July 18, 2012

On June 25, 2012, the Court of Appeals of Tennessee (“Appeals Court”) ordered a new trial for the plaintiffs in a medical malpractice case involving a newborn born with severe brain injuries allegedly due to medical malpractice. The original medical malpractice jury had returned a verdict in favor of the medical malpractice defendants but the Appeals Court determined that several prejudicial errors committed during the original trial entitled the plaintiffs to a new trial before a new jury.

The Appeals Court determined that the trial judge committed prejudicial error when he allowed the medical malpractice defendants’ lawyer to mention to the jury during his opening statement that the Plaintiff’s mother had returned to the defendant doctor for a subsequent pregnancy and when the trial judge decided that it was admissible evidence in the trial. The Appeals Court disagreed and held, “We agree with Plaintiff that the fact that Plaintiff’s mother returned to Dr. Shine after Plaintiff’s birth is irrelevant to the issue of whether the defendants, and specifically Dr. Shine, committed medical malpractice in connection with Plaintiff’s birth. As such, it was error to admit this evidence. Furthermore, even if the evidence that Plaintiff’s mother returned to Dr. Shine might somehow be even slightly relevant to the issues involved in this suit, the probative value of this evidence is substantially outweighed by the danger of unfair prejudice.”

The Appeals Court also held that the trial judge committed prejudicial error when he limited the Plaintiff’s lawyer to 30 minutes in cross-examining the Defendant doctor. The Appeals Court stated, “Dr. Shine is a party defendant in a complex medical malpractice action, and it was unreasonable given the facts and circumstances of the case to set the limit of an additional thirty minutes on Plaintiff’s cross-examination of Dr. Shine. The fact that Plaintiff had introduced portions of Dr. Shine’s videotaped deposition during her case-in-chief was immaterial. The cross-examination of a witness, especially a witness who is a party to the lawsuit, is not the same thing as presenting a portion of that witness’s deposition in the case-in-chief. Cross-examination of a party witness serves a very different purpose from that of introducing evidence in a party’s case-in-chief. The primary purpose of a plaintiff’s cross examination of a party defendant is not to prove the elements of the plaintiff’s cause of action, but rather to “clarify, qualify, or undercut [the party defendant’s] testimony on direct examination, impair its effectiveness, or affect the inferences the trier-of-fact might draw.”

The Appeals Court was also critical of the trial judge “making potentially disparaging comments about Plaintiff’s case in front of the jury. During the exchange between Plaintiff’s counsel and the Trial Court about the cross-examination of Dr. Shine and in the jury’s presence, the Trial Court stated: “Well, why did you waste two hours of our time playing questions that you’re going to ask of her before?” Plaintiff asserts on appeal that this comment about wasting time was “implying (if not asserting outright) that the minor Plaintiff’s claims were a ‘waste’ of the Court’s and the jury’s time.” We agree. At a minimum, the Trial Court’s comment, however unintentionally, implied that Plaintiff’s counsel’s questions and, therefore, also the witness’s answers to those questions, were a waste of time and unimportant. While this comment alone may not have risen to the level of reversible error, it was potentially prejudicial and, when considered together with the other errors as discussed in this Opinion, resulted in the Plaintiff being denied a fair trial.”

The Appeals Court chastised the Defendant hospital’s attorney’s reference to the Plaintiff’s attorneys being from out-of-state: “We next consider whether the Trial Court erred in allowing references by the Hospital’s counsel to the fact that Plaintiff’s counsel was from Maryland after the Trial Court had granted Plaintiff’s motion in limine to prevent such information from being presented to the jury. A careful and thorough review of the record on appeal reveals instances in which defense counsel pointed out that Plaintiff’s counsel was from out of state…we find it was error to allow these references. Upon remand, all parties are instructed to comply with the Trial Court’s ruling on the motion in limine and refrain from making any statements or asking any questions which point out to the jury the irrelevant fact that Plaintiff’s counsel is from out of state.”

The Appeals Court concluded its opinion by stating, “The combined errors of allowing the introduction of irrelevant evidence regarding Plaintiff’s mother’s return to Dr. Shine, severely limiting Plaintiff’s cross examination of Dr. Shine, making potentially disparaging comments about Plaintiff’s case, and allowing irrelevant references to the fact that Plaintiff’s counsel was from out of state resulted in Plaintiff being denied a fair trial. As such, we vacate the Trial Court’s judgment and remand this case for a new trial in compliance with this Opinion.”

Source Zona Mayo v. Donna L. Shine, M.D. et al., Case No. E2011-01745-COA-R3-CV

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