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Bradley v. Brotman2/19/2003
trial on May 23 and 25 to the medical records custodians with Drs. Unis' and Bernhardt's offices and to Dr. Unis personally, for all documents relating to Kelly's treatment. Krupnick did not receive notice that these trial subpoenas were issued. Contrary to the directives of the subpoena, which requested the presence of a records custodian at trial, Dr. Unis sent his medical records to Cocalis' office. Cocalis did not notify Krupnick upon receiving these records. At trial on May 30, when arguing about the Bernhardt contact, Krupnick asked Cocalis whether he had any other ex parte contacts with plaintiff's experts. Cocalis stated that the only contact was the subpoena for the records custodian, "where the records custodian has called my office." When Krupnick asked who was contacted, Cocalis' co-counsel stated she contacted Dr. Bernhardt's office. Cocalis did not mention the subpoena which he had issued for Dr. Unis' records.
Dr. Unis, a dermatologist, examined Kelly only once in 1996 and diagnosed the alopecia areata. He explained the condition to the Bradleys and suggested that they get a second opinion. In 1999, his deposition was taken, and his notes of this one visit were attached to the deposition. Shortly before trial in 2000, Krupnick called him regarding Kelly's condition. Dr. Unis noted this conversation in Kelly's medical record on May 11, 2000 (six months after the deposition). This note stated, "I advised him that I did not think that the patient's persistent problem with alopecia areata at this point would be due to stress from a prior dog bite." A second notation indicated that he sent his records to Cocalis on May 24, 2000. Krupnick did not receive these amended medical notes.
At trial, after an abundance of medical testimony from each side, Krupnick read Dr. Unis' deposition to the jury. During his deposition, Dr. Unis testified that because medical studies had cited stress as a possible cause or aggravating factor of alopecia areata, he would not be surprised if a study linking alopecia areata with dog bites existed. However, he did not formulate an opinion regarding the cause of Kelly's condition. At his deposition, Dr. Unis identified his medical records, and they were introduced as defendant's Exhibit 1. When Cocalis attempted to call Dr. Unis' records custodian at trial, Krupnick announced he would stipulate to their admission because Dr. Unis' deposition had just been read. What Cocalis presented to the clerk for admission were not the records attached to the deposition but rather the records sent to his office, which included the note regarding the telephone conversation with Krupnick, of which Krupnick was unaware.
At the close of all the evidence, Krupnick reviewed the evidence that had been admitted and discovered the additional note regarding the telephone conversation in Dr. Unis' records. Krupnick renewed his motion for sanctions and to strike the pleadings, both of which were denied. He also moved to have the note removed from the record on the grounds of fairness, the lack of opportunity to subject it to cross- examination, and that it had no probative value. The court denied the motion because Krupnick had stipulated to the entry of the document. Before Cocalis began his closing argument, Krupnick again argued that Dr. Unis' medical records were obtained in violation of section 455.667(5), his opinion was not based upon a medical probability, and Cocalis fraudulently entered the notes into the record. Cocalis responded that Krupnick was at fault for not reviewing the documents before stipulating to their entry into evidence. Krupnick noted that his stipulation was to the medical records introduced during Dr. Unis' deposition, which did not include the tel
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