EMAIL TO A FRIEND COMMENT

 

Prohibiting Medical Negligence Plaintiff’s Attorney from Analogizing to BP’s Destruction of Evidence After Gulf Oil Spill Did Not Abuse Discretion


A woman suffered from cervical dystonia. She learned that a clinic offered a new treatment for dystonia called deep-brain stimulation (DBS). DBS involves a surgeon implanting electrodes in the brain to block brain impulses that cause the dystonia. The woman elected to undergo the surgery. During the surgery the woman suffered a stroke, which severely impacted her physical and cognitive abilities. The woman sued the clinic for negligence alleging that the surgeon struck a ventricle which caused the stroke.

 

At trial the judge allowed the clinic to use demonstrative evidence recreating the surgery that was provided to the plaintiff’s counsel ten minutes before the expert using it testified. The clinic explained that the surgery plans for the procedure at issue were automatically deleted from its computer systems in compliance with its document retention policy. The plaintiff suggested that the clinic's failure to save the plan after a significant complication was suspicious. The trial court allowed the plaintiff to refer to this failure repeatedly. But when the plaintiff's counsel began to argue in closing that the failure to maintain the plan was suspicious, and compared the clinic's action to BP's destruction of safety plans after the BP Deep Water Horizon oil spill in the Gulf of Mexico, the trial court ordered the attorney to “avoid that topic” because “there's no suggestion that there's anything willful about the destruction of any documents.” The judge instructed the jury that evidence of alternative medical approaches was not evidence of negligence, because no evidence of recognized alternate methods of treatment was even presented. The jury entered a verdict in favor of the clinic. The court of appeals reversed. The clinic appealed.

 

The Supreme Court of Ohio reversed the court of appeals and affirmed the trial court. First, the trial court acted within its discretion when it allowed the defendant to present demonstrative evidence recreating the surgery that was provided to the plaintiff’s counsel ten minutes before the expert using it testified. Before allowing the late-disclosed demonstrative evidence, the trial judge carefully reviewed both parties' arguments and was well aware of the issue's importance. The patient was permitted to use an exhibit that the trial court deemed to be comparable to the clinic's exhibit. The patient's counsel had access to the same notes that the clinic used in preparing its demonstrative aid. The trial court determined that the patient had adequate opportunity to cross-examine the clinic doctors with respect to the exhibit despite the short notice.

 

Second, the trial court acted within its discretion when it ordered plaintiff’s counsel to avoid analogizing to the BP oil spill in closing arguments. The trial court did not order the plaintiff’s counsel not to argue an inference that because the best piece of evidence—a computerized image prepared prior to the surgery—was not saved, it must have been adverse to the clinic. The trial court allowed the plaintiff to repeatedly suggest that the clinic's failure to save the plan after a significant complication was suspicious. The order to avoid references to the topic occurred just moments before the end of patient's closing argument.

 

Third, the trial court did not err when it instructed the jury that evidence of alternative medical approaches was not evidence of negligence. The different-methods instruction is appropriate only if there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition. Both parties’ experts raised a number of questions regarding how different planning and procedures could have prevented the stroke, all of which required the jury to determine whether another medical approach would have been preferable. These questions fall outside the limited medical knowledge expected of juries.

 

See: Branch v. Cleveland Clinic Found., 2012 WL 5910949, 2012 -Ohio- 5345 (Ohio, November 21, 2012) (not designated for publication).

 

 

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