Medical Malpractice
Using
Defendants' Evidence Against Them
New York Law Journal, Thursday, December 30, 2004
Ben B. Rubinowitz and Evan Torgan
Medical malpractice cases pit the plaintiff's trial lawyer
against formidable obstacles: A defendant that may take the
litigation personally; an insurer that may prefer to pay its
lawyers rather than your aggrieved client; and a jury pool that
may have been exposed to propaganda criticizing the prosecution
of medical malpractice claims.
To overcome these obstacles you have to be well-prepared to
prove your case through hostile witnesses and through the
defendants' own records.
Leading Defendants on Direct
The best way to try a medical malpractice case is to prove
the case through the mouths of the defendants themselves. You
have the right -- and obligation -- to call the defense doctors
as adverse witnesses and cross-examine them through the use of
leading questions.
This is a critical advantage. By proceeding in this manner,
you have the ability to present the defense testimony in the
light most favorable to your client. To maximize the
effectiveness of this strategy, all of the defendants should be
called prior to calling your experts to the witness stand.
This is important for two reasons: The defendants will not be
able to tailor their testimony to circumvent what your expert
has said; and your expert will have all of the information
needed to support his opinions.
But what if you need to offer the crucial testimony of a
nonparty treating physician on your direct case? As a general
rule, that physician is not going to want to help your client at
the expense of his colleagues -- the defendants in the case. On
the contrary, he may have a motive to shield the defendant
doctor from liability. Perhaps they trade referrals of patients;
perhaps they know each other through medical conferences;
perhaps they are even friends. If the hospital where he has
privileges is a defendant in your case, it is a good bet that he
will not want to help your client. Yet you need his testimony to
prove portions of your case, and you cannot wait for
cross-examination on the defense case. This creates a dilemma.
If this treating physician is not a defendant and you cannot
prove hostility, there is a grave potential that this witness
will hurt you, if you cannot control him through the use of
leading questions on direct. We recommend you do not call him
unless you can prove hostility.
How do you prove hostility? Short of the
doctor showing
outright hostility by his demeanor or admitting his hostility
right from the witness stand, it may be a difficult thing to
demonstrate.
Do not forget, unlike a defendant you call as an adverse
witness, a nonparty witness -- even one with demonstrated
hostility -- will be considered your witness by the court. This
is so because of the archaic nature of our state's common-law
rules of evidence, which hold that one cannot impeach a witness
he calls with evidence showing bias or interest in favor of the
opponent1. This notion, although behind the times and contrary
to the Federal Rules of Evidence,2 which permit you to impeach
the credibility of your own witness, is good law in New York. In
state court, you can only impeach the witness you call with
signed statements or sworn testimony pursuant to
CPLR 4514.
'Catch 22' Situation
Thus, we have a true "catch 22" situation. For the court to
allow leading questions on direct, you need to show the
witness's hostility to your case. The easiest way to show
hostility of the non-party physician is to show bias in favor of
the defendants in the action. But state law forbids impeachment
with bias of a witness you call.
In such a situation, ask for the court's discretion to allow
this line of questioning. If the court denies this request, ask
for a showing outside the presence of the jury, so that the
court might allow leading questions when the jury returns.
Q: Sir, you know that Metropolis Hospital is a defendant in
this case, true?
Q: And that Dr. White is a defendant as well?
Q: Metropolis is the only hospital that affords you admitting
privileges, correct?
Q: In other words, there is no other hospital
in the City
that allows you to admit patients, true?
Q: As a matter of fact, no other hospital in the State allows
you to admit patients to your service, right?
Q: Or in the country for that matter, correct?
Q: You obviously have a relationship with Metropolis
Hospital, true?
Q: Not only is it the only hospital that allows you to
admit
patients, but it is a place that actually refers you
patients,
right?
Q: In other words, two days of every month you are "on call"
there, true?
Q: Where you get to see patients exclusively on their behalf,
right?
Q: You follow them in the hospital?
