Incorrect Admission of Five Words Regarding Standard of Care in Eight-Day Medical Malpractice Trial Held Harmless Error

A patient died after receiving medical care from a doctor. The administrator of the patient's estate sued the doctor for medical malpractice. During the administrator’s deposition of the patient’s treating physician, the doctor was asked whether he thought the defendant had violated the standard of care. He replied, “I think it was fine.”


At trial, the defendant offered the patient’s treating physician’s deposition testimony as expert testimony about the standard of care. The administrator objected stating that the treating physician’s testimony had not been disclosed pursuant to a pretrial discovery request as required. The court barred the administrator from objecting on the basis that objections to recorded depositions must be made ten days prior to trial to allow for video editing. The court showed the jury the video of the treating physician’s deposition in its entirety. After an eight-day trial, the jury returned a verdict in favor of the physician, and the administrator appealed. The Court of Appeals reversed, and the doctor appealed.


The Supreme Court of Kentucky reversed the Court of Appeals. The rule requiring objections to recorded depositions be made ten days prior to trial to allow for video editing did not apply to bar administrator from objecting at trial to admission of deposition testimony of patient's treating physician. The court held that while this rule did not apply, the trial court's error in barring the administrator from doing so was harmless. The five words, “I think it was fine,” were the only portion of the deposition testimony to which the administrator objected. Compared to all the testimony elicited over an eight-day trial, the admission of five words is harmless.


See: Hashmi v. Kelly, 2012 WL 4213472 (Ky., September 20, 2012) (not designated for publication).