A woman underwent a CT scan of her sinuses. A radiologist read the CT scan and failed to detect a cancerous mass in the woman's sinuses. Two weeks later, the woman underwent another CT scan. The radiologists who read that scan also failed to detect the mass in the woman's sinuses. About three months after her initial sinus CT, the woman underwent an MRI of her head. The radiologist who read the MRI detected the cancer in the woman's sinuses. She subsequently underwent treatment for her cancer. However, just under ten months after the initial sinus CT, the woman died.
The administrator of the woman's estate sued various health care providers alleging medical malpractice and wrongful death. Specifically, the complaint alleged that the defendants breached the applicable standard of care by failing to timely diagnose the woman's cancer. All defendants other than the radiologist who read the first CT scan and her practice group were eventually dismissed.
The estate filed a motion in limine seeking, among other things, to prevent reference to or presentation of any evidence indicating that other health care providers besides the radiologist and her practice group allegedly failed to detect the woman's nasopharyngeal cancer. The Barbour Circuit Court granted the motion in limine.
At trial the radiologist's attorney referred to the second CT scan. The estate objected arguing that the references violated the motion in limine. The judge sustained these objections. Additionally, references to the second CT scan were not properly redacted from the radiologist's exhibits. During deliberations, the jury asked the judge if they could see the second CT scan. The judge denied the request. The jury returned a verdict in favor of the radiologist and her practice group. The trial court entered a judgment on the jury verdict.
At some point after the jury returned its verdict, the estate's attorney reviewed the exhibits that had been sent to the jury deliberation room. The attorney then discovered that two references to the second CT scan in one of the defendant's exhibits that had not been redacted despite the order granting the motion in limine. The estate moved for a new trial. The trial court granted the estate's motion for a new trial. The radiologist and her practice group appealed arguing that the trial court exceeded its discretion in ordering a new trial based on the jury's exposure to certain evidence that the trial court had excluded by an order granting a motion in limine.
The Supreme Court of Alabama affirmed. The court held that when a motion for a new trial was granted for reasons other than, or in addition to, a finding that the verdict was against the great weight or preponderance of the evidence, the reviewing court applies a standard of review that is more deferential to the trial court's determination that a new trial is warranted. The trial court's ruling on a motion for a new trial should not be disturbed unless some legal right was abused and the record plainly and palpably shows the trial judge was in error.
The court held that the introduction of extraneous materials warrants a new trial if either (1) the jury verdict is shown to have been actually prejudiced by the extraneous material or (2) the extraneous material is of such a nature as to constitute prejudice as a matter of law. The court reasoned that because the trial court did not exceed its discretion in finding actual prejudice, it need not consider whether the trial court exceeded its discretion in finding prejudice as a matter of law. The test for actual prejudice is that it might have unlawfully influenced that juror and others with whom he deliberated and might have unlawfully influenced its verdict rendered. The circumstances need to indicate only that there might have been prejudice.
The court found that the trial court did not exceed its discretion in concluding that the unredacted references to the second CT scan in one of the defendant's exhibits might have improperly influenced the jury. Specifically, the court noted that after deliberating for about thirty minutes, the jury asked the trial court, “What about the test from the 25th?” The trial court, unaware that references to the May 25 CT scan had not been redacted from the exhibit, answered: “All of the properly admitted exhibits have been provided to you.” The court reasoned that the jury's question, coupled with the trial court's answer, suggested that the jury considered information that had actually been prohibited by the order granting the motion in limine. Evidence indicating that the second CT scan showed that the woman had cancer—but that the cancer remained undetected—reasonably could have influenced the jury in determining the liability of the radiologist, who read the earlier CT scan and failed to detect the cancer. Therefore, the grant of the motion for new trial was affirmed.
See: Mottershaw v. Ledbetter ex rel. Estate of Womack, 2013 WL 5966785 (Ala., November 8, 2013) (not designated for publication).
See also Medical Law Perspectives, October 2012 Report: Mistakes in Diagnosing Cancer: Liability Concerns for Misdiagnosis, Failure to Diagnose, and Delayed Diagnosis
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