There You Go Again: Other Similar Incidents in Medical Malpractice Cases

(A Case Study of Bean v. Northeast Georgia Medical Center, et al.)

By

Robin Frazer Clark

Most of us have faced the terribly frustrating situation of a defendant physician, insured by the Medical Association of Georgia Mutual Insurance Company (MAG Mutual), who refuses to consent to settlement of the case, perhaps even when the co-defendant hospital is more than willing to do so or of MAG Mutual itself refusing to consider settlement and forcing all cases to trial. Further, with de facto tort reform already occurring in our courtrooms, as we have all experienced, just the plain brown wrapper medical malpractice case may not be sufficient to motivate a jury to hold the physician responsible for his or her carelessness. If you can find some way in your medical malpractice cases to inject some heat, i.e., some additional fact or evidence that ups the ante, that appreciably increases the risk a physician faces if he goes to trial, you may be able to spur either the carrier to consider settlement or the jury to return a sizeable verdict that recognizes that super-added value of the case. I have found that in some cases you can achieve just that with the strategic use of other similar incidents. True, it may be the unique medical malpractice case that will involve other similar incidents; however, you have to be aware of the possibility of other similar incidents in all of your medical malpractice cases to be able to recognize them when they present themselves & when that happens, you can capitalize on them for your client.

I stumbled onto this potential pot of gold in a medical malpractice case I tried a couple of years ago in Hall County State Court, Bean v. Northeast Georgia Medical Center, et al. This was an obstetrical malpractice case in which my client, the mother, had suffered an abrupted placenta and did not get adequate medical attention timely to avert a disaster. The mother was 32 or 33 weeks pregnant and although she had not felt well most of this particular day, she went to the 9:00 p.m. movie that evening with her family in Buford. During the opening credits of the movie, Ms. Bean became ill and went into the restroom to vomit. The family then left the theatre to take her to Northeast Georgia Medical Center (NEGMC) emergency room but decided to stop at their home in Flowery Branch on the way to allow Ms. Bean to change her soiled clothes, retrieve the telephone number of her obstetrician and call him for approval to go to the emergency room. Ms. Bean believed such approval was necessary to comply with certain rules and regulations that she felt she must follow to continue to be this obstetrician's patient.

Ms. Bean began to bleed vaginally while on the trip to NEGMC. When the family arrived at NEGMC, Ms. Bean's sister learned from the hospital staff that the emergency room was busy this evening, and so she obtained a wheelchair herself and assisted her sister in to the emergency room. She informed a medical attendant that her sister was pregnant, bleeding and vomiting. Once they entered the emergency room, Ms. Bean's sister went to the registration desk to register her while Ms. Bean sat in the wheelchair with the reminder of her family. Ms. Bean continued to vomit while waiting for medical attention in the emergency room and received no medical attention other than to get a clean emesis tray from time to time. Ms. Bean waited 57 minutes in the emergency room moaning in pain and bleeding to the degree that a pool of blood the size of a basketball accumulated beneath her wheelchair.

Finally, an attendant in blue scrubs took her up to labor and delivery on the second floor. When she arrived in labor and delivery, an older nurse there immediately recognized the gravity of the situation and called for obstetrical help immediately. Ms. Bean was prepped for surgery rather quickly then and the obstetrician performed a Caesarian section on her, delivering the baby at 12:03 a.m. the next morning.

The child was born with profound brain damage. He had a host of medical problems, including blindness, deafness, epilepsy, severe cerebral palsy, inability to chew or swallow, inability to crawl, walk or talk. The child survived for almost two years until he had an event in which he aspirated and died in his mother's arms while she was giving C.P.R. to him.

Before filing suit I placed an advertisement in The Gainesville Times in an attempt to locate eyewitnesses who might have seen Ms. Bean in the emergency room that fateful night who could verify either the length of time she waited for medical attention or even the fact that the emergency room was extremely overcrowded that evening. The advertisement read: "If you observed a young pregnant woman vomiting and bleeding on the floor in the Northeast Georgia Medical Center Emergency Room on March 1, 1997, please call the number below. The family would greatly appreciate it." Although no eyewitness responded, I received an interesting call from a woman who said although she was not in the NEGMC emergency room on March 1, 1997 with Ms. Bean, she had experienced almost the same thing some nine years earlier with similarly tragic results.

