s death was the central issue. Her husband alleged that the anesthesiologist was negligent in administering anesthesia, monitoring her system, controlling her fluids during surgery, and responding to her cardiopulmonary arrests. The defendants asserted that the woman’s death was caused by an amniotic fluid embolus (AFE), which is an allergic reaction that develops when a mother’s blood mixes with amniotic fluid.

 

The jury found that the defendants were not liable for the woman’s death. The Fifteenth Judicial Circuit Court, Palm Beach County, entered judgment on a jury verdict in favor of the anesthesiologist, his related corporations, and the hospital.

 

The Fourth District Court of Appeal affirmed and ruled on the following question, which the court certified to be of great public importance: in a civil appeal, shall error be held harmless where it is more likely than not that the error did not contribute to the judgment? The appellate court held that to avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict. The appellate court then applied to the “more likely than not” harmless error tests to the facts and concluded that it was more likely than not that the alleged errors did not contribute to the verdict.

 

The Supreme Court of Florida reversed, remanded, and answered the certified question in the negative. The court held that the trial court erred when it excluded testimony on cross-examination of the hospital's expert regarding the hospital's overdiagnosis of amniotic fluid embolus (AFE), the trial court’s exclusion of the evidence was not harmless, evidence that the Department of Health initiated an investigation into the doctor who performed the autopsy of the deceased patient was not admissible to show witness tampering, and testimony regarding statements made to the estate's expert through her attorney in which defense counsel suggested she change her opinion was admissible as evidence of witness tampering.

 

The trial court erred when it excluded testimony on cross-examination of the hospital's expert regarding the hospital's overdiagnosis of amniotic fluid embolus (AFE). The trial court did not have the authority to bar or limit adverse or relevant evidence.

 

The trial court’s exclusion of testimony on cross-examination of the hospital's expert regarding the hospital's overdiagnosis of AFE was not harmless. In answering the certified question in the negative, the court held that in a civil appeal, the test for harmless error requires the beneficiary of the error to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error complained of contributed to the verdict. By precluding the jury from considering the hospital’s expert's testimony with regard to the over-diagnosis of AFE, the patient's estate was prevented from presenting evidence to demonstrate and further support the argument that physicians at the hospital were over-diagnosing AFE. This hindered efforts to undermine the credibility and weight of the hospital's defense with regard to the cause of the patient's death. Because there was a reasonable possibility that certain errors by the trial court contributed to the verdict, the court reversed the judgment of the appellate court and remanded for a new trial.

 

Evidence that the Department of Health initiated an investigation into the doctor who performed the autopsy of the deceased patient was not admissible to show witness tampering. Evidence in the record demonstrated that the Department initiated its investigation of the doctor in light of the defense expert's conclusions that there were signs of AFE, not because of a specific request by the defense.

 

Testimony regarding statements made to the estate's expert through her attorney in which defense counsel suggested she change her opinion was admissible as evidence of witness tampering. The defense counsel suggested to the plaintiff's counsel that the expert change her opinion regarding the patient's diagnosis of amniotic fluid embolus (AFE) in order to avoid embarrassment. The court concluded that the exclusion of this evidence of witness tampering was harmful.

 

The Supreme Court of Florida reversed and remanded the trial court’s entry of judgment on a jury verdict in favor of the anesthesiologist, his related corporations, and the hospital.

 

See: Special v. West Boca Medical Center, 2014 WL 5856384 (Fla., November 13, 2014) (not designated for publication).

 

See also Medical Law Perspectives, August 2012 Report: Anesthesiology Errors: Complications, Malpractice, and Catastrophe

 

 

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