Chapter 4.B.3 --Forensic Medicine, Medical Evidence, and Discovery
The supplemental materials on this page include:
Notes relevant to all casebook editions
of practice guidelines can be located at the National Guideline Clearinghouse,
maintained by AHRQ.
See Aaron Kesselheim, et al., Will Physician-Level Measures of Clincal Performance be Used in Medical Malpractice Litigation?, 295 JAMA 1831 (2007).
For more on the new federal peer review privilege, see Comment, 11 MSU J. Med. & L. 177 (2007); Note, 17 Health Matrix 319-345 (2007); Note, 4 Ind. Health L. Rev. 151-172 (2007). Questioning the need for this law, see Stephan Landsman, Reflections on juryphobia and medical malpractice reform, 57 DePaul L. Rev. 221-241 (2008):
the major push from within the medical establishment has not been for internal changes to address medical errors, but rather for capped damage awards for those most severely injured by medical malpractice, as classified by the legal system. . . . the healthcare industry's virtually single-minded preoccupation with lawsuits and large monetary awards whenever the question of error arises. This Article refers to that preoccupation as “juryphobia,” because the fear of jury action that appears to be at its core has been the healthcare industry's primary justification for resisting reform. This Article begins with an examination of the rhetoric of juryphobia and its impact on reform proposals. It then suggests the utility of an empirical examination testing the claims of those who fear that change will lead to a massive increase in the number and size of malpractice jury awards.
continuing confusion over the scope of state peer review privilege
statutes, see: Powell v. Community Health Systems Inc., _____ (Tenn. 2010) (reversing decision that privilege doesn’t cover monthly infection control report); Lee Medical Inc. v. Beecher, __ S.W.3d ___ (Tenn. 2010)
(privilege doesn’t cover hospital's audit of its vascular services,
unrelated to a specific incident); Hospital Authority of Valdosta &
Lowndes County v. Meeks, _______ (Ga. 2009)
Notes relevant only to softbound edition
Taking a different view of ex parte contacts between
defense counsel and plaintiffs' physicians, the high court in New York ruled
that such contacts are not only permissible, they are to be encouraged in the
interests of litigation efficiency. Arons v. Jutkowitz, 880 N.E.2d 831 (N.Y. 2007).
There is debate over whether the HIPAA federal privacy rule might affect state law on ex parte communications. See Beverly Cohen, Reconciling the HIPAA Privacy Rule with State Laws Regulating Ex Parte Interviews of Plaintiffs' Treating Physicians, 43 Hous. L. Rev. 1091 (2006). The Georgia Supreme Court, for instance, ruled that HIPAA prevents a defense lawyer from informally interviewing the plaintiff's other treating physicians, even though Georgia state law would allow this ex parte communication. Moreland v. Austin, 670 S.E.2d 68 (Ga 2008).
Other courts have held that HIPAA is no bar if ex parte communications occur under judicially-issued protective orders (which set the allowable conditions and scope for informal discovery). Holman v. Rasak, _______ (Mich. 2010); In re Collins, ________ (Tx. 2009).
has published a compelling book recounting the history, science and law
of judicial acceptance of genetic identification in criminal
cases: The Double Helix and the Law of Evidence (Harvard Univ.
Regarding forensic use of clinical genetic tests, see Diane E. Hoffmann & Karen H. Rothenberg, Judging genes: implications of the second generation of genetic tests in the courtroom, 66 Md. L. Rev. 858-922 (2007):
Assume you are a judge presiding over the following two cases:
1. In a non-capital sentencing proceeding of a twenty-eight-year-old man
convicted of a violent homicide, the prosecutor requests that you compel the
defendant to have a genetic test for a gene mutation that predisposes an
individual to exhibit bouts of extreme rage. Between fifty and sixty percent of
individuals with this mutation exhibit these behavioral abnormalities before
the age at which the defendant committed the crime. With this test result the
prosecutor wishes to show that the defendant has a proclivity toward violence
(“future dangerousness”). The defendant objects to being compelled to have the
Case 2. In the damages phase of a products liability case, the defendant requests that you compel the twenty-one-year-old plaintiff to have a genetic test *860 for Neurofibromatosis type II (NF-2), as his father died of the disease at the age of forty. NF-2 is a rare, inherited disorder characterized by the development of benign tumors on both auditory nerves and by the development of malignant central nervous system tumors. The disease is unrelated to the injury caused by the defendant's product. Virtually everyone who has the mutation develops the disease; however, the severity of symptoms differs from person to person, and the gene is not predictive of such disparities. An expert testifies that the average age of onset of NF-2 is between eighteen and twenty-four and that the average age of death of those with the disease is thirty-six. At present, the plaintiff has no symptoms of the disease.
