SURGEON SEEMINGLY MAKES ADMISSION, BUT JUDGE DOESN’T LET JURY HEAR ABOUT IT. NJ MEDICAL ATTORNEY WINS NEW TRIAL.
An actual NJ medical attorney case that was recently decided: Mrs. Frances Parker sued her late husband’s surgeon, John W. Poole, M.D., for medical malpractice. Mr. Parker was diagnosed with colon cancer. A tumor was discovered during a colonoscopy. Dr. Poole operated to remove the cancer. After removing the tumor, the doctor performed an open “anastomosis.” In layman’s language, Dr. Poole sewed Mr. Parker’s colon back together. There were no difficulties during the surgery.
After the surgery, Mr. Parker remained in the hospital. He developed complications. Nurses observed blood-tinged fluid coming from the surgical site. Mr. Parker had developed a “dehiscence.” That is, his abdominal wall had come apart. Dr. Poole decided to perform a second operation to repair the dehiscence.
During the procedure, Dr. Poole noticed some “murky fluid in the abdominal wound.” He investigated to determine if there was an “anastomotic leak.” In other words, whether there was a hole in the intestine that allowed intestinal contents to leak into Mr. Parker’s abdomen. While Dr. Poole later testified that he never saw a perforation, he nonetheless decided to surgically correct the anastomosis. After the second operation, Mr. Parker “had a cataclysmic rapid demise.” He died two days later.
Mrs. Parker’s NJ medical attorney sued Dr. Poole. The NJ medical attorney claimed that Dr. Poole negligently performed the first operation, creating a leak. The leak, claimed the NJ medical attorney, led to blood poisoning (sepsis). Finally, the NJ medical attorney contended that the doctor, after seeing evidence of infection in the second surgery, should have performed an ileostomy. An ileostomy is a procedure where a loop of small bowel is externalized to stop feces from coming into the abdomen. This would have drained the abdomen of infectious fluids. Only after being healed should Mr. Parker have undergone the corrected anastomosis.
At trial, the medical attorney tried to introduce Dr. Poole’s out of court testimony to the jury. In that testimony, Dr. Poole admitted that “I have to assume that [the blood poisoning] was related to the anastomotic leak.”
But Dr. Poole’s lawyers tried to walk back that testimony, and not let the jury hear it. They argued that Dr. Poole was not testifying as an expert witness. Rather, he was only testifying as a witness as to the facts of what happened. (Each side had hired other doctors as medical experts to testify as to what caused Mr. Parker’s death). Thus, the doctor’s attorneys claimed, the doctor’s testimony was “speculative.” Only expert witnesses are allowed to “speculate.” Accordingly, the jury was not entitled to know about Dr. Poole’s apparent admission.
The trial judge ruled in favor of Dr. Poole. The jury did not hear the admission. The jurors ruled against Mrs. Parker. Her NJ medical attorney appealed. The appeals court reversed. It ordered a new trial.
The appeals judges noted that no one was in a better position to know what happened than Dr. Poole. Further, statements by a party to a lawsuit should virtually always be admissible against that party. A new jury will get to hear everything.
I think that the appeals court was correct.
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