Testimony on Whether Doctor “Did Her Best” Excluded in Medical Malpractice Case

In Bradley v. Bishop, No. W2016-01668-COA-R3-CV (Tenn. Ct. App. Mar. 30, 2017), the Court of Appeals affirmed a jury verdict for defendants in a health care liability case.

For eight years, plaintiff had been treated for a fibroid in her uterus that caused extensive bleeding. In 2012, another fibroid was discovered, and after an unsuccessful surgery to remove the fibroid, plaintiff decided to undergo a hysterectomy. Defendant doctor recommended a laparoscopic hysterectomy, but warned plaintiff that she might have to convert to an open procedure. During the surgery, defendant did convert to an open procedure. Defendant called for surgical back-up, but no one was available, and defendant determined that she could complete the procedure herself. During the procedure, defendant noticed a “superficial cut” on plaintiff’s colon, but she did not see or notice any signs of a bowel injury. In the days following the hysterectomy, plaintiff’s “condition deteriorated,” and she was eventually diagnosed with a bowel injury which required surgical repair, three weeks of hospitalization, and additional procedures in the following years.

Plaintiff filed this suit, alleging that defendant “negligently caused injury to [plaintiff’s] small bowel.” Throughout the litigation, causation was not contested, as defendant admitted that the bowel was injured during the surgery. Whether defendant’s actions met the applicable standard of care, however, was hotly contested, with several experts testifying for both sides. Plaintiffs’ experts testified that defendant had fallen below the standard of care, that a different type of hysterectomy would have been more appropriate, that defendant had made mistakes during the surgery, and that defendant should have noticed the bowel injury. Defendants’ experts, however, testified that the chosen procedure was appropriate, that defendant acted in accordance with the standard of care at all times, and that bowel injuries were a common complication of hysterectomies and could occur even when the surgery was done appropriately. Ultimately, the jury returned a verdict for defendant, finding that defendant “did not deviate from the recognized standard of care,” which the trial court affirmed as thirteenth juror. On appeal, the Court of Appeals also affirmed.

In its opinion, the Court addressed several issues raised by plaintiff. First, plaintiff took issue with the trial court granting defendant’s motion in limine to exclude a portion of a defense expert’s deposition testimony wherein plaintiff’s lawyer repeatedly asked about defendant doing “her best” and providing “the best care possible.” While deposing one of defendant’s experts, plaintiff’s counsel asked in several different ways if doctors should “attempt” to “do his or her best for the patient under the circumstances presented.” During this line of questioning, the expert at one point responded that the he did not believe that doing one’s best was “part of a standard of care definition,” and that the applicable standard was “what a reasonable and prudent doctor, under similar circumstances, would do in that situation.” Defendant successfully moved to have this whole portion of the deposition testimony excluded, and the Court of Appeals affirmed this ruling.

The Court noted that while relevant evidence should be admissible, even relevant evidence that might cause “confusion of the issues, or [mislead] the jury” could be excluded. Tenn. R. Evid. 403. In this case, the Court found that the references to the “best possible care” were rightfully excluded because “they did not comply with the standard of care as defined under Tennessee’s health care liability statute.” The Court reasoned:

Here, the excluded portion of [expert’]s testimony creates serious confusion as to the proper standard applicable in this case and therefore does not substantially assist the jury in determining the dispositive question before it: whether [defendant] breached the standard of care in her treatment of [plaintiff]. …[Plaintiffs] agree that the “best possible care” and “doing the best she could” connote subjective standards. As such, any testimony regarding the “best possible care” or [defendant] “doing the best that she could” would require the jury to judge [defendant] by a more arbitrary subjective standard than required by Tennessee law….[A]ny evidence of whether [defendant] did “the best she could” has little bearing on whether [defendant] acted with ordinary and reasonable care. ….Consequently, such evidence would only serve to confuse the jury[.] …Additionally, evidence regarding whether [defendant] provided the “best care possible” imposes upon [defendant] far too stringent a standard. …[T]he requisite standard of care does not require that a physician deliver the best possible care but rather “ordinary and reasonable care” under the circumstances.

In addition to being confusing, the Court also noted that the excluded portion would likely be more beneficial to defendant than plaintiff, as the expert stated that he believed defendant doctor did her best in this case. The Court pointed out that plaintiff was thus not prejudiced by the exclusion of this testimony. For both of these reasons, exclusion of this portion of the expert’s deposition was affirmed.

Next, plaintiff argued that the trial court did not give an appropriate curative instruction following defendant’s opening statement. During opening statements, defense counsel stated:

We all know—we’ve all been to doctors over the years and they exercise their best judgment and they do the best they can, and it does not always—you know, a few blocks from here they are trying to save—a miracle to save children’s lives at St. Jude, and many times it happens, and many times today some children are going to die, okay? It’s not perfection. It is not perfection.

Following opening statements, the trial court gave a curative instruction noting that “those statements are not evidence in this case,” and that the only evidence to be considered would be sworn testimony, exhibits, and any stipulations. After this curative instruction, plaintiff did not move for a mistrial.

Regarding this issue, the Court of Appeals found that “although [defendant’s] reference to St. Jude and children with cancer during opening statements is arguably indecorous, the trial court’s choice of instruction effectively clarified any possible confusion that proof of St. Judge or children with cancer would be introduced over the course of trial.” The Court noted that there was nothing in the record to indicate that the jury did not follow this curative instruction, and that neither St. Jude nor children with cancer was ever mentioned again in the nearly two week trial. Further, plaintiff failed to request a mistrial at the time the statement was made. Considering all of these factors, and noting that it “fail[ed] to see how one passing reference to St. Jude and children with cancer during opening statements…had any effect on the jury’s verdict,” the Court held that the trial court “did not err in denying [plaintiff’s] motion for a new trial on this basis.”

Finally, plaintiff asserted that the jury verdict was not supported by the evidence. The Court of Appeals held, though, that while plaintiff introduced expert testimony that defendant fell below the standard of care, defendant introduced conflicting expert testimony that the standard of care was met. The Court held that since there was expert testimony in the record supporting the theory that defendant acted within the standard of care in every aspect of plaintiff’s care, “it is not our prerogative to re-weigh the evidence presented or asses the witnesses’ credibility.” Accordingly, the verdict for defendants was affirmed.

One important take-away here is to be sure to frame any standard of care testimony that you hope to introduce at trial in the correct terms. The HCLA has a specific standard of care written into the statute, and failure to at least loosely follow its definition may result in testimony being excluded.  The other important take-away is that some cheap shots – like the reference to doctors trying to save cancer-stricken children in a case that had nothing to do with children or cancer – won’t necessarily result in reversal of a jury verdict.  The standard of review – did the conduct more likely than not impact the jury’s verdict – is a high one.  Of course, that does not sanction and should not encourage cheap shots which, admittedly, in the heat of the moment any lawyer can inadvertently launch.

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