How To Use The Lay Opinion In Medical Malpractice
posted on October 4th, 2009 by clintIt is common for the patient’s family and friends to observe changes in the patient’s condition. Those observations may be crucial to supporting your expert’s theory of the case. Lay witness observations may contradict the defendant physician’s account of the medical condition. Physicians and hospitals are acutely aware of the raw power of lay opinions about a patient’s condition. They know that lay opinions can be more compelling than expert opinions. As a result, you will see a motion in limine from physicians and hospitals asking the trial court to exclude all lay opinions about the patient’s condition, the severity of the patient’s condition, or changes in patient’s condition. Trial courts tend to adopt the defendant’s view because they think medical evidence always involves expertise. This is wrong, and don’t fall for it. I submit that Rule 701 is more liberal than the defendants envision. It is your duty to educate and convince the court that Rule 701 allows lay opinions about the patient’s condition. You can stretch Rule 701 beyond the defendant’s simple boundaries.
Suppose family or friends will testify about their observations of the patient before, during, and after his discharge from the hospital. You need this testimony to establish that the physician or hospital staff failed to recognize and treat a change in the patient’s condition. Defendants contend that any attempt by these lay witnesses to establish the severity or change of the patient’s condition in the hospital amounts to impermissible lay evidence. The issue is whether these lay witnesses can testify about what they saw under Rule 701. The rule provides in pertinent part:
If a witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue. TENN. R. EVID. 701.
A lay witness may testify “to the physical condition of another person provided that the witness first states the detailed facts and then gives his opinion or conclusion.” Simpson v. Satterfield, 564 S.W.2d 953, 955-56 (Tenn.1978). Furthermore, “if an opinion is based upon a lay witness’s own observations, his or her conclusions require no expertise and are within the range of common experience, the opinion is admissible.” State v. Tony Samuel, 2007 WL 2026621, at *9 (Tenn.Crim.App.); State v. Turner, 2008 WL 1700338 (Tenn.Crim.App.). Lay opinion testimony under Rule 701 is proper for “observations,” when not based on scientific, technical, or other specialized knowledge, which would qualify the witness as an expert under Rule 702.” State v. Foulk, 2009 WL 47346 (Tenn.Crim.App.) (citing State v. Timothy Murrell, 2003 WL 21644591, at *6 (Tenn.Crim.App.)).
Argue that Simpson and Foulk allow you to admit lay opinions under Rule 701 about the patient’s physical condition if supported by detailed facts. Make sure you establish the detailed facts in response to the motion in limine. You may have to do this by affidavit if there is no deposition of the lay witness. Take the time to do this right. It is important for you to win this motion.