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Medical Malpractice – Delayed Diagnosis – Hydrocephalus

In this med-mal suit alleging defendant doctors were negligent in failing to timely diagnose decedent’s hydrocephalus, the trial court did not abuse its discretion in declining to reopen the case to allow plaintiff to move for admission of a medical record.
There is a single assignment of error: That the circuit court erred in refusing to admit into evidence Exhibit 18A, a medical record transcribed on April 21, 2001 at Inova Alexandria Hospital, consisting of an addendum to a report of a magnetic resonance imaging scan of decedent’s brain made while he was a patient at the hospital.
Decedent’s attending neurosurgeon since 1999 was attending a conference in Toronto at the time decedent was admitted to the hospital. That defendant neurosurgeon made a handwritten notation on his copy of the Alexandria report that he had not received it until May 2, 2001, after decedent’s death.
At trial, plaintiff offered no evidence to refute defendant’s assertion of the time he received the Alexandria report and there was no evidence that any of the other defendants had ever seen it before decedent’s death. The court marked the report Exhibit 18A for identification and gave plaintiff’s counsel an opportunity to lay a foundation for its admission.
Plaintiff’s counsel cross-examined that doctor on the content of the report and timing of its receipt, and was allowed to refer to the report in his closing argument. Plaintiff’s counsel never moved the court to admit Exhibit 18A in evidence until after the evidence was closed, the parties had rested, an alternate juror had been excused, the court had instructed the jury and the jury had retired to consider its verdict. The trial court denied the motion at that point to admit the exhibit.
Even if the exhibit might properly have been admitted into evidence, the trial court was given no timely opportunity to do so. A motion to admit evidence after the evidence has been closed comes too late. The court might, in its discretion, have permitted the reopening of the trial for that purpose, but it did not abuse its discretion in refusing to do so, particularly in light of the plaintiff’s abundant opportunity to make a timely motion for admission of the exhibit during the five days of trial.
The court affirmed the judgment of the circuit court.
Reifman v. Gorsen, No. 061230, April 20, 2007; Fairfax Cir.Ct. VLW 007-6-067, 3 pp.

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