The State of Michigan Court of Appeals (“Michigan Appellate Court”) ruled in its opinion filed on August 24, 2017 that the trial judge in a Michigan medical malpractice case had overstepped his gatekeeping role and had instead intruded on the jury’s role as fact-finder when he precluded the plaintiff from presenting evidence or argument to the jury attacking the genuineness and reliability of an ultrasound image of the plaintiff’s shoulder taken on the day of his surgery, which the defense had introduced into evidence and argued that it showed that the defendant anesthesiologist had properly placed the needle and catheter while performing post-operative services on the plaintiff, .
The trial judge had ruled that the defendants had properly authenticated the image and, as a result, the plaintiff’s medical malpractice attorney was precluded from presenting evidence or argument to the Michigan medical malpractice jury that the proffered image was not, in fact, an accurate image of the plaintiff’s shoulder.
The plaintiff had surgery on his right shoulder in May 2011. The defendant anesthesiologist provided post-operative services, including performing an interscalene nerve block and continuous catheter placement on the plaintiff’s shoulder (an interscalene block is a procedure using a needle to administer a local anesthetic around the brachial plexus, which provides anesthesia to the patient for varying periods of time). Later that same day, the plaintiff had problems breathing, which is a common symptom of phrenic nerve injury, and returned to the hospital.
The plaintiff subsequently filed his Michigan medical malpractice lawsuit against the anesthesiologist and others, claiming that the defendant anesthesiologist failed to properly perform the interscalene block on the plaintiff after his shoulder surgery. The plaintiff argued that the defendant anesthesiologist breached the standard of care by placing the needle or catheter in such a way as to directly damage his phrenic nerve. The defendant argued that he properly placed the needle and catheter in the interscalene groove near the brachial plexus and that the plaintiff was just one of the unfortunate patients—1 in 1,000 or 2,000, in his estimation—who develop permanent phrenic nerve injury, even with a properly performed interscalene block.
The plaintiff’s medical records indicated that the defendant anesthesiologist used an ultrasound to guide his placement of the needle and catheter during the procedure, and the defendant noted in the plaintiff’s chart that he printed an image from the scan at the time he performed the procedure. During the defendant’s deposition, he testified that he did not know what happened to the image after he put it with the plaintiff’s chart on the day of the procedure. Despite the plaintiff’s repeated requests during discovery for the ultrasound image, it was not until just before case evaluation that the defendants produced what they purported to be a scanned version of the original progress note with an ultrasound image attached to it.
The plaintiff’s medical malpractice attorney questioned the authenticity of the ultrasound depicted in the image: the image showed that the sticker with the plaintiff’s identifying information on it had been placed over another sticker that attached the ultrasound image to the progress note, and the sticker was different from others used on the day of the plaintiff’s procedure; and, the time listed on the ultrasound by a time-stamp (4:16:27) varied from the time of the procedure listed on the plaintiff’s chart (15:32), suggesting that the ultrasound image was taken 45 minutes after the notes indicated that the plaintiff had his procedure.
The trial judge determined that, although there appeared to be some “irregularities with respect to this photograph,” there was no evidence that defendants improperly destroyed the original or had any role in the failure to disclose it. The trial judge determined the evidence sufficiently authenticated to be admissible and that any irregularities in its production and the chain-of-custody did not outweigh the probative value. The trial court then precluded the plaintiff from offering any evidence tending to show that the image was not an accurate one, concluding that it would invite a “trial within a trial” involving a nonparty (the hospital) to allow the plaintiff to argue that the defendants did something wrong in the handling of the image or that the image was not accurate.
During the Michigan medical malpractice trial, the ultrasound image was a key piece of the defendants’ case: a defense expert testified that the image represented a “textbook” example for the proper placement of the needle during an interscalene block (the plaintiff’s expert conceded that the image depicted a proper needle placement, and speculated that the defendant anesthesiologist might have improperly placed the needle and catheter before or after the ultrasound image was printed).
The Michigan medical malpractice jury found that the defendants were not negligent, and the trial court entered a judgment of no cause of action in favor of the defendants. The plaintiff appealed.
Michigan Appellate Court Decision
The Michigan Appellate Court stated that the issue whether evidence is admissible is reserved solely to the trial judge, but the weight or reliability (if any) given to the evidence is reserved solely to the fact-finder: when a bona fide dispute regarding the genuineness of evidence is presented, that issue is for the jury, not the trial court (the parties may submit evidence and argument, pro and con, to the jury regarding whether the authenticated evidence is, in fact, genuine and reliable).
The Michigan Appellate Court concluded: “the trial judge did not abuse his discretion in determining that a reasonable jury might conclude that the ultrasound image was an actual depiction of plaintiff’s procedure. The image showed a sticker that attached the ultrasound to the underlying progress note, and the sticker included plaintiff’s identifying information, the date of the procedure at issue, and the name of the doctor who performed the surgery. Thus, the digital image had distinctive characteristics that tended to permit an inference that it depicted the ultrasound generated on the date at issue. See MRE 901(b)(4). Further, [there was testimony] that the digital scan was made from the original record and was part of plaintiff’s medical record. See MRE 901(b)(1); MRE 1003. Although plaintiff raised several sound arguments against the image’s authenticity, the evidence need not be free from all doubt to be authenticated for purposes of admission … however, the trial judge erred by precluding plaintiff from arguing to the jury that the purported image was not, in fact, an accurate digital scan of the original, i.e., that the image was not genuine or reliable and therefore had little-to-no probative value. The trial judge’s role in examining the genuineness and reliability of the image concluded when he held that the image was admissible. Where a bona fide dispute is presented on the genuineness and reliability of evidence, the jury, as finder of fact, is entitled to hear otherwise admissible evidence regarding that dispute. Furthermore, any potential confusion to the jury related to the chain-of-custody involving a non-defendant could have been cured with an appropriate instruction by the trial judge. In foreclosing plaintiff from presenting any evidence disputing whether the image actually depicted plaintiff’s procedure, the trial judge in effect determined that the image was indeed genuine and reliable, even though such questions of evidentiary weight are reserved for the jury. In so ruling, the trial judge erred.”
The Michigan Appellate Court stated that an evidentiary error is not ordinarily grounds for appellate relief, and such relief is appropriate only when the error results in substantial prejudice that denies a fair trial to the aggrieved party. In the present case, the ultrasound image was a key piece of evidence, and evidence as to its genuineness and reliability would have been quite relevant as to the weight (if any) the jury should have placed on the image. The Michigan Appellate Court held that by restricting the plaintiff from attacking its genuineness and reliability before the jury, the trial judge abused his discretion and substantial justice required reversal and vacating the judgment.
Source Mitchell v. Kalamazoo Anesthesiology, PC, No. 331959
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