The Superior Court of Pennsylvania (“Pennsylvania Appellate Court”) on July 10, 2018 affirmed an order for a new trial in a Pennsylvania medical malpractice case where the jury returned a defense verdict following the defense attorney repeatedly asking improper questions of witnesses during the trial.
The Pennsylvania medical malpractice plaintiff had undergone a successful cardiac ablation procedure in the defendant hospital after which she was given heparin, an anticoagulant, to reduce the risk of a stroke. The plaintiff alleged that the defendants’ alleged failure to properly test and monitor her postprocedure heparin levels resulted in an intracranial bleed and permanent deficits.
The plaintiff alleged that the applicable standard of care required that her heparin levels be tested six hours after the medication was restarted postablation. Instead, more than twelve hours elapsed before blood was drawn for the first time, and the results of that test indicated that her heparin levels were well in excess of the therapeutic range.
At approximately that same time, the plaintiff was complaining of a headache, and the defendants gave her Motrin, which provided pain relief. Six hours later, the plaintiff reported to nurses that she had a migraine, with pain rated at a seven out of ten, and she was given more Motrin. When the pain increased despite the Motrin, she was given an ice pack. Shortly afterwards, the plaintiff vomited, complained of an inability to hear in her right ear, and exhibited a change in her mental status. When her blood pressure spiked, the defendants discontinued the heparin and called the Rapid Response Team.
A neurologist ordered a CT scan, which revealed intracranial bleeding. The plaintiff was taken to the operating room for emergency surgery to evacuate the bleed. Following surgery, the plaintiff remained in the hospital for approximately three weeks, and spent another three months at a rehabilitation facility. The plaintiff received in-home therapy and then underwent outpatient therapy for approximately ten months. The plaintiff suffers from permanent residual deficits due to the severe brain bleed and she requires assistance with dressing, feeding, bathing, showering, and toileting.
The plaintiff alleged in her Pennsylvania medical malpractice case that her heparin levels should have been tested six hours after it was re-started, that a timely blood test would have revealed elevated levels in the early morning hours of December 7, 2010, and that the defendants should have adjusted the dosage of heparin at that time. Instead, she continued to receive an excessive dose of heparin throughout the night, until the results of a 6:00 a.m. blood draw were reported at 7:00 a.m., and corrective action was taken. The plaintiff alleged that the defendants’ failure to treat her headache as a possible indication of a bleed and more closely monitor her condition resulted in a delay in diagnosing the brain bleed and increased the risk of permanent injury.
At trial, the plaintiff stipulated that there was no negligence in the performance of the ablation procedure and that the negligence occurred in the post-procedure administration of heparin. Despite the stipulation, the medical malpractice defense attorney repeatedly disregarded the trial court’s directive to focus on the relevant post-procedure care and treatment.
The trial court ruled that the defense attorney could show the jury where the ablation occurred but he could not tell the jury that a hemorrhage never occurred before. The defense attorney acknowledgement that he understood the parameters but nonetheless spent considerable time discussing the ablation, including forty minutes questioning the defendant about his credentials for performing ablation surgery and segued into what he had advised the plaintiff about the risks of the procedure. The defense attorney exhaustively explored and re-explored the subject of heparin levels during the ablation procedure.
The Pennsylvania Appellate Court held: “We find ample record support for the trial court’s conclusion that defense counsel, despite admonishment from the court, repeatedly attempted to introduce evidence beyond the scope of the court’s rulings, thereby diverting attention from the issues … [d]espite being advised repeatedly by the court to curtail inquiry into the ablation itself, as it was confusing the jurors and diverting their attention from the issue at hand, defense counsel persisted in revisiting the performance of the ablation procedure.” The Pennsylvania Appellate Court stated that since it was not present, and thus in an inferior position to evaluate counsel’s motivations, it defers to the trial court’s assessment that defense counsel was deliberately defying the court’s rulings regarding the scope of inquiry.
The Pennsylvania Appellate Court stated, “Throughout, the trial court attempted to keep the trial focused and on course despite what it perceived as defense counsel’s deliberate attempts to derail it. The court repeatedly expressed concern that defense counsel’s tactics were intended to confuse the jury and took steps to curtail his conduct.”
The Pennsylvania Appellate Court held: “The record clearly demonstrates that defense counsel repeatedly and deliberately disregarded the court’s rulings throughout trial, introducing cumulative evidence and eliciting repetitive and irrelevant testimony. Defense counsel’s repetitive questioning, intentional persistence in asking leading questions, and defiance of the court’s directives confused the jury and dragged the questioning out beyond what was necessary for a clear presentation of the case,” citing the trial court’s determination that “[t]he ‘cumulative effect’ of Defense counsel’s sustained derailment of the proceedings ‘was highly prejudicial and deprived Plaintiff of a fair trial.'”
Source Wilson v. University of Pennsylvania Medical Center, No. 703 EDA 2016.
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