Q: You refer them for diagnostic testing when necessary?
Q: And you even follow them in your office at times after
discharge, true?
Q: Correct me if I'm wrong, but you obviously charge the
patient for that service, right?
Q: For each patient you see, true?
Q: Either in or out of the hospital, correct?
Q: And the relationship with that hospital is important to
you isn't it?
Q: You wouldn't want to see that end, would you?
Take the same tact in showing bias
in favor of the hospital's codefendant as well
Q: Now, not only do you have a relationship with Metropolis,
but you have an ongoing relationship with Dr. White as well,
true?
Q: He has referred you patients in the past, hasn't he?
Q: You've referred him patients in the past, true?
Q: You have an ongoing business relationship, right?
Q: A relationship you enjoy, true?
Q: A relationship that is beneficial to you both?
Q: A relationship that is financially beneficial to you,
correct?
Because of the nature of malpractice cases, defendants'
lawyers sometimes find themselves having represented the
nonparty witness in other actions. Bias or hostility can be
established by that relationship as well. Do not forget,
however, that although you can impeach this witness on cross,
the court may not permit you to do so on direct.
Q: Are you familiar with Mr. Olsen, the attorney for
Metropolis Hospital?
Q: How many times have you met him?
Q: You've had a relationship with him in the past?
Q: A privileged relationship, true?
Q: Mr. Olsen has been helpful to you, hasn't he?
Q: Tell the jury how you know him?
Q: He has been your lawyer in the past, right?
Q: And you have been his client, true?
Q: The two of you actually share an attorney-client
privilege, correct?
Q: And that lawyer can do nothing to harm your legal
position, you know that, right?
Q: And you wouldn't want to do anything to harm his case,
true?
Obviously, this line of inquiry would be much easier on
cross-examination than on direct examination. During cross,
credibility and bias are always relevant and never collateral.3
You will have much greater latitude to explore these areas at
that time.
Defendants' Documents
Proving the case through the defendants' own documents is
extremely compelling. You can also prove your case through
records they claim not to have, as well as records they do have.
Be careful, however, because hospitals do not always produce
all the relevant records regarding a patient. They sometimes
take the position that certain documents belong to the hospital
rather than the patient.
In no area is this more true than with respect to cases
regarding inter-hospital transfer delays. Many hospitals
actually have a specific document sometimes called a "Patient
Transfer Data Form." Unlike other transfer forms filled out by
the transferring physician and the staff nurse, these forms are
filled out by the nursing supervisor or social worker in charge
of all transfers in and out of the individual hospital. And
unlike the forms filled out by many physicians, the form filled
out by the nursing supervisor includes the specific time the
transfer was set in motion.
To insulate themselves from such suits some hospitals deny
that the record belongs in the patient's chart and deliberately
fail to produce it. Others claim the record does not exist at
all. Therefore, it is important to know the appropriate
procedures involving transfers. This way, you can examine the
appropriate witness on the information they do not produce at
trial.
First, a physician must decide that a patient needs to be
transferred to another hospital. He would then contact a
physician at a receiving hospital to ensure that his patient
could be treated there. He would then have someone contact the
nursing supervisor or social worker on duty at his own hospital
to actually arrange for the transfer. At that point the
appropriate hospital personnel take over.
They contact a counterpart at the receiving hospital, make
sure there is a bed and appropriate staffing for the patient. It
is typically the transferring hospital that arranges for the
ambulance, but those arrangements must be confirmed by the
supervisors at each hospital.
Each of these steps should be documented, including the time
of the initial call, who initiated that call, each person spoken
to, the name of the ambulance company responding, the time they
were initially contacted, the specific internal location of
pickup and drop-off, as well as the anticipated time of
transfer.
There is other relevant information that should be included
on this type of form as well: actual consent to transfer;
neurological status; infection control issues;
intravenous drips
and medications; pertinent lab data; and where specifically
within the receiving institution the ambulance is to take the
patient.
