In its decision filed on July 28, 2015, the Connecticut Appellate Court discussed the “open the door” doctrine in the context of a Connecticut medical malpractice defense verdict, concluding that the defendant emergency room physician’s testimony was not admissible as expert testimony and, alternatively, was not admissible under the open the door doctrine, and that the trial court abused its discretion when it denied the plaintiff an opportunity to cross-examine the defendant emergency room physician regarding his qualifications.
The “Open The Door” Doctrine
Although evidence may be otherwise inadmissible, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject. The party who initiates discussion on the issue is said to have “opened the door” to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence.
The purpose of the open the door doctrine is to prevent a party from successfully excluding inadmissible evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the opposing party to place the evidence in its proper context. Under the open the door doctrine, a court must consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit the evidence to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence. Stated differently, the opposing party is allowed to place the initial evidence in its proper context.
The Underlying Facts
On November 15, 2004, the decedent went to a hospital emergency department, complaining of headaches and nausea. The triage nurse noted that the decedent reported that she had headaches for the past four or five days, she had a history of migraine headaches, and she had been “vomiting for the last couple of days on and off associated with atypical migraine type headache for her that started today.” The defendant emergency room physician then performed a physical examination of the decedent and ordered intravenous saline fluid, Pepsid, and Reglan, and later prescribed Toradol to treat the woman’s headache.
The defendant emergency room physician later discharged the woman from the emergency room after her condition improved, diagnosing her with hepatitis and migraine headache and instructing her to follow up with her physician in the next two or three days. The following day, the woman was found to be confused and disoriented and was brought to another hospital’s emergency room, where she was diagnosed as suffering from herpes simplex encephalitis. Despite appropriate treatment with antiviral medication, the woman died several days later from herpes simplex encephalitis.
The Defendant’s Trial Testimony
The plaintiff called the defendant emergency room physician to testify during the medical malpractice trial, asking “‘[y]ou and I are in agreement then, an atypical migraine headache needed to be worked up with a CAT scan and a lumbar puncture. Right?” The defendant agreed that this was the appropriate treatment for an atypical headache. The plaintiff’s attorney then stated: “‘Now, I’m not asking you that as an expert. I’m asking you as a party.”
During the defense portion of the trial, the defendants’ attorney asked the defendant emergency room physician several questions that elicited medical opinion testimony, to which the plaintiff’s attorney objected because the defendant had not been designated or offered as a medical expert, which the trial judge overruled because the plaintiff had allegedly opened the door to the testimony during the plaintiff’s questioning of the defendant.
The Defendant’s Expert Testimony During Trial
The defendant was permitted to testify, over the objection of the plaintiff, whether it was important, when he is assessing someone with a headache complaint, to observe: (1) whether the head is normal-cephalic and atraumatic, (2) the extraoccular eye movements, (3) the cranial nerves, and (4) whether the patient’s eyes are closed. The defendant answered affirmatively, stating that it was important to consider each of the observations, and then explained why each assessment was important in properly diagnosing a patient who presents with a headache.
The defendant was also asked: “‘When a patient complains of an atypical, all one word, headache, are there things that are done to manage that complaint,” to which the defendant responded that “‘after doing a proper physical examination, you generally do some blood tests, and then potentially a CAT scan and a lumbar puncture.”
The defendant was asked: “What are the things you are alert for when a patient complains of [an] atypical headache?” After the plaintiff’s objection was overruled, the defendant stated that “‘[a] patient . . . with an atypical headache is at risk for things like infection of the brain as well as bleeding, as well as things like tumors and masses” and the defendant further testified that the proper method for treating a patient with a typical headache would be to review the patient’s history, “making sure that this is their usual headache; that this is not different than the headache they normally have . . . .”
The defendant was also allowed to testify that the notation “atypical” headache in the emergency room record was a typographical error, and should be read as “a typical” headache.
After the Connecticut medical malpractice jury returned a defense verdict, finding that the plaintiff had failed to prove that the defendant emergency room physician had deviated from the standard of care, the plaintiff appealed.
The Appellate Court Decision
The Appellate Court stated that the plaintiff’s direct examination of the defendant emergency room physician elicited expert testimony regarding the standard of care for a patient complaining of an atypical headache and, therefore, under the open the door doctrine, it would have been proper to allow the defendants’ attorney to elicit testimony regarding the appropriate standard: inasmuch as the presentation of the woman’s headache was a key issue at trial, it would have been appropriate for the defendant to clarify that although an atypical headache required a CAT scan and a lumbar puncture, a traditional migraine headache did not. The Appellate Court also stated that it would have been appropriate for the defendant to testify to the standard of care for a patient complaining of a typical migraine headache.
However, the defense examination of the defendant emergency room physician was not limited to the extent necessary to place his earlier testimony in context – the defendants’ attorney questioned the defendant, over the objection of the plaintiff, regarding medical opinions that went beyond the standard of care issues raised by the plaintiff.
The Appellate Court determined that the trial court erroneously permitted the defendants to present expert testimony without first laying a foundation regarding the scope of the defendant’s expertise (a party who wishes to offer expert testimony must disclose the expert prior to trial and establish their qualifications and skill through foundational evidence). The Appellate Court held that the defendant’s testimony was therefore inadmissible as expert testimony and, alternatively, was not admissible under the open the door doctrine. The Appellate Court concluded that the trial court had abused its discretion in admitting the testimony, reversed the defense judgment, and remanded the case for a new trial.
Source Tiplady v. Maryles, M.D., AC35832.
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