Med Mal Appeal Raises Procedural Issues

Division 1 recently addressed a number of procedural issues in an appeal by Stevens Hospital of a $17 million verdict. Lafferty v. Stevens Memorial Hospital, 2006 WL 3775848 (Wash. App. Dec. 26, 2006)(unpublished), Findlaw link.

Since the opinion is unpublished, it's not of interest as precedent. But the size of the verdict makes it newsworthy (or blogworthy) -- and no doubt affected the decision to appeal (and will affect the decision whether to appeal further).

When Tami Lafferty was about 36 weeks pregnant, she noticed that her fetus was not moving much. Over the next several days, she visited her doctor and the hosptal for various check-ups and tests. It was only after the fetus suffered cardiac arrest that the medical professionals decided to deliver the baby through an emergency caesarean. But by that time, he had been deprived of oxygen so long that he had suffered brain damage, and he is now disabled. The plaintiffs' experts testified that he would not have suffered the brain damage if he had been delivered before the cardiac arrest.

By the time of the appellate decision, the hospital was the only remaining defendant -- individual doctors, a clinic, and an imaging lab had all settled. The hospital argued that the trial court abused its discretion in denying several motions for a mistrial during the course of the trial. Making that case is tough, since trial judges have broad discretion in how they manage trials:

The trial court's decision to deny a motion for mistrial will be overturned only "when nothing the court can say or do would remedy the harm caused by the irregularity[,] or ... when the harmed party has been so prejudiced that only a new trial can remedy the error." In considering a motion for a mistrial based on the misconduct of counsel, the moving party must establish that the conduct "complained of constitutes misconduct (and not mere aggressive advocacy) and that the misconduct is prejudicial in the context of the entire record."

(citations omitted). Here the Court of Appeals was not persuaded that any of the alleged problems below were sufficiently prejudicial to merit reversing the trial court. The issues were:

• Voir dire: Plaintiffs' attorney told the venire that he had won a $13 million verdict against the City of Seattle. Was that impermissibly inviting the jury to return a large verdict? The comment was improper, but the trial court sustained the defense objection and the attorney moved on. The comment was isolated.
• Speaking objections: Both sides sometimes made "improper comments when making evidentiary objections" -- but the trial court dealt with them and they did not deprive the hospital of a fair trial.
• Closing arguments: In context, plaintiffs' attorney's comments were proper. Besides, the hospital didn't object at the time so it "cannot show the remarks were so flagrant and prejudicial that a contemporarneous objection and curative instruction could not have addressed any potential prejudice." (n. 19)
• Shadow jury: The plaintiffs hired a jury consultant who in turn hired three "shadow jurors" to listen to the evidence during the trial (and presumably answer questions from the consultant about what they thought). The consultant did not tell them which side they were working for. At one point during the trial, the three shadow jurors went to the jury lounge to eat their lunch. One of them asked a real juror in the case a question about parking validation. Afterwards, the judge questioned the consultant and the shadow jurors but, contrary to the request of the defense, did not question each real juror individually. The Court of Appeals concluded that the trial court's inquiry was appropriate.
• Evidence that the ultrasound technician was suspended after the incident: The court ruled in limine that the parties would not mention this. But plaintiffs' counsel inadvertently didn't edit out two mentions of it from a videotaped deposition shown to the jury. The court was within its discretion to deal with the problem with a curative instruction.
• Admissibility of personnel file: The hospital argued that it was error to admit certain information from the technician's personnel file because it was allegedly created for a quality improvement committee. Again: no abuse of discretion.
• Spoliation instruction: The hospital didn't like it that the court instructed the jury that "[w]hen a party fails to produce relevant documentary evidence within its control, without satisfactory explanaation, the inference is that such evidence would be unfavorable to the non-producing party." In this case, the missing evidence was a schedule for ultrasounds on the night Ms. Lafferty was supposed to have a special test. The instruction was supported by the evidence -- no error.
• Evidence of future benefits -- OK for the trial court not to let the defense bring in evidence of benefits the child will receive at his state-funded school (in NJ) until he's 21.

See earlier post for a news story at the time of the verdict.