 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Holley v. Pambianco6/9/2005
onfuse the jury because the jury could conclude . . . that consent to the surgery was tantamount to consent to the injury. . . ." Id. at 528-29, 593 S.E.2d at 317.
Dr. Pambianco responded by pointing out a difference between Wright and the present case. In Wright, the patient's conduct after surgery was not in issue. Here, the defense contends that Holley, having been informed of the risks of perforation of the colon, had a duty to mitigate his damages by making prompt report of his post-operative symptoms and that his four-day delay in doing so greatly exacerbated his injuries. The defense informed the court that the evidence would support jury instructions on both mitigation of damages and contributory negligence.
The court took the question under advisement and ultimately ruled that the evidence would be admitted only for the limited purpose of the defendants' contentions concerning mitigation of damages and contributory negligence. The court stated that jury instructions would ensure that the jury would not consider such evidence in connection with the plaintiff's contention that the physician had departed from the standard of care.
At trial, Holley introduced an expert witness who testified that there are inherent risks in the use of a "hot biopsy forceps" technique in the removal of sessile polyps because the electric current sufficient to remove the polyp tissue may also be strong enough to burn a hole in the wall of the colon, particularly in areas where the colon wall is thin. It was his opinion that Dr. Pambianco had departed from the applicable standard of care by using that technique to remove polyps in the transverse colon, where the wall is typically thin, and that in the circumstances of this case, the standard would have required use of a "cold biopsy technique" instead, whereby the polyps would be removed surgically, in small pieces, without using an electric current.
In cross-examination of the plaintiff's expert witness, defense counsel elicited the statistical frequency of perforations of the colon wall during all colonoscopies and polypectomies. The court overruled the plaintiff's objection to this testimony. The witness stated that perforations occur at the rate of 1 per 10,000 in colonoscopies and 13 per 10,000 in polypectomies. During the defendants' case, defense counsel elicited similar testimony from Dr. Pambianco and each of the two expert witnesses called in his behalf, although all gave differing numbers. Each of the three expert witnesses, however, in response to questioning by plaintiff's counsel, testified that the statistics contained no breakdown between those cases involving perforations caused by negligence and those that did not.
Over plaintiff's objection, defense counsel, in his closing argument to the jury, referred to this testimony in the context of the standard of care: "I'm arguing statistics. . . . hat risk factor cannot be taken out of the procedure. You can do everything exactly the way you're supposed to do it, and you can be absolutely prudent, absolutely careful and we still have a situation like that that occurred with Mr. Holley."
Analysis
That argument, and the statistical evidence on which it was based, had nothing to do with the issue of mitigation of damages. Its admission was error for the reasons discussed in Wright.
Further, the argument was based upon a premise unsupported by the evidence: That perforations are just as likely to occur in the absence of negligence as in its presence. The statistical evidence was so misleading that, for all the jury could determine, each of the perforations of the colon contained in the statistics may have been due to a
Page 1 2 3 4 Virginia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|