Medical Malpractice Case Update – Spring 2011
Physician May Explain His Response to a Request to Admit
Serrano v. Rotman
The plaintiff underwent tubal ligation reversal surgery by Dr. Rotman. She contended that Dr. Rotman knew she was a hemophiliac and that she needed certain medication, Factor IX concentrate, before and after her surgery but that Dr. Rotman failed to administer the medication. She claimed significant injury as a result of the failure to administer the medicine. Dr. Rotman contended that he was never advised by the plaintiff that she was a hemophiliac or that she required Factor IX concentrate. Before trial, the plaintiff served Dr. Rotman with a Request to Admit that included the following request: “You elected not to infuse plaintiff with Factor IX Concentrate prior to, during or following surgery.” Dr. Rotman filed a response admitting that request. At trial the court deemed this an evidentiary admission and not a judicial admission and that Dr. Rotman was therefore entitled to explain that his response was factually accurate but that the reason he elected not give the Factor IX concentrate was because he was unaware of the patient’s need for it. The jury returned a verdict in favor of Dr. Rotman. The plaintiff appealed, contending that the response to the request was a judicial admission that barred him from offering any explanation of why he admitted the request. The appellate court affirmed the defense verdict, finding that the request was not clear or unequivocal and that the trial court thus did not abuse its discretion in treating it as an evidentiary admission susceptible to explanation at trial.
The holding of the court, though favorable for the defense, is emblematic of the potential pitfalls in responding to allegations in either an Answer or a Response to Request to Admit. Care must be taken to avoid an inference of admission of facts and claims not immediately apparent in the allegation. Better practice may have been to object to the Request was improper in that it assumed an inaccurate fact, i.e. that Dr. Rotman was aware of the potential need for the medication. This objection would fall under Rule 216(c)(2) which allows for a an objection to request to admit if it is “improper in whole or in part.”
Impeachment of Plaintiff’s Expert with His 2-622 Report Allowed
Iaccino v. Anderson
The plaintiff claimed that Dr. Anderson negligently caused hypoxia to a newborn by improper administration of Pitocin to the mother. When suit was filed, the plaintiff attached a 2-622 report from Dr. Gary Blake which asserted that the fetal monitor strips as containing “variable decelerations.” At trial, Dr. Blake changed his opinion and testified that the strip showed “late decelerations.” The trial court allowed the defense counsel to impeach Dr. Blake with his 2-622 report as it was inconsistent with his trial testimony. The jury returned a verdict for the physician and the plaintiff appealed. The appellate court affirmed and, in a case of first impression, held that a plaintiff’s expert can be impeached with his report. The court rejected the plaintiff’s contention that the reports are only a threshold opinion prepared before all of the facts are fully developed in discovery. The court found that subjecting the physician to such cross-examination at trial serves the purposed of Section 2-622 because if a physician writing the report knows that he may be subject to such cross examination, then he will be more careful to make only those accusations that have a reasonably valid scientific basis. The court also noted that the physician can explain to the jury why his opinions may have changed and it is then up to the jury to decide whether the explanation is credible.
This opinion clearly favors the defense and confirms the availability of another topic of cross examination of the plaintiff’s expert.
Originally published in the Spring 2011 edition of Quinn Quarterly.