This week the Connecticut Supreme Court, in the case of Pin v. Kramer, agreed with the decision of the CT Appellate Court and ordered a new trial in a medical malpractice case. The reason for ordering a new trial is the result of the prejudicial remarks made by the defendant doctor’s medical expert who testified at trial that medical malpractice lawsuits drive up the cost of health care by forcing doctors to practice defensive medicine and increase medical malpractice insurance premiums from the proliferation of medical malpractice claims in CT.
The plaintiffs sued the defendants alleging negligence in the physician’s surgical treatment of a spinal tumor suffered by the plaintiff. The plaintiffs contended that, because of the doctor’s negligence, the plaintiff was required to undergo two additional spinal surgeries which caused him to suffer from unnecessary pain, emotional distress and increased physical limitations and risk of future back problems.
At trial, a major claim of malpractice was whether the standard of care required the surgeon to order additional radiological tests, such as X rays, CT scans or MRI scans, prior to performing the first surgery, in order to determine whether the tumor had changed since it was first detected.
The defendants’ medical expert, Todd Albert, an orthopedic surgeon, testified that ‘‘the standard of care did not require additional radiology tests,’’ but then ‘‘explained why he would have ordered such tests had he been the treating physician. Dr. Albert explained: “Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that’s wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more—they have another dot in their exposure.”
‘The second reason is much different than in this part of the country and this state. I live in the worst malpractice community in the world. And . . . we practice a lot of defensive medicine. So, we order way more tests than are necessary to protect ourselves. And that’s just a fact. And so we get acclimated to practicing like that.”
The plaintiffs, thereafter requested a mistrial. The trial court denied the plaintiffs’ request. Thereafter the jury returned a verdict for the doctor and the appeals followed.
The CT Appellate Court concluded that the trial court’s ‘‘failure to issue a curative instruction in the face of Albert’s inflammatory and prejudicial testimony was an abuse of discretion that likely influenced the jury’s deliberations. Although the improper statements by Albert were not pervasive, they introduced a highly controversial and legally improper issue into the case.” The CT Supreme Court agreed stating “We conclude that the plaintiffs were harmed and were deprived of their right to a fair trial.”
A new trial was then ordered. What do you think about the expert’s comments and the CT Supreme Court’s decision ordering a new trial?
Richard P. Hastings is a Connecticut personal injury lawyer at Hastings, Cohan & Walsh, LLP, with offices throughout the state. A graduate of Fordham Law School, he has been named a New England Super Lawyer and is the author of the books: “The Crash Course on Child Injury Claims”; “The Crash Course on Personal Injury Claims in Connecticut” and “The Crash Course on Motorcycle Accidents.” He has also co-authored the best selling book “Wolf in Sheep’s Clothing- What Your Insurance Company Doesn’t Want You to Know and Won’t Tell You Until It’s Too Late!” He can be reached at 1(888)CTLAW-00 or by visiting www.hcwlaw.com.