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Smethers v. Campion3/22/2005
dical literature --- that supported the position that Dr. Binder's "personal practice" was perhaps closer to reflecting the applicable standard of care than that espoused by Dr. Binder in his official standard of care opinion.
Finally, based upon our review of the trial transcript, it appears that Dr. Binder may have contradicted himself when he testified that he would have "done the same thing" as Dr. Campion in choosing not to re-measure the corneas of this patient before performing the surgery. Counsel for Dr. Smethers should have been allowed to impeach Dr. Binder with his deposition testimony that he personally would have waited a longer period of time after the lenses were removed before taking the measurements upon which the surgical corrections would be based or would have repeated the measurements prior to surgery.
Accordingly, we hold that it was error to limit the cross-examination of Dr. Binder as it relates to his personal approach to this medical issue. Because we cannot predict how a jury would have reacted to this information, we cannot say that this was merely harmless error. Therefore, we reverse the verdict entered and remand for a new trial.
LAWRENCE F. WINTHROP, Judge
CONCURRING:
SUSAN A. EHRLICH, Presiding Judge
GEORGE H. FOSTER, Judge Pro Tempore
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