Medical Malpractice

Stephen H. Ringkamp

Medical malpractice defense verdict affirmed.
1.(a) The trial court properly denied a mistrial where objection was sustained and the jury was instructed to disregard a question by defense counsel as to whether the Board of Healing Arts investigated (and perhaps vindicated) the delivering physician. No abuse of discretion in denying mistrial.
  (b) Although there was a dispute as to whether the physician answered the question about whether she was vindicated by the board, where plaintiff failed to ask for relief under Rule 81.15, the court of appeals was bound by the transcript which showed that no answer was given to the question.
  (c) In a footnote, the court of appeals held that such questions as to whether the physician had ever been disciplined by the Board of Healing Arts, or whether this case had been reviewed by the Board of Healing Arts, were absolutely objectionable and inappropriate.

2. Where American College of Obstetrics and Gynecology (ACOG) criteria for labor-induced HIE (hypoxic ischemic encephalopathy) were the subject of cross-examination of plaintiff’s expert, another plaintiff expert agreed the criteria were authoritative, a defense expert testified as to those criteria, and plaintiff offered the entire ACOG document into evidence — all without objection — there was no abuse of discretion in allowing the defendant’s last OB/GYN expert to testify as to those criteria — not a change of opinion.

3. Although a defense expert placental pathologist testified as to general correlations between neurological injury and damage to placental blood vessels, but did not relate that general correlation to the specifics of this case, where there was no objection, the issue was not preserved on appeal. No plain error.

4. During voir dire, the trial judge, without request by counsel or the panel member, unilaterally excused a nursing mother from the panel and made comments such as “Wah. Mama — I’m hungry.” Where no objection was made at the time, nothing was preserved for appeal. Snellen v. Capital Regional Medical Center, No. 75787 (Mo. App. W.D., October 15, 2013). Witt, J.

This medical malpractice case was brought against a hospital for alleged negligence by its employee physician for failure to diagnose signs of fetal distress resulting in HIE (Hypoxic Ischemic Encephalopathy).

1.(a) During direct examination of hospital’s physician, defense counsel asked whether the Board of Healing Arts reviewed the instant medical malpractice claim. Defense counsel had previously asked the physician if she had ever been the subject of disciplinary proceedings by the board. Plaintiff’s counsel objected on the grounds that such questioning violated the Peer Review Statute, Section 537.035. The trial court sustained the objection and instructed the jury to disregard the question and any answer, if given, but denied a request for mistrial.

Held: No abuse of discretion.

(b) Although there was a dispute as to whether the physician answered the question by saying that she had been “vindicated” by the board, the appellate court could not accept the affidavit of plaintiff’s counsel to that effect, where plaintiff’s counsel failed to utilize Rule 81.15 in the court of appeals to request that the trial court certify the true record on appeal. The court of appeals was bound by the record in the transcript as previously certified.

(c) In a footnote, the court of appeals noted that there was absolutely no reason for defense counsel to inquire whether the board reviewed claims of malpractice, whether this claim had been reviewed by the board, or whether the physician had ever had disciplinary action taken against her license. The only purpose of such questioning, in the view of the court of appeals, was to improperly imply to the jury that the board had determined that the physician had committed no malpractice in this case, and was objectionable under Section 537.035.4 precluding admissibility of any such proceedings in any judicial action.

2. During the deposition of the hospital’s OB/GYN “standard of care” expert, that expert stated that he relied on no documents for his opinions, but might at trial. During that deposition, defense counsel brought up the ACOG criteria for labor-induced HIE, and provided a copy to plaintiff’s counsel. Also, more than a year prior to trial, defense counsel sent a letter to counsel for plaintiff advising that various experts would rely upon the ACOG criteria and testify thereto. During trial, one plaintiff expert was questioned on cross-examination regarding the ACOG criteria. Another plaintiff expert agreed the criteria were authoritative. Without objection, a defense expert testified as to the criteria with cross-examination by plaintiff’s counsel who then offered in evidence the entire ACOG document. When the last defense expert, the OB/GYN “standard of care” expert, attempted to testify regarding the ACOG criteria, plaintiff objected on the basis that this was a “change of opinion” from deposition testimony during which the expert testified that he had not “relied on any documents”.

Held: No abuse of discretion - not a change of opinion

The ACOG criteria were properly used to explain a previously given opinion. Also, gratuitously (though not raised at trial), the court of appeals noted the objection on appeal that the ACOG criteria were published in 2003, whereas the birth in question was in 1998. Since the ACOG criteria related to causation, not standard of care, the ACOG criteria were permitted subjects of inquiry though published after the birth in this case.

3. The hospital presented the testimony of an expert placental pathologist as to a general correlation between damage to placental blood vessels and neurological damage, but did not opine as to whether that relationship existed in this case (explaining that it was beyond the scope of the pathologist’s expertise). The pathologist did opine that the neurological problems of the minor plaintiff were not labor-induced and had no identifiable cause, but were consistent with “perinatal problems, perhaps the placenta.” There was no objection during the course of this testimony. After the testimony had been concluded and the witness discharged, plaintiff moved to strike on the basis that the general correlation was not expressed with reasonable medical certainty as applicable to the facts of this case.

Without objection, error was not preserved for appeal — no plain error.

4. During voir dire, one panel member explained to the court that she was a nursing mother and would have to take breaks to use a breast pump. Without request by the panel member, and without a motion from either counsel, the trial court unilaterally excused the juror from service. In so doing, the trial court made some comments (of which the appellate court was critical), apparently with comedic intent, such as “Wah. Mama — I’m hungry.” On appeal, plaintiff contended that such comments denigrated the seriousness of plaintiff’s case.

Held: Where counsel consented to excusing the juror and made no objection to the court’s comments, nothing was preserved for appeal.