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Oberlin v. Akron General Medical Center3/28/2001
Medical malpractice - Evidence - Witnesses - Evidence that an expert witness is a defendant in a pending malpractice action alleging a medical error similar to the one at issue is probative and is admissible to prove bias, prejudice, or motive to misrepresent.
Submitted September 13, 2000
Evidence that an expert witness is a defendant in a pending malpractice action alleging a medical error similar to the one at issue is probative and is admissible to prove bias, prejudice, or motive to misrepresent.
In December 1994, appellee Gregory Hill, D.O., performed a thumb joint fusion and bone graft procedure on appellant Robert C. Oberlin at Akron General Medical Center. In surgery, Hill used a pneumatic tourniquet with the assistance of a nurse. Hill dictated the tourniquet use, including its inflation pressure and the duration of the inflation. At Hill's direction, the tourniquet remained inflated for two hours and twenty-four minutes.
Oberlin claimed that he suffered permanent damage to his left arm, hand, and ulnar nerve due to Hill's negligence. According to expert testimony presented on Oberlin's behalf, the length of the inflation time was excessive, resulting in permanent injury to Oberlin, namely, reflex sympathetic dystrophy.
Gregory Vrabec, M.D., testified as an expert for Hill. In his discovery deposition of May 28, 1997, Vrabec admitted to being a defendant in a pending medical malpractice action. When asked of the nature of the injury in that case, Vrabec responded, "Interestingly, it is ulnar nerve following an ulnar nerve transposition of the elbow." However, Vrabec claimed no knowledge of the details of the claim, including the plaintiff's theory of negligence.
In a video deposition of June 13, 1997, Oberlin's counsel again cross-examined Vrabec as to the claim against him. The claim had been brought in Canada by Vrabec's former patient, Donna Kampen, and involved an injury similar to Oberlin's. Kampen's claim arose out of orthopaedic surgery on her left arm, and her injury was to her left ulnar nerve, causing causalgia, also known as reflex sympathetic dystrophy.
When the video deposition was played at trial, the court refused to allow the jury to view Oberlin's cross-examination of Vrabec concerning the Canadian malpractice case. The trial court found that although the testimony "may have some probative value in terms of bias, * * * the Court feels that the prejudicial nature of this testimony far outweighs any probative value." Upon review of the transcript of the June 13, 1997 deposition, the trial judge noted:
"And all I can tell from reading this transcript, the only thing that the doctor agrees upon, that it involved orthopaedic surgery treatment on her left hand.
" * * *
"I can't tell from reading this whether or not [the Canadian] litigation * * * involved a tourniquet or if there was a problem with the anesthesia or all of those that are present in our case. I can't tell."
On appeal, Oberlin attempted to demonstrate the probative value of the disallowed testimony, arguing that the evidence would have established potential bias on Vrabec's part because he was facing a very similar malpractice claim himself.
In his brief to the appellate court, Oberlin attached Vrabec's deposition in his own malpractice case taken in Canada on July 26, 1996. That deposition, however, had not been made available to the trial judge. The appellate court held that because Oberlin had failed to demonstrate that the probative value of the evidence at issue was not substantially outweighed by the danger of unfair prejudice, the evidence was inadmissible pu
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