Would you compel the test in either case?
Soon, judges across the country may face questions similar to the ones posed by these two hypothetical scenarios.
In separate opinions, the Florida and the Oregon Supreme Courts decided that the Frye/Daubert tests cannot be used to exclude causation testimony that is otherwise admissible, since it is based simply on medical opinion and conventional clinical reasoning. Marsh v. Valyou (Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007)(per curiam).); Marcum v. Adventist System/West, 345 Or 237, 244, 193 P.3d 1 (2008).
Neuroimaging (or brain imaging) using techniques such as PET scanning is a rapidly growing new area of forensic medicine. See generally Symposium, Am. J. L. & Med. 163 (2007).
On forensic science generally, see Symposium: Forensic Science for the 21st Century. 50 Jurimetrics J. 1-110 (2009).
These two problems can be used to test your understanding of various evidentiary and procedural issues in malpractice litigation.
Problem: Practice Guidelines
Jane Austere is a 62 year old female with a history of severe diabetes and high blood pressure. She lives in a small town in a rural county of a state that follows the national standard of care for specialists. Following surgery on her left knee performed under general anesthesia at the local public hospital, she was suddenly unable to speak normally. This is consistent with brain damage caused by decreased oxygen to the brain, among other possible causes. Jane brings a medical malpractice action against her anesthesiologist.
Several national organizations have issued guidelines for monitoring ventilation (breathing) during surgery. Two years before Jane's operation, the anesthesiology department at the hospital studied all these guidelines and adopted the following as its view of the best compromise among all their various nuances:
Every patient receiving general anethesia shall have the adequacy of ventilation evaluated regularly and frequently. Quantitative monitoring of the CO2 content and the volume of expired gas is encouraged, but not required. . . . These guidelines are not intended to displace the physician's discretion to conform treatment to the particular clinical circumstances of the individual patient.Jane's anesthesiologist admits that he did not perform quantitative measures of CO2 and volume of exhaled air because he considers visual observation of breathing to be sufficient in all cases. Jane's expert testifies that she could have suffered decreased oxygen because her breathing slowed or paused for a minute or two. In his opinion, quantitative measures are advisable for a patient in Jane's condition. The hospital had recently purchased new equipment that can make these measures continuously and much less obtrusively than was the case before.
The defense lawyer tries to introduce this hospital guideline as evidence of the standard of care. What objections are likely, and what response would you make? If the guidelines were admitted, what instruction should the judge give to the jury, assuming this jurisdiction follows a national standard of care?
Review Questions: Defense Privileges
Recall the scenario in Samaritan Foundation v. Goodfarb, supra, in which nurses observed an anesthesia mishap but, two years later at trial, could not remember what they had seen. What objections could be raised when the plaintiff attempts to present the following documents to refresh their recollection, and what would the likely rulings be, if:
(a) The nurses gave statements at the time to hospital risk managers who were conducting an incident report.
(b) The nurses gave statements to a hospital quality assurance committee reviewing the anesthesiologist's performance over the past two years.What if the nurses can remember at trial what happened two years ago, but they gave statements to the hospital's credentialing committee, which was considering whether to renew the anesthesiologist's medical staff membership? Could the defense lawyer claim a peer review confidentiality privilege?
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