Keys v. Nadel, 325 Or 324 (1997).
The trial court erred by refusing to admit prior consistent statements about the plaintiff’s medical condition to rebut the defendant’s attack on the plaintiff’s credibility. OEC 801(4)(a)(B) provides that a statement is not hearsay if the declarant testifies at trial and the testimony is consistent with that of the witness and is offered to rebut an inconsistent statement or a charge of recent fabrication. Both the defendant and another physician testified that the plaintiff never informed them of her complaints. Plaintiff’s credibility was a key issue and she was entitled to introduce her prior statements to others that were consistent with her testimony that she had told defendant of her complications following surgery.
Ring v. Rogers et al., 144 Or App 509 (1996), rev den, 325 Or 369 (1997).
The estate of a deceased patient brought a medical malpractice action against a physician, alleging that the physician was negligent in failing to recommend coronary bypass surgery as a form of treatment. The trial court admitted testimony that the physician was "considered an aggressive cardiologist who will intervene whenever necessary and early, whether it’s recommending surgery or doing balloon angioplasty-type treatment." The appellate court concluded that even if this testimony was inadmissible character evidence, its admission was not prejudicial. Evidentiary error is not presumed to be prejudicial. The test under OEC 103 is whether the erroneously admitted evidence had some likelihood of affecting the result.
Cunningham v. Montgomery, 143 Or App 171, rev den, 324 Or 487 (1996).
Patient brought a medical malpractice action against a dentist, alleging that the dentist negligently administered nitrous oxide causing patient to suffer hypoxia and cognitive defects. The trial court improperly excluded the testimony of the patient’s expert as to medical causation of the patient’s injuries on the grounds that the expert, a neuropsychologist, was not a medical doctor. OEC 702 does not require that an expert witness on a medical subject be licensed to practice medicine. A person may be qualified as an expert where that person has specialized training and experience that could assist the jury. The field of specialization of a competent medical witness affects the weight to be given to the testimony, not its admissibility.
Foxworth v. Emanuel Hospital, 131 Or App 110 (1994), rev den, 320 Or 507 (1995).
It is reversible error to admit evidence of a prior settlement between the plaintiff and one of the defendants unless evidence of the settlement has independent relevance to the issue of liability.
Pounds v. Holy Rosary Medical Center, 127 Or App 221 (1994).
Minor plaintiff brought a medical malpractice action against a hospital and an obstetrician. The defendant hospital settled with the plaintiff before trial. During trial, the defendant obstetrician offered into evidence the plaintiff’s original complaint which included allegations against the hospital. The trial court ruled that the original complaint was admissible. During cross-examination of the plaintiff’s guardian ad litem, the defendant elicited that the plaintiff had settled his claims against the hospital. Evidence of the plaintiff’s settlement with the hospital was inadmissible to disprove the validity of plaintiff’s claim against the defendant obstetrician. Admission of the prior pleadings in the case did not make the evidence of plaintiff’s settlement with the hospital independently relevant. OEC 408 (1)(a) provides that evidence of settlement is not admissible to prove liability for or invalidity of a claim or its amount. However, evidence of a settlement is admissible if the evidence is relevant to prove another issue in the case, such as bias or prejudice of a witness. OEC 408(2)(b); Holger v. Irish, 316 Or 402 (1993).
Bremner v. Charles, 123 Or App 95 (1993), rev den, 318 Or 381 (1994).
Mother brought a medical malpractice action alleging that her child suffered brain damage as a result of negligent care received during her pregnancy, labor and delivery. Where the defendant challenged the truthfulness of the mother’s statement that she informed her physician about the fetus’ lack of movement during pregnancy, the defendant implied that the mother had recently fabricated the story. Trial court’s exclusion of witnesses testimony that would have rebutted the charge of recent fabrication was reversible error.
Bremner v. Charles, 104 Or App 75 (1990), rev all’d, 123 Or App 95 (1993).
A mother and her child sued an obstetrician for allegedly negligent treatment during the mother’s pregnancy, labor, and delivery. The trial court bifurcated the issues of liability and damages and excluded the three-year old plaintiff from the courtroom. The Court of Appeals held that the bifurcation of the trial coupled with the exclusion of the child plaintiff from the courtroom deprived the plaintiffs of a fair trial. Reversed and remanded.