This woman, who we'll call Ms. Burke for privacy reasons, told me her story that was eerily similar to my client s. Nine years earlier she was 34-36 weeks pregnant when her water broke while she was driving home from work. She continued home to change clothes and noticed when she got out of the car that she was actually bleeding enough to soak through her underwear and onto her pants. She changed clothes and then, with her husband, headed to the NEGMC emergency room, about 10-15 minutes away.

When Ms. Burke arrived at the NEGMC emergency room, she registered, told the attendant she was pregnant, her water had broken and she was bleeding. The attendant told her to wait in the emergency room to be taken to labor and delivery. Ms. Burke waited in the emergency room at least 45 minutes, likely longer, until finally a nurse came to her with a wheelchair and told Ms. Burke her obstetrician had sent for her. When Ms. Burke arrived on the second floor in labor and delivery, her obstetrician realized it was an emergency situation and prepped her immediately for a Caesarian section. Her baby was delivered over an hour after she arrived in the emergency room, again with devastating results. Her baby was also born with profound brain damage, including severe spastic quadriplegia cerebral palsy.

I disclosed the identity of Ms. Burke in discovery as a witness who had relevant knowledge to the case. Amazingly, although Ms. Burke lived in Flowery Branch, only a 10 minute drive from Gainesville, the defendants' attorneys never bothered to visit her or, for that matter, simply pick up the telephone to interview her before trial. Even more amazing was the fact that the obstetrician who had delivered Ms. Burke's baby after she sat in the emergency room bleeding for 45 minutes was the same physician who NEGMC had named as an expert witness who would testify at trial. In his discovery deposition, this physician had testified that he was aware of no other incident in his 25 years of practicing at NEGMC that was remotely similar to my client s. I knew, of course, of his own patient's nearly identical experience.

During the trial, defense counsel continually attacked the credibility of Ms. Bean by claiming that the NEGMC emergency room was operated in such a manner that it was physically impossible for any patient, much less a bleeding pregnant woman, to sit in it for nearly one hour without any medical attention. Defense counsel introduced into evidence the NEGMC Emergency Department policies and procedures that detailed triage of emergency room patients based upon necessity. Emergency room personnel testified they did not remember any pregnant woman bleeding in their emergency room for any period of time and they thought it was impossible given their policies and procedures that the event could have occurred the way Ms. Bean and her family members described in their direct testimony. The implication from this testimony was since these witnesses could not recall the incident described by Ms. Bean, and since they certainly would recall if such a thing had happened, then Plaintiff had described the events inaccurately, thereby challenging Ms. Bean's veracity.

Knowing that defense counsel couldn't help themselves and would try this tact, I asked every defense witness put on the stand whether they thought it was possible a pregnant woman would be allowed to sit in the NEGMC emergency room vomiting and bleeding to the point that a pool of blood formed under her wheelchair for 57 minutes without receiving any medical attention. I assumed they would all answer absolutely not (which they did), but I didn't really care what they answered. NEGMC called their expert witness, the obstetrician who had delivered Ms. Burke's baby that horrible night nine years earlier. He, also, followed suit and testified that Ms. Bean could not be telling the truth. When asked if it was possible for a pregnant woman with an obstetrical emergency to "get lost" in the emergency room "shuffle" and not be quickly transported to labor and delivery, the defense expert opined that the NEGMC emergency room was better than that and that he did not think that Ms. Bean was lost in the shuffle. All defense witnesses played their roles exceptionally well and read right from the defense script: it was absolutely impossible for this to have occurred the way Ms. Bean claimed given the policies and procedures of NEGMC.

At the close of Defendants' case, I informed the court outside the presence of the jury that I would have at least one rebuttal witness, Ms. Burke. I outlined what I thought Ms. Burke's testimony would be. As you can imagine, defense counsel nearly went into cardiac arrest and objections were flying fast and furious. The court heard lengthy argument at that time, well into the night, and even broke for an hour or so to give defense counsel time to go back to their offices in town and research the issue, in the court's words, to show the court why it should not allow the plaintiff's rebuttal witness to testify. We left the courthouse around 10:00 p.m. that night, having been instructed to have Ms. Burke present the next morning for an offer of proof, but not knowing how the court was ultimately going to rule. The court also instructed defense counsel to provide to me a copy of Ms. Burke's complete chart from NEGMC the next morning.

