In an unpublished opinion of the Superior Court of Pennsylvania (“Appellate Court”) dated January 24, 2017, the Appellate Court affirmed the Pennsylvania medical malpractice jury’s verdict in favor of the defendant emergency room physician, finding that the defendant’s refreshed recollection of the plaintiff during trial despite his earlier sworn deposition testimony that he did not recall the plaintiff was a matter of credibility for the jury to consider so that granting a new trial to the plaintiff was inappropriate.
The Underlying Facts
The 49-year-old plaintiff presented to the emergency room of a local hospital on September 17, 2012, complaining of a migraine headache, chest pain, dizziness, and nausea. The defendant emergency room physician treated the plaintiff immediately, based on his belief that her medical condition was an emergency and could progress to a stroke. The defendant ordered an MRI and intravenous administration of the drug Phenergan, which carried a black box warning.
The plaintiff’s symptoms resolved but she returned to the emergency room on September 19, 2012, complaining of swelling and pain in her left hand up to her forearm that her subsequent Pennsylvania medical malpractice lawsuit alleged was the result of the improper administration of Phenergan into her left arm, causing her to suffer from Reflex Sympathetic Dystrophy/Complex Regional Pain Syndrome and other injuries.
The defendant emergency room physician had provided deposition testimony prior to the Pennsylvania medical malpractice trial that he did not recall his treatment of the plaintiff in the hospital’s emergency department on the date in question, which testimony the defendant never corrected, supplemented, or updated, which the plaintiff argued was a clear violation of the requirements of Pennsylvania Rule of Civil Procedure 4007.4(2)(b). At trial, the defendant testified that he had a refreshed recollection of certain aspects of his treatment of the plaintiff.
The plaintiff argued that the defendant was required to amend his previous deposition testimony prior to trial to reflect that his memory of his emergency room treatment of the plaintiff had been restored (during cross-examination at trial, the defendant emergency room physician testified that he had initially confused the plaintiff with another patient who had presented to the emergency room with similar symptoms, and that his memories fell into place for him after the other patient returned to the emergency room as a visitor).
Pennsylvania Rule of Civil Procedure 4007.4(2)(b)
Pa.R.C.P. 4007.4(2)(b) states: “A party or an expert witness who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the response to include information thereafter acquired, except as follows: . . . (2) A party or an expert witness is under a duty seasonably to amend a prior response if he or she obtains information upon the basis of which he or she knows that . . . (b) the response though correct when made is no longer true.” (emphasis added)
The Appellate Court held, “we conclude that [the defendant emergency room physician’s] refreshed or changed recollection is not “obtain[ed] information,” and therefore does not fall under the ambit of Rule 4007.4.” The Appellate Court stated, “we agree with the trial court that: this was an issue of credibility; Appellants’ counsel vigorously challenged [the defendant emergency room physician’s] credibility on cross-examination; and it was for the jury to decide whether to believe his testimony.”
Source Yamialkowski v. Berry, No. 2280 EDA 2015.
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