Virginia Lawyers Weekly VA Lawyers Weekly
The trial court correctly ruled that a defense expert in this medical malpractice case could be questioned about findings and conclusions in a medical board disciplinary consent order.
Further, two mistrial motions were properly denied because any prejudice from the complained-of statements was cured by the trial court’s jury instructions.
An $800,000 medical malpractice verdict for the plaintiff-appellee is affirmed.
Overview
Stuart sued Gross for medical malpractice, claiming that he negligently performed a blepharoplasty, a procedure to remove excess puffiness or excess skin and fat from upper eye lids. She alleges that she suffered permanent muscle damage that left her “functionally blind” in her right eye.
Gross appeals the jury verdict in Stuart’s favor on several grounds.
Expert witness
Pitman was Gross’s medical defense expert. Gross made a pretrial motion in limine to exclude certain matters in a consent order between Pitman and the Virginia Medical Board. The consent order outlines the board’s findings and conclusions that Pitman violated laws and regulations regarding his practice that occurred while he was deployed to Afghanistan. Gross argued the matters were not relevant and were prejudicial. The court denied the motion and instructed Stuart’s counsel on how to proceed when introducing this evidence at trial.
At trial, Pitman testified about his background, training, awards, honors and his medical practice during his military deployment. He offered opinions on several matters, including that Gross had complied with the standard of care.
On cross-examination, Stuart, over Gross’s objection, delved into matters contained in the consent order without expressly referring to it. Stuart asked Pitman to agree that he chose not to deny “these allegations” in an administrative hearing. On redirect, Pitman addressed the matters Stuart raised.
The trial court did not abuse its discretion as to this issue. “Dr. Pitman rendered expert opinions regarding the standard of care in Virginia based on his background, knowledge and experience and provided the jury with a detailed account of his medical practice history including his military experience and numerous deployments.
“Dr. Pitman agreed that his opinions were based on how he would expect a reasonably prudent surgeon to practice in Virginia, that all doctors practicing in Virginia should practice within that standard, and that practicing within the standard of care would include complying with state laws concerning the practice of medicine and regulations of the board of medicine. Therefore, evidence of Dr. Pitman’s adherence to the standard of care in Virginia and the laws governing his practice was relevant to the basis of his opinions and the weight to be accorded to his opinions by the jury.”
Consent
Before witnesses were called, Stuart’s counsel agreed not to raise any issue relating to informed consent. Malone, the doctor who treated Stuart after her surgery, opined that “muscle in Stuart’s right eye and tendon in her left eye were cut” because Gross breached the standard of care. “Stuart asked Dr. Malone: ‘Was there anything in Dr. Gross’s office notes to indicate that he thought he was treating ptosis?’ Dr. Malone replied: ‘He – he planned and got consent for a blepharoplasty.’”
Gross moved for a mistrial, arguing that Malone’s response implied that Gross exceeded the scope of consent. The court denied the motion and instructed the jury that “I sustained an objection to the last question put to Dr. Malone. And the Court is instructing you that you should not consider any answer that Dr. Malone may have made to that last question.”
In closing argument, Stuart’s counsel said that when Stuart saw Gross, “she went for one reason. She went to have the puffiness removed from her eyes. That’s the only reason she went there. We’re here today because Dr. Gross performed the blepharoplasty … and then after he completed the blepharoplasty, he damaged the levator muscle in the right eye and the levator tendon in the left eye after he completed the blepharoplasty.”
Gross objected and moved for a mistrial, asserting the argument raised the scope of consent issue. The court denied the motion and instructed the jury that Gross’s objection was sustained, and to disregard the statement.
“The circuit court also directed counsel ‘not to argue anything that will imply that [Stuart] came in for one thing allowing the jury to infer that somehow against her will or without cause or anything else had that second exploration.’”
The trial court did not abuse its discretion. “The record demonstrates that in both instances, the circuit court considered the probable effect of the statements, concluded that the statements were not overwhelmingly prejudicial, and that any prejudicial effect could be cured by the instructions given to disregard the statements.”
Affirmed.
Gross, et al. v. Stuart. Record No. 180758 (Published Order) Aug. 29, 2019 (Appeal from Fairfax Circuit Court). Frank Kenneth Friedman, Joseph Walton Milam III, Charles Jesse Dickenson, Susan Lea Mitchell, Matthew David Banks for Appellants. Gary Brooks Mims, Matthew Charles Perushek for Appellee. VLW 019-6-070, 8 pp.
