 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Holley v. Pambianco6/9/2005
physician's negligence. In that event, the jury could infer the direct opposite of defense counsel's argument: That perforations occur only where the physician is negligent. See McCloud v. Commonwealth, 269 Va. 242, 259, 609 S.E.2d 16, 25 (2005) (evidence of a raw number of events, without describing their circumstances, can be misleading or confusing to the jury); Sanitary Grocery Co. v. Steinbrecher, 183 Va. 495, 499-500, 32 S.E.2d 685, 686-87 (1945) (evidence that 1,000 customers per day visited grocery store without injury inadmissible as misleading and throwing no light upon the facts of the case before the jury). We conclude that such raw statistical evidence is not probative of any issue in a medical malpractice case and should not be admitted.
Because the case must be remanded, we will discuss other issues that may arise in any further proceedings in the trial court. The trial court did not err in ruling that the defense had the right to attempt to prove that the plaintiff had failed to mitigate his damages. See Sawyer v. Comerci, 264 Va. 68, 76-77, 563 S.E.2d 748, 753 (2002). In that connection, the defense had the right to adduce competent evidence that Holley had been warned of the danger of complications that might result from his surgery, of the symptoms that would signal such complications, and of the need to make prompt report of any such symptoms in order that appropriate and timely remedial steps could be taken. The jury would be entitled to consider any failure or undue delay on his part in doing so, in the light of his condition at the time.
The evidence offered at trial in support of that defense included a videotape shown to Holley in Dr. Pambianco's office about six weeks before his colonoscopy. Prepared by the American Gastroenterological Association, the tape was less than 10 minutes in length and was designed to be shown to patients contemplating future colonoscopy. Generally reassuring in tone, the tape contained only two caveats upon which the defense relied:
Although colonoscopy is a safe procedure, complications can occur rarely. These include perforation; that is, puncture of the colon wall which could require surgical repair.
Occasionally minor problems may persist, such as bloating, gas or mild cramping. These should disappear in 24 hours or less.
The foregoing language contains no warning to the patient that a burden was being imposed upon him to take any postoperative steps for his own protection. Its reassuring tone was more conducive to the opposite conclusion: That the procedure was "safe," that complications occur "rarely," that post-operative problems persist only "occasionally," and that if they do they "should disappear in 24 hours or less." It had no tendency to prove that Holley had failed to mitigate his damages and its admission was error.
In further support of their defense of failure to mitigate damages, the defendants relied on certain postoperative instructions allegedly given by hospital personnel to Holley's wife and on the content of his two telephone conversations with Dr. Pambianco's nurse on the day after his surgery. These matters were probative as to the defense of mitigation of damages and the trial court did not err in admitting them. Their weight and sufficiency, of course, were issues for the jury, which was entitled to consider their content, their timing, and the patient's ability to comprehend them. See Lawrence v. Wirth, 226 Va. 408, 412-13, 309 S.E.2d 315, 317 (1983).
Conclusion
For the reasons stated above, we will reverse the judgment of the trial court and remand the case for further proceedings consistent with this opinion.
Rever
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.
|
|