News: Lawyers' misconduct leads to new medical liability trials

August 1, 2008

In Ohio and Michigan, physician defendants were entitld to new trials because of lawyers' misconduct.

Physicians have reason to applaud two recent court decisions-in Ohio and Michigan-in medical liability cases. In both instances, the courts said physician defendants were entitled to new trials because plaintiff attorneys misrepresented medical testimony or made irrelevant comments, harassed the defendants and expert witnesses, and improperly appealed to juries' sympathies, according to American Medical News (5/5/08).

The Ohio case, which revolves around the birth of a boy with cerebral palsy and severe retardation, is of particular interest to ob/gyns. The plaintiff alleged negligence against the physician who delivered the baby by cesarean section, the physician's employer, and the hospital where the birth took place, claiming that the infant's injuries resulted from a delay in performing the procedure. The defendants cited intrauterine growth retardation evidenced by fused joints, a grossly underweight placenta, and birth asphyxia as the cause of the child's condition. After a 3-week trial, the jury returned a verdict in favor of the plaintiff for $30 million: $15 million in economic damages and $15 million in noneconomic damages. On appeal, the trial court granted the defendants a new trial, but a court of appeals reversed the trial court's order, leading to an appeal to the Supreme Court of Ohio.

In May 2007, the Supreme Court reversed the appellate court's decision, citing the trial court's justifications for a new trial. First and foremost, according to the trial court, the economic damages award was excessive and the noneconomic damages award seemed to have been given under the influence of "passion or prejudice." The trial court also described the plaintiff's counsel as "discourteous" and "theatrical" and found that he "intentionally and repeatedly mischaracterized testimony in an attempt to mislead or confuse the jury." The court also said that counsel engaged in improper questioning of his own expert witness, exceeded the bounds of zealous advocacy by accusing the witnesses for the defense of "prevarication," and injected race and economic status into his closing argument by emphasizing the infant was poor and black while the health-care providers were powerful and wealthy.