The next morning I put Ms. Burke on the stand and made an offer of proof. She testified as expected about that evening nine years earlier in which she was also "lost in the shuffle" with catastrophic results. The court, after a lengthy break, issued a 15 page written Order allowing plaintiff's rebuttal witness to testify.

Ms. Burke's testimony was riveting, and if there has ever been a time in any of my trials in which I thought lightening had struck in the middle of the courtroom, it was when Ms. Burke told the jury that her own obstetrician was the defendants' expert witness who, the day before, had told the jury he was unaware of anything like this ever occurring in the NEGMC emergency room.

So what lead the court to rule that a prior similar incident that occurred nine years before the subject incident was admissible in a medical negligence case? The delicate balance of three critical issues: remoteness, probative value and undue prejudice. When arguing the issue of remoteness, you should consider relying on criminal cases that deal with prior similar acts to the crime charged. Often, our appellate courts will strain the confines of logic in an attempt to uphold a criminal conviction, especially if the crime at issue is particularly heinous. Although the court did not cite any of this criminal authority in its Order, it was clear to me that instances in which evidence of a prior crime some 18 or 20 years earlier was allowed to be introduced, in cases in which the resulting punishment would be life in prison or the death penalty, played a big role in the court's decision. A simple search of "remote" and "prior" gives you a lot of ammunition with which to arm your trial judge. See, e.g., Swanson v. State, 2004 WL 2201267 (2004) (lapse of approximately 24 years between prior rape and instant offenses did not render evidence of prior rape inadmissible. "While the passage of time is one of the more important factors to weigh in considering the admissibility of similar transaction evidence, it is not wholly determinative. In fact, the lapse of time generally goes to the weight and credibility of the evidence, not to its admissibility"); Schneider v. State, 603 S.E.2d 663, 665-666 (2004) ("where similar transaction evidence has been admissible otherwise, lapses of time of 11 years and of 19 years have not demanded that the evidence was inadmissible. Further, the lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility"). The argument that the appellate courts have let these prior incidents into evidence where the defendant is facing death and so that surely prior similar acts would be admissible in a negligence case where only money is involved is compelling. Further, in my case, the Court found that Ms. Burke's memory appeared to be clear despite the passage of time and the fact that she was willing to provide all counsel access to her complete hospital chart alleviated many concerns about potential prejudice.

The Court found the prior similar incident was further admissible as valid impeachment evidence. This had been carefully set up on cross-examination of each defense witness when each was asked whether he or she thought such an incident could ever occur at NEGMC in which a bleeding, pregnant woman was allowed to sit unattended for 57 minutes. In looking back, it is surprising that defense counsel didn't smell a rat in that repetitive questioning. Further, I had counted on defense counsel tendering a defense of "impossibility" and they didn't let me down.

The Court noted that Georgia's appellate courts have held that prior similar acts may be admitted in a civil case for impeachment purposes. See Langlois v. Wolford, 246 Ga.App.249 (2000); Francis v. State, 266 Ga.69, 70 (1995); Weaver v. Ross, 192 Ga. App. 568 (1989); Ingram v. Edwards, 251Ga. App.247 (2001). For example, in a medical malpractice case, the Court of Appeals found that the plaintiffs properly impeached a defendant who stated that she had never written a history and physical examination in a chart for a patient when she had not performed the history and examination, and further stated that she had examined and conducted the history relating to the particular former patient in question. Weaver, supra. In Weaver, the plaintiff produced as rebuttal evidence the widow of the former patient, who testified that the defendant had not performed the physical exams and history on her late husband, contrary to the defendant's written entry on the chart that she had. Id. at 569.

Our Court held the rebuttal evidence to be admissible for impeachment purposes, even though it was to impeach the defense witnesses' implication, rather than direct assertion, that Plaintiff could not be believed. Further, Defendants' witnesses had indicated that Plaintiff was incorrect, and implied that Plaintiff was not just mistaken, but was actually a liar. Since the Defendants' assertion was that not only that the event as Plaintiff described did not occur, but that it could not have occurred under any scenario, the rebuttal evidence was admissible to rehabilitate the Plaintiff.

