News: Recently, an appeals court in Ohio affirmed a verdict finding a defendant group of doctors not liable for medical malpractice in failing to detect a woman’s cancerous tumor. After the jury reached a verdict for the defendants, the plaintiff argued that her lawyer should have been allowed to impeach the defendant pathologist who she accused of failing to detect her cancerous growth.
However, the appellate court found that the appeal failed for several reasons. First, the trial court judge did not err in preventing the plaintiff’s attorney from impeaching the defendant pathologist with reports from other patients. Second, however, and more fundamentally, the appellate court noted that the plaintiff did not have a full transcript of the trial for the appellate court to review. Without a transcript, the appellate court found that it was simply unable to determine if the trial court had erred in its decision to prevent the woman from offering the evidence she wanted.
The case is a reminder of the basics of what evidence will be allowed to make it in front of a jury, as well as the procedural and administrative fundamentals of appeals, all of which can become critically important for any doctor or medical administrator involved in litigation.
Background: The plaintiff underwent a surgery to have her thyroid removed. The defendant pathologist who examined the plaintiff’s thyroid did not detect a malignancy in the woman’s thyroid. However, a few years later, the plaintiff had another surgery on her neck to remove a growth, and that pathologist found a cancerous growth. The pathologist also determined that the plaintiff’s thyroid cancer was, in fact, present in the slides of her 2015 visit to the previous pathologist. Cancer also was found in the woman’s lung after additional testing. The woman sued the first pathologist and his employer for medical malpractice for failing to detect the cancer in 2015.
During the trial, the plaintiff’s attorneys sought to impeach the defendant pathologist after he testified that he had not ever made a similar error in missing a cancerous growth. As it happens, the pathologist had treated two other relatives of the plaintiff, and the plaintiff’s attorney had the pathologist’s reports from those treatments, which purportedly showed that the pathologist had missed cancerous growths in those instances as well. The plaintiff’s attorney argued that this showed the pathologist’s untruthfulness and sought to impeach the pathologist on this basis.
The trial court refused to allow impeachment on this basis, because bringing in those other reports could cause the jury to question whether the defendant pathologist was negligent in those cases as well. Whether the pathologist was negligent in those cases was not relevant to the issues in this case, the court determined. The trial court also did not allow the plaintiff’s attorney to ask his client, the plaintiff, about her relatives’ experiences with the pathologist.
After the jury returned a verdict for the defendant pathologist, the plaintiff made a motion for a new trial, and then appealed the denial of that motion. The plaintiff appealed on the grounds that the trial court erred in prohibiting the plaintiff’s attorney’s efforts to fully explore the other purported acts of negligence and impeach the defendant pathologist.
However, the plaintiff’s attorney submitted an incomplete trial transcript on appeal. On that basis alone, the appellate court found that it could not decide the issue of error on an incomplete record, and explained that it was the appellant’s obligation to include a transcript that allows the reviewing court to do its job. The court also found that the plaintiff did not show that any error of the trial court rose to the level of requiring a new trial anyway, because no “substantial right” of the plaintiff was affected by excluding the evidence relating to the reports. The appellate court also found that it was not an error for the trial court to prevent the plaintiff’s attorney’s line of questioning about previous missed cancer diagnoses.
What this means for you: Attorneys attempt to “impeach” witnesses to draw their credibility into question in front of the jury. An attorney can impeach a witness with a document or other piece of evidence that shows that the party may not be entirely honest when testifying. In this case, the attorney for the plaintiff sought to impeach the credibility of the defendant pathologist for his testimony that he could not recall previous instances in which he missed a cancer diagnosis. The trial court judge rejected the attempt to do so for a couple reasons, chief among them that it would be prejudicial for the jury to hear about unrelated cases of missed cancer diagnoses.
Trial courts have a gatekeeping role of permitting the jury to consider only relevant evidence. Even where evidence may be relevant, a trial court still must exclude it if it would be unfairly prejudicial to one of the parties. That is what happened here. The trial court found that, even if the pathologist had missed previous cancer diagnoses and denied it, it would be too prejudicial to him to allow the plaintiff’s attorney to ask him about previous instances where that occurred, because he is not on trial for those previous instances. Allowing the jury to hear that what the doctor is accused of has happened before may lead them to believe that he must be liable in this instance as well. But technically that is not relevant in determining his liability here. However, that the doctor had missed diagnoses would be a fact that is hard to forget when jurors begin their deliberations. The trial judge therefore excluded it, and the appellate court affirmed.
The court exercised its gatekeeping role again when it prevented the plaintiff’s attorney from asking other pathologists about the reports. The plaintiff’s attorney wanted to make the point that the hospital group should be held liable as a whole, and to establish that, sought to raise the issue that the hospital group had been negligent with respect to its policies concerning reviewing cases. Here, the trial court rejected this attempt because doing so would be to introduce evidence of “subsequent remedial measures.” Subsequent remedial measures are actions that a party takes after an accident or negligent incident to prevent it from occurring again. The policy against allowing evidence of those measures in front of the jury is to encourage, or at least not penalize, a party when it fixes a negligent condition. The legal system recognizes that we are all better off when people or companies are encouraged to repair, fix, and correct negligent conditions. Here, the court noted that, if the defendant doctors group made changes to their policy following a missed cancer diagnosis, that would be a subsequent remedial measure that should not make it in front of a jury.
Also worth noting is the court’s ruling that, even if there was an error made by the trial court, it does not automatically entitle the plaintiff to a whole new trial. Courts recognize that no one is perfect, even trial court judges. For that reason, any error by the trial court will only get the appealing party a new trial if it affects the party’s substantial rights. In other words, the appellate courts give the trial courts some leeway in recognition that there are a lot of decisions that the trial court must make. It would be unreasonable to expect the trial court judge to get every decision right every time during the course of a trial, especially when those decisions involve evidentiary rulings. The trial court judge may make several hundred evidentiary rulings over the course of a trial.
Lastly, this case is a reminder of the importance of the sometimes mundane administrative requirements for an appeal. Here, the appellate court noted that it did not even have the ability to review the appellant’s legal arguments in full, because the appellant did not attach all of the relevant portions of the trial transcript. Including a full record on appeal is one of many requirements to make a successful appeal. In this case, the appellate court did not seem to think that the plaintiff had much of an argument on the merits. But for those cases where practitioners have excellent grounds to appeal an evidentiary ruling, step one is to make sure that you file the appeal correctly.
Regardless of the legalities, the medical group has a responsibility to its patients to use their peer review process to assure that the members within the medical group continually meet the accepted standard of care for the particular specialty involved. Although peer review records are (with some exceptions) generally held to be privileged and confidential, for the purposes of patients’ safety and mitigation of potential events, the medical group has a responsibility to take peer review activities seriously and stand by the decisions reached by their internal review. Questionable outcomes or lack of qualified review staff can be referred for outside peer review. Remediation also can be outsourced in some instances.
Reference
- Decided on March 29, 2024, in the Court Of Appeals Of Ohio, Ninth Appellate District, County Of Lorain, Case No. 23CA011969.
Recently, an appeals court in Ohio affirmed a verdict finding a defendant group of doctors not liable for medical malpractice in failing to detect a woman’s cancerous tumor. After the jury reached a verdict for the defendants, the plaintiff argued that her lawyer should have been allowed to impeach the defendant pathologist who she accused of failing to detect her cancerous growth.
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