Chapter 4.B.3--Forensic Medicine, Medical Evidence, and Discovery

The supplemental materials on this page include:

Additional Notes about Forensic Medicine and Epidemiological Evidence

For thoughtful analysis of the application of Daubert to medical opinion testimony on causation, see Note, Navigating Uncertainty: Gatekeeping in the Absence of Hard Science, 113 Harv. L. Rev. 1467 (2000).

Additional analyses of forensic medicine topics can be found at:   Edward J. Imwinkelried, The admissibility and legal sufficiency of testimony about differential diagnosis (etiology): of under-and over-estimations, 56 Baylor L. Rev. 391-421 (2004).

Sample medical records in McCourt v. Abernathy

Emergency Department Record,
History and Physical,
Progress Record,
Daily Nurses Record,
Medication Administration Record,
Clinical Laboratory Report

Miscelaneous Notes about Sources of Medical Evidence, Qualification of Experts, and Discovery Rules.

 Examples of practice guidelines can be located at the National Guideline Clearinghouse, maintained by AHRQ.  For additional legal analysis, see Carter L. Williams, Evidence-Based Medicine in the Law Beyond Clinical Practice Guidelines: What Effect Will EBM Have on the Standard of Care?, 61 Wash. & Lee L. Rev. 479 (2004).

Regarding professional disciplinary actions against expert witnesses for testimony judged to be inappropriate, see Fred L. Cohen, The Expert Medical Witness in Legal Perspective, 25 J. Leg. Med. 185 (2004).

Regarding the evidentiary privilege for peer review materials, see  Lisa M. Nijm, Pitfalls of Peer Review, 24 J. Legal Med. 541 (December 2003).

In Boehm v. Mayo Clinic Rochester, 690 N.lW.2d 721 (Minn. 2005), the court refused to allow a nurse practitioner to testify about the standard of care for restraining the head movement of a patient after surgery by a thoracic surgeon.  Reciprocally, in Sullivan v. Edqard Hospital, 806 N.E.2d 645 (Ill. 2004), the court refused to allow a physician to testify about the standard of care for nurses in restraining a patient from falling out of bed.

Federal Patient-Safety Discovery Privilege.  The concern that the threat of liability deters reporting medical errors and therefore hampers quality improvement led recently to Congress adopting a discovery privilege and liabilitiy protection in the Patient Safety and Quality Improvement Act of 2005 (P.L. 109-41).  This protects from discovery any reportsof medical errors made by health care providers to certified "patient safety organizations," such as the Joint Commission (JCAHO).  However, any such records must be maintained only for patient safety evaluation purposes, and not for patient care or billing purposes. 

Where the attorney-client or work product privilege applies, substantial controversy exists over how broadly it should extend, in the context of large corporations such as hospitals that have many employees. Corporations, like individuals, must be able to seek legal advice and prepare a defense, but because mistakes in medical treatment occur entirely within the confines of the defending institution, there are unlikely to be many witnesses who are not employees. Therefore, the corporate attorney-client privilege could severely hamper a plaintiff's ability to investigate and prove an allegation of medical malpractice. To balance these concerns, the Arizona Supreme Court in one case took the position that hospitals may claim attorney-client protection only for information gathered from potential defendants, that is, employees concerned about their own liability. A hospital may not protect information from employees who merely witnessed the potential wrongdoing of others. The court was unimpressed with the hospital lawyers' attempt to categorize employee witnesses as "clients" by having them sign a form agreeing to be represented by the lawyers in the event of suit. Samaritan Foundation v. Goodfarb, 862 P.2d 870 (Az. 1993). In contrast with this "functional test" (i.e., the purpose of the communication), most other courts extend the attorney-client privilege more broadly to cover all communications with hospital employees about events in the course of their employment (the "subject matter test"), while a few other courts restrict the privilege to communications only with management employees who make litigation decisions (the "control group test"). See Samaritan Foundation for a review of authorities.

Access to Medical Records. The primary source of evidence for potential plaintiffs is their own medical records. Historically, doctors and hospitals have been highly protective of these records, not only to preserve the patient's confidentiality in them, but to assert their ownership and custody of the records as against the patient or against other medical providers. While the doctor or hospital does own the tangible paper on which the records are kept, they are obliged to provide copies to patients, who have a privacy right to know their contents. In many states, litigation or statutory action has been required to establish this right. Plaintiffs obviously face much greater difficulty, however, in obtaining the medical records of other patients of the same physician. This requires filing a discovery request and usually obtaining a court order. The order is usually given where the plaintiff agrees to accept redacted records that delete any identifying information. See, e.g., Amente v. Newman, 653 So.2d 1030 (Fla. 1995).

Two Problems

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?

Return to home page.