Another form not commonly supplied by hospitals or ambulance
companies is the "Call Intake Form" completed by dispatchers
when they receive either 911 calls or inter-hospital transfer
requests. These documents are filled out by the dispatcher as
opposed to the Prehospital Care Report that is filled out by the
ambulance personnel.
If it is a call involving interhospital transfer, the
Call
Intake Form will include the specific person within the hospital
who initiated the transfer, the actual time of the call, where
within the hospital the patient should be picked up and likewise
dropped off -- as well as relevant history, medications,
intravenous lines and clinical information. Procuring these
forms may be critical in certain cases involving transfer delays
and negligent transport.
Death Cases
In death cases, make sure that you request the
New York State
Department of Health Certificate of Death, which is filled out
by a certifying physician at the hospital where the decedent
passed away. It should be included in the actual hospital record
and can be very helpful to you on the issue of causation. It
includes the following information:
Death was caused by:
a. immediate cause (cardiopulmonary arrest)
b. due to or as a consequence of (intracerebral hemorrhage)
c. due to or as a consequence of (anticoagulation therapy)
This is obviously a crucial document. It is completed at a
time before any lawyers are retained or any suit is anticipated.
It will be difficult for the hospital to escape its own
determination of the cause of death. Do not be concerned about
what the document describes as the immediate cause of death.
That is typically cardiopulmonary arrest.
It is the conclusions that follow that are important:
Q: You testified that the patient succumbed to an infection,
true?
Q: That is false testimony isn't it?
Q: You know he died from the drugs that you gave him during
an angioplasty, true?
Q: And you know that those drugs caused a coagulapathy, true?
Q: Meaning his blood got too thin, right?
Q: And a known side effect of those drugs is major
hemorrhage, true?
Q: Now, you are just saying he succumbed to an infection so
the jury believes it wasn't your fault that my client died,
correct?
Q: Sir, I take it you saw the official death certificate in
the hospital record?
Q: It was completed and signed by a certifying physician at
your hospital?
Q: Long before there were any lawyers involved, true?
Q: Long before there was a lawsuit?
Q: And it listed the immediate cause of death, which was
cardiopulmonary arrest?
Q: But that was just when my client's heart finally stopped
beating, right?
Q: That only occurred as a consequence of intracerebral
hemorrhage, true?
Q: Which was due to anticoagulation therapy, right?
Q: Which you ordered for your angioplasty, true?
Conclusion
Medical malpractice cases must be proved through defense
witnesses and defense documents. Your clients generally have
very little knowledge of the medical issues or
treatment
involved in the case you are bringing. Even if they do, it is
far better to demonstrate the righteousness of your case through
the testimony of adverse witnesses.
It is important to lead these adverse parties when calling
them on your direct case. It is just as important to demonstrate
hostility of nonparty witnesses when necessity dictates you call
them on your direct case. Be careful, however, in calling the
nonparty physician, because if you fail to demonstrate
hostility, that witness can walk all over you under the guise of
being fair and independent.
Finally, know what documents to request pursuant to discovery
or subpoena. Your advocacy can be compelling when the
defendants' own documentation contradicts their defense, causing
them to run, but not hide, from their own records.
1. Prince, Richardson on Evidence (11th Edition, Farrell),
page 433.
2.
Federal Rules of Evidence, Rule 607, states that the
credibility of any witness may be attacked by any party,
including the party calling the witness.
3. Prince, Richardson on Evidence (11th Edition, Farrell),
page 420.
Ben B.
Rubinowitz, a partner at
Gair, Gair,
Conason, Steigman & Mackauf, is an adjunct professor at Hofstra
University School of Law and Benjamin N. Cardozo School of Law. Evan Torgan, a member of Torgan & Cooper, is an
adjunct professor at Cardozo School of Law.
New York Medical Malpractice Lawyers at Gair Gair Conason, Steigman
& Mackauf have more than 40 years experience in representing plaintiffs who have been injured or died as the result of medical malpractice.