A trial court’s decision to bifurcate a trial under ORCP 53B is reviewed for abuse of discretion. A threshold requirement for bifurcating a trial is that the issues at each stage be separate. On appeal, the plaintiff argued that the issues of liability and damages were intertwined and could not be separated. The Court of Appeals did not find an abuse of discretion as to this requirement. A second requirement of ORCP 53B is that a case may be bifurcated only "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy." The Court of Appeals concluded that although the bifurcation might have resulted in a shorter trial and relieved defendants of the need to reschedule witnesses, the bifurcation required plaintiffs to juggle their witnesses’ schedules, prevented plaintiffs from presenting the nature of damages to the jury and forced plaintiffs to reevaluate trial strategy the morning of trial. Trial court erred in bifurcating the trial.
The exclusion of a party from trial is an extreme measure and must be viewed with caution. In this case, the trial judge had not seen the child and had no evidence that his appearance would be disruptive.
Stumpf v. Continental Casualty Co., 102 Or App 302 (1990).
Admissibility of Medical Peer Review Findings
Physician brought an excess liability case against its insurer for negligent investigation, evaluation, and negotiation of a medical malpractice claim. Insurer was not entitled to refer to or examine witnesses about the peer review committee which reviewed the underlying case against the insured physician. ORS 41.675 provides that communications submitted to the peer review committee or findings of that committee are privileged and are not admissible in any judicial proceeding. The insurer intended to offer the testimony of a member of the peer review committee that the committee reviewed the care given by insured physician and that such review affected the insurer’s evaluation of the underlying case. The court held that such testimony was inadmissible because the necessary inference is that the case was defensible which would convey the substance of the committee’s findings.
Jefferis v. Marzano, 298 Or 782 (1985).
The trial court did not err in denying plaintiff’s objections regarding the defendant physician’s opinion about the appropriateness of a medical administrative practice because the opinion was properly based upon conversations with other physicians, attending staff meetings, observing other specialists' practice, and reading literature.
Counsel should not express personal opinions on the facts of a case or give unsworn testimony about essential aspects of a case at any time, but especially before the jury.
State ex rel Grimm v. Ashmanskas, 298 Or 206 (1984).
Physician-Patient Privilege
Plaintiff's discovery deposition of a defendant treating physician in a malpractice action constitutes a waiver of the plaintiff's physician-patient privilege with respect to other treating physicians concerning the same conditions.
Creasy v. Hogan, 292 Or 154 (1981).
It is improper for the trial court to read a dictionary definition of a technical word referred to in testimony once deliberations have begun.
Expert testimony regarding the witness’s knowledge of the "standard of care" or the "standard of skill" is not proper. Expert witness should testify to his or her knowledge of the methods of customary and proper medical treatment in same or similar community.
Roach v. Hockey, 53 Or App 710, rev den, 292 Or 108 (1981).
Best Evidence Rule
The purpose of the best evidence rule is to get the most reliable information as to the content of a document when the contents are disputed. Trial court did not err in admitting a xerox copy of a release form because there was no dispute that the release had been executed or that the copy was inaccurate.
Prior Consistent Statement
Trial court properly allowed into evidence a letter from the defendant’s expert to the defendant’s attorney setting forth the expert’s opinions. Letter was offered by the defendant as a prior consistent statement of the expert, after plaintiff attempted to impeach defendant’s expert with an earlier letter in his file which stated that he did not know the cause of plaintiff’s injury.
Travis v. Unruh, 66 Or App 562, rev den, 297 Or 82 (1984).
Learned Treatise
Defendant opthamologist appealed from a jury award for the plaintiff. Court of Appeals affirmed, holding that although the trial court erred in admitting a learned treatise as substantive evidence, the error was not prejudicial, as the evidence was merely cumulative of previous expert testimony on the same subject. Learned treatises are not admissible as substantive evidence, but may be used for the purpose of impeaching a witness on cross-examination.
Spray v. Board of Medical Examiners, 50 Or App 311, rev den, 291 Or 117 (1981).
Discipline of Physicians
Oregon Board of Medical Examiners revoked the license of a physician after making findings of fact that the physician failed to comply with the standard of care set forth in ORS 677.095. Court of Appeals reversed. ORS 677.095 addresses standards relating to medical malpractice, not license revocations. The Board erred in utilizing and considering ORS 677.095 in its Findings of Fact.
Wagner v. Kaiser Foundation Hospitals, 285 Or 81 (1979).
Plaintiff allegedly suffered permanent brain damage when he was deprived of oxygen while in a post-surgery recovery room. Plaintiff sued the hospital and a number of providers.
In determining whether to strike an allegation of negligence from the complaint, it is not the function of the trial court to weigh the evidence. If an allegation is supported by any competent evidence, including the testimony of one witness, it is the sole function of the jury to decide whether to believe the testimony of that witness.