The Court also permitted the rebuttal evidence as similar transaction evidence because it tended to rebut Defendants' contention that it was impossible for the event to happen in the manner Plaintiff described. The standard for similar transaction evidence was set forth in Hand v. Pettitt, 258 Ga. App. 170 (2002):

As a general rule in all negligence actions, evidence of similar
acts or omissions is not admissible. However, if proof of a
similar accident or similar accident or similar method of acting
tends to prove some fact of the case on trial, the testimony falls
within an exceptionsuch as to show knowledge of the defect,
or causation or to rebut a contention that it was impossible for the
accident to happen in the manner claimed.

Id. at 174; see also Kutner v. Davenport, 257 Ga. 456 (1988) (holding that evidence of similar transactions is admissible in a civil case, under certain circumstances, to show fraudulent intent or motive); First Bancorp Mortgage Corp. v. Giddens, 251 Ga. App. 676, 678 (2001) (holding that proof of a similar transaction may be admissible to establish, among other things, a course of conduct or bad faith, malice or wanton misconduct, and that it was error of the trial court to refuse to admit such evidence); Troncalli v. Jones, 237 Ga. App. 10, 15 (1999) (holding that evidence of similar acts of sexual harassment directed against others were admissible in the plaintiff's civil action concerning the defendant's alleged sexual harassment against her because such similar acts tended to show the bent of mind or course of conduct of the defendant); and Gunthorpe v. Daniels, 150 Ga. App. 113 (1979) (holding that prior act evidence was admissible to show that the defendant knew that such carelessness on his part in the past had resulted in similar injuries to others but continued in this course of conduct in utter indifference to the consequences).

The Supreme Court of Georgia also gave trial courts guidance in evaluating similar transaction evidence:

Rather than adopt a bright line rule, we conclude that the
best way to guarantee a fair trial and to ensure judicial economy
is to continue to give the trial court discretion on when to admit
the evidence of prior and subsequent acts. The general rule is the
trial judges may exercise discretion in excluding relevant evidence
if its probative value is substantially outweighed by the risk that
its admission will confuse the issue, mislead the jury, or create
substantial danger of undue prejudice. In making their decision,
trial courts should consider the potential prejudice to the parties,
the complexity of issues and the potential for jury confusion,
and the relative convenience, economy or delay that may result.

Webster v. Boyette, 269 Ga. 191, 195 (1998) (finding that the defendant's prior and subsequent acts of driving under the influence were relevant to the issue of whether the defendant acted with conscious indifference to the consequences in again driving under the influence, ultimately causing injury to the plaintiff); see also Wood v. D. G. Jenkins Homes, Inc., 255 Ga. App. 572 (2002).

Our trial court found that the evidence of the prior similar incident directly rebutted Defendants' contention that the events of March 1, 1997 simply could not have happened in the manner Plaintiff claimed. It further found that the rebuttal evidence tended to show NEGMC's knowledge of a defect in their policy, which resulted on more than one occasion in a pregnant woman's suffering an obstetrical emergency getting "lost in the shuffle" and failing to be transported to labor and delivery in time to avoid injury to the unborn child. The trial court found that although the admission of the evidence would lead to a lengthier trial, the probative value of the evidence far outweighed any negative impact of a further delay of the resolution of the trial, as well as any potential prejudice to Defendants. The Court also noted that it felt that the similar transaction evidence would "assist the jury in fulfilling its duty to ascertain the truth of what happened on March 1, 1997."

To say that many lessons were learned in this trial would be to master the understatement. At a minimum, I learned that you can find wonderful witnesses in the most unlikely of places and circumstances and you should never disregard an idea of finding potential witnesses until you have tried that idea and failed. Although I didn't necessarily find the type of witness I was looking for with the advertisement in the paper, it was still a good idea and it ultimately turned up one of the most powerful witnesses I have ever seen testify at trial.

Also, I learned that you should never underestimate your creativity in a trial. Although I admittedly had many conversations with myself while preparing for trial along the lines of "The judge is never going to allow this witness to testify," when the moment came I forced the issue to its conclusion, all the while pushing away my doubts to some remote, unaccessible place in my mind. When trying something new or something that may be pushing the envelope, you should always believe "you never know until you ask." A positive attitude is a winning, intangible asset at trial and everywhere.