Appeals Court Affirms Exclusion of Evidence and Defense Verdict After Delivery of Newborn
May 1, 2024
By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services
(2004-2013)
California Hospital Medical Center
Los Angeles
News: A recent medical malpractice case in Ohio provides an important primer on the evidence that plaintiffs can use to try to establish malpractice. The Ohio Court of Appeals reviewed a medical negligence lawsuit stemming from the death of a newborn shortly after delivery. The appellants — the parents and the estate of the child — filed the suit against the delivery physician and his employer hospital, asserting that the physician’s negligence during the delivery process directly caused the child’s death. The trial hinged on critical evidentiary rulings, notably regarding the scope of cross-examination and the invocation of certain peer review privileges.
After a jury unanimously found in favor of the physician and hospital, the plaintiffs appealed the verdict, claiming that they should have been permitted to question the physician about whether he had lost privileges after the incident — and whether he lost those privileges because of the delivery underlying the lawsuit. The appellate court affirmed the trial court’s ruling that those questions would unfairly prejudice the jury against the physician. This case illuminates the rigor of evidentiary standards.
Background: In 2018, the plaintiffs filed a lawsuit alleging medical negligence by the physician who delivered their newborn, attributing their newborn’s death to his purported malpractice. During discovery and trial, the plaintiffs sought to challenge the physician’s professional conduct by proposing that alterations to his hospital privileges post-delivery were indicative of his negligence. They wanted to show that after the incident, the hospital revoked some of his privileges.
To prevent the plaintiffs from introducing this evidence to the jury, defense attorneys first filed a motion to exclude any inquiries into events following the delivery, including investigations, subsequent remedial measures, and changes in liability insurance, under the aegis of peer review privilege. They also argued such matters were irrelevant to the core allegations of negligence and were protected by statutory confidentiality provisions designed to safeguard the integrity of medical review processes. The trial court judge agreed and excluded evidence related to the physician’s post-event professional standing from the trial.
On appeal, the plaintiffs claimed that the trial court committed an abuse of discretion and violated their fundamental due process rights to a full and fair cross-examination by refusing to permit the appropriate impeachment of the physician, who also served as his own expert. The plaintiffs claimed that the court erred in refusing to allow any inquiry into the “true reasons” that the physician stopped delivering babies following the incident. They argued that they should have been permitted to cross-examine the physician to fully explore whether he voluntarily decided to stop delivering babies following the incident or whether others had asked him to stop that part of his practice because this line of questioning would have impeached his credibility. The plaintiffs also alleged that the physician was dishonest during his deposition when he said that he voluntarily stopped delivering babies following the incident.
The appellate court found that the plaintiffs did not present any evidence to support their belief or that the record supports that the physician was untruthful during the deposition about the status of his privileges or license. The court ruled that, although plaintiffs believed the deposition testimony was untrue, that was merely their speculation — and that is insufficient to allow impeachment evidence. The court also found that this line of questioning would be unfairly prejudicial to the physician.
What this means for you: This case highlights several points relevant to practitioners within the medical community.
It highlights that courts take seriously their function as gatekeepers of what information the jury will hear. Evidence, even if it is relevant to the case, may not be heard by the jury if it is unfairly prejudicial. Here, the appellate court determined these questions would have encouraged the jury to draw an improper inference — namely, that because the physician’s delivery privileges were revoked due to the care rendered during the labor and delivery in this case, he must have acted negligently in his delivery of the newborn But, as the court stated in its opinion, the jury’s decision must be based on the evidence presented. Drawing the inference that the physician must have acted negligently in this case just because his privileges were revoked afterward would be improper.
Just because a layperson might consider certain testimony or evidence to be relevant or may be interested in learning what happened to this physician’s privileges after the incident, does not mean that this evidence is relevant in the eyes of the law. Nor does it mean that the jury should be allowed to hear it even if it is relevant. The jury must reach its own conclusion about whether the physician breached the standard of care based on the evidence and the expert testimony presented at trial, which they can choose to believe or ignore. This is a fundamental safeguard that courts apply to protect the rights of defendants.
The case also highlights what relevant evidence is and is not. Although it might be tempting to conclude the physician in this case must have done something wrong for his privileges to be revoked, that simply is not relevant to whether he erred and committed medical negligence in the delivery of the newborn. Courts have many ways of keeping such evidence out of the trial, and a great number of appeals after trials involve questions just like the one posed here. In opposing the plaintiffs’ arguments on appeal, the defense lawyers argued that evidence of “subsequent remedial measures,” such as revoking or suspending a physician’s privileges, has long been prohibited at trial. There are strong policy reasons for this prohibition in negligence cases: The legal system does not want to punish or disincentivize defendants in negligence actions from taking measures that would have made an earlier injury less likely to occur.
The topic of peer review protection must be clearly understood by plaintiffs. Formal and informal internal investigations follow every untoward or unexpected event that takes place in a healthcare facility — even if no harm occurs. The primary purpose of these reviews is to prevent recurrence, not to place blame. Lawsuits take place outside of these investigations and they are never privy to them. It is not unusual for a peer review to find no fault following an event, but a jury might find fault at the trial. Of course, the opposite occurs just as frequently. But to improve patient safety and outcomes, the healthcare facility must be able to thoroughly investigate all aspects of an event without fear of prejudicial influences of either plaintiff or defense actions. Without these protections, improvements do not happen, progress is stalled, and patient safety suffers.
In this case, the plaintiffs also sensed that this line of questioning might not be entirely relevant to the issue of medical negligence. Instead, they claimed that the line of questioning was intended to determine the physician’s credibility or lack thereof. They argued that the physician was not honest about whether his privileges were revoked, and the jury should learn about this dishonesty. Assessing the witness’s credibility is one of the jury’s foremost tasks, and if there is evidence that the witness was untruthful about answers that they gave under oath — whether it is at trial or deposition, as was the case here — then lawyers are allowed to cross-examine the witness about these inconsistencies. This line of questioning is called “impeachment” or “impeaching the witness’s credibility.”
“Impeachment” is what the plaintiffs tried to claim here on appeal. The appellate court found that, although impeachment is permitted, the party who seeks it must have some basis for believing that the answers to the questions are untrue. In other words, a witness cannot be impeached simply because the other party has a suspicion that the witness is dishonest. The appellate court called that “speculation” and found that the plaintiffs offered no evidence in support of their suspicion. The appellate court examined the physician’s answers under oath at his deposition and found his explanations for why he discontinued delivering babies after the incident — that he was simply getting old and grew tired of waking in the middle of the night to perform the deliveries — to be reasonable. Witness credibility is an important topic on which clients and counsel must work together in every trial.
REFERENCE
- Decided March 14, 2024, in the Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga, Case Number 112294.
A recent medical malpractice case in Ohio provides an important primer on the evidence that plaintiffs can use to try to establish malpractice.
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