Kelly on Malpractice

The use of medical treatises or literature is a many splendored thing. You want the treatise to testify as the witness that does not lie, take money, or have a bias for one side or the other. However, the treatise cannot be intorduced as evidence at trial because it may not be used substantively. The practical application of Tenn.R.Evid 618 to a complex medical malpractice case can be challenging. The indispensible predicate for the use of medical treatises is the “reliability” of that treatise established by some expert. It does not have to be the expert on the witness stand. Nevertheless, an expert must establish that the treatise is reliable or else it may not be used to impeach anyone. Nothing is as uncomfortable as having highlighted literature ready to read the expert, and being foreclosed from using it because no expert has established the reliability of the treatise. It is not enough to establish reliability generally. The cross examiner must establish the reliability of the specific article or chapter in the text or publication. Otherwise, the expert may say that the treatise is reliable generally but cannot be relied on chapter by chapter. We will revisit Rule 618 frequently throughout this case.

We have put on proof for the last few days. Our second Ob/Gyn expert is testifying. These cases are very emotional and scientifically challenging. The press was here at the opening statements. There were two articles in the local newspaper. Fortunately, none of the jurors saw the articles. We have a learned trial judge who is doing an outstanding job being fair to all parties. The stakes are high, and it seems that the jury knows it. The use of projectors and multiple computers is essential to the effective presentation of the case in chief. Models of forceps, vacuum extractors, and a rubber pelvis with baby make good demonstrative aids. The proper use of medical literature is also essential to narrowing the obstetrical fact issues. All of us are learning a lot about the delivery process and just how fragile life is. Moreover, no one can know what goes on in the minds of the jury. We can sense a momentum. Call it wind at your back.

It is vital in a complex case like this to take your time examining witnesses. Take time to define terms and show surgical maneuvers. Take the hospital chart and show the format because the jury will revisit it often. We started the case off with a damages witness who was virtually unimpeachable. This set the tone for what the case was about - a severely injured child who needs help. The fault of the hospital and doctor have consumed the rest of the case at this point.

We just started opening statements in a medical negligence trial in Murfreesboro. It is a birth trauma case against the Ob/Gyn and hospital wherein the child suffered a brain bleed and oxygen deprivation during the delivery. The child has cerebral palsy and is severely jandicapped. She cannot speak, walk, sit up, or feed herself. The child’s lifecare plan costs $12 million. The voir dire lasted 5 days due the “hot-button” issues in the case. The nurse has a drug history. The nurse also had an affair with another Ob/Gyn on the Labor & Delivery Unit. The Ob/Gyn is alleged to have rushed the delivery with instruments that damaged the baby’s head. This has been a major case from the genesis, perhaps because the stakes are high. We had a two-day PTC, 100 plus motions in limine, and 30 plus healthcare witnesses. The first witness goes on today.