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Judge’s comments on med-mal premiums not ‘bias’

A trial judge’s comments about doctors leaving the profession because of rising med-mal premiums did not require reversal of a defense verdict in a premature infant’s med-mal suit.

Late yesterday, the 4th Circuit said that comments by Norfolk Senior U.S. District Judge Robert G. Doumar were not “plain error” that would win another trial for Sherita and Jonathan Murphy. The Murphys sued the Naval Medical Center in Portsmouth for injuries their son allegedly suffered during his premature delivery in December 2003.

The Murphys did not request recusal during the three-day bench trial. On appeal, they complained the judge restricted their admission of evidence and dealt with their lawyer in a “brusque, impatient or sarcastic manner,” according to the 4th Circuit’s unpublished per curiam opinion.

But they offered “only one specific statement” by the judge to demonstrate potential bias. According to the quoted transcript, the judge said during a conversation with the plaintiff’s lawyer, “As it is right now, where are we with obstetricians? I think at least three of them I know have quit the profession because of the cost on the malpractice coverage which is 90-some thousand dollars a year.”

Consider the context, the 4th Circuit panel said. Doumar made the remarks in a ruling that excluded NMC’s policies and procedures. According to the district court, such materials do not constitute the standard of care in the industry but are instead aspirational goals. Admitting these policies into evidence would discourage hospitals from articulating such aspirations.

The Murphys also failed to object at trial when the judge told them “he would be looking up the experts on the Internet to see ‘what their field of expertise is, what they have written, what they have not written.’” This was not substantial error, the panel said, as the district court indicated it was going to review information on all the experts.

The Murphys did not show any prejudice from the judge’s research, which the panel said was a “diligent effort by the district court to absorb the vast amounts of medical information” presented at trial.
By Deborah Elkins

2 comments

  1. Wow. Deborah, thanks for blogging a tenuous topic. I’m going to attach it in one of my upcoming blogs.

  2. Yes, thank you, Deborah,

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