Rebuttal Testimony
The trial court has discretion to allow in rebuttal testimony which becomes relevant in rebuttal, even though the testimony could have been used in the party's case-in-chief. See ORS 17.120 and ORS 17.125. The trial court did not err in admitting additional expert testimony offered by the plaintiff in rebuttal.
Exclusion of Witnesses
Kaiser defendants contended that the trial court erred in excluding from the jury anyone who was a member of the Kaiser health plan. The Supreme Court held that the trial court did not err because members of a group health care plan that is being sued may believe that they have a financial interest in the outcome due to a concern that their premiums or payments might be increased in the event of a verdict in favor of the plaintiff. Defendants failed to preserve a constitutional objection as to whether the trial court created a jury that was not composed of a fair cross-section of the community.
Adams v. Spoelstra, 279 Or 65 (1977).
Plaintiff appeals a jury verdict for the defendant in a medical malpractice case alleging that the defendant osteopath was negligent in failing to diagnose a bladder obstruction. Plaintiff failed to preserve several issues for appeal because the plaintiff failed to make objections during trial or to make an offer of proof. Plaintiff’s offer of the entire deposition of plaintiff or reading portions of it during closing argument was not timely. The trial court did not err in refusing to given an instruction that physicians must keep up-to-date in their medical knowledge because the instruction was abstract. Where the trial court read all of plaintiff’s allegations of negligence to the jury and explained the standard of care in medical malpractice cases, the trial court did not err in refusing to give instructions on the individual allegations of negligence.
Samuel v. Vanderheiden, 277 Or 239 (1977).
Hypothetical questions
Plaintiff alleged that the defendant physician was negligent in failing to diagnose breast cancer. On cross-examination, the plaintiff asked the defendant’s expert to assume certain facts that the plaintiff had testified to were true and to render an opinion based on the hypothetical question. The defendant objected to the hypothetical question on the grounds that it did not include all of the facts in evidence, including the entire testimony of the defendant. The trial court erred in sustaining the defendant’s objection to the use of a hypothetical question on cross-examination of the defendant’s expert. A hypothetical question does not need to include all of the facts in evidence, but may be based upon any fair combination of facts supported by the evidence. If a hypothetical question is unfair or confusing, an objection may be made on that basis and the question reframed to supply an adequate basis. A party should be given great latitude on cross-examination of an expert whose opinion has been elicited on direct examination by a question which does not specify the basis of the opinion.
Hansen v. Bussman, 274 Or 757 (1976).
Trial court did not err in submitting plaintiff’s allegation that her hip dislocation was caused or worsened by the defendant’s failure to diagnose and treat the hypothyroidism. In determining whether to withdraw an allegation from consideration by the jury, it is not the function of the trial court to weigh conflicting evidence. If an allegation is supported by any substantial evidence, including the testimony of one witness, it is the function of the jury to decide whether or not to believe that testimony. The only evidence offered in support of plaintiff’s allegation was the deposition testimony of the defendant, which the defendant explained or corrected during trial. Defendant argued that the his trial testimony destroyed the probative value of his prior deposition testimony. Therefore, there was not substantial evidence to support plaintiff’s allegation. Where the previous testimony involved is in the form of an opinion of a party defendant, the trial court should be particularly careful about refusing to permit the previous testimony on the grounds that the defendant has now corrected or explained the opinion.
The trial court did not err in denying defendant’s motion for a directed verdict on the grounds that plaintiff’s damages were speculative. Plaintiff offered evidence that if the defendant had diagnosed plaintiff with hypothyroidism within the first six to 14 months, it was reasonably probable that her mental retardation would not have been as substantial. In cases involving personal injuries, the plaintiff only has to establish that the injuries were the probable result of defendant’s negligence.
Libbee v. Permanente Clinic, 269 Or 543 (1974).
Plaintiff brought an action for medical malpractice against physicians who performed a caesarean section. Trial court correctly granted plaintiff’s motion for a new trial where jurors were allowed to consider an exhibit which had not been received in evidence and which was prejudicial. After deliberations had commenced, it was discovered that the jurors had been given the entire file of one of plaintiff’s physicians which contained allegations of negligence from a previous trial for the wrongful death of plaintiff’s child as a result of the caesarean section. The exhibit was not received in evidence. The Supreme Court deferred to the trial court’s finding that the plaintiff was prejudiced by the jurors knowing that the plaintiff had brought two claims against the same physicians which appeared conflicting: one for her injury and one for wrongful death of the stillborn child.
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