I defended physicians, nurses and hospitals in medical malpractice cases for a few years. Several times we discovered evidence that gave our clients the winning edge. The evidence did not come from the medical records but from other documents or statements submitted by the plaintiff or by the plaintiff’s family members to other entities. This is a cautionary entry. I caution anyone who is suing or testifying to think back to any source which might have contrary information whether from the deponent or any other person.
For example, in one case, a failure to diagnose a pulmonary embolism resulting in death, the deceased patient’s mother-in-law took the stand. She took the stand and lied hoping that her son would receive a large damages award, which would trickle down to her. She was the key witness for the opposition, the plaintiff/patient’s side. She testified at deposition and at the trial that her daughter-in-law told her that she was having shortness of breath on the way to the ER. This was critical to their case because their argument was that because she complained of shortness of breath (in addition to other symptoms), she should not have been discharged and should have had an additional work-up which would have revealed the pulmonary embolism and prevented her death the following day. The medical records evidenced thatshortness of breath was not one of her complaints. If she had mentioned this, it would have been in the medical record. Yet, it was absent, though she had multiple opportunities to make such a complaint in conversations with several medical professionals, all of whom testified that she never mentioned shortness of breath.
By the way, when the mother-in-law walked in the court room, mouths dropped to the floor. She looked trashy, and undoubtedly she thought she looked classy. She was in her late fifties with bright red lipstick, dark curly big hair, a way too short skirt, stiletto heals, and overdone makeup and jewelry. The widower son, did not shine up very well either, looking gumpy, un-kept and apathetic.
I did some digging. The mother-in-law was called to the house on the day that the daughter/patient collapsed. The police were called to the scene and she spoke to them. The police reported what she said to them. The report stated that she was called to the house after her daughter collapsed and called emergency and the police arrived. She told the officer that she had taken her daughter-in-law to the ER the day before. Her daughter-in-law told her that she was anxious and wanted to go to the ER. When the mother-in-law was on the stand testifying at the trial, she was asked whether her daughter-in-law’s health was of the upmost importance and she responded of course it was. She was then asked whether she understood how important it would be to tell medical providers and other people investigating what went on all the symptoms that her daughter-in-law complained of and again she responded in the affirmative. Out then came the police report and the well then, why is that not indicated in the police report. She responded by stating that the police were lying and we were trying to make her look “stupid”. She could not recover her credibility and it was all down hill from there.
The short point is, that she probably never thought that her conversation with the police on that day would come back to haunt her in that way. She did not think everything through and her perjury was skillfully revealed. Had this evidence not been discovered, she might have gotten away with it and her son might have unjustly won millions of dollars, the cost of which would have been spread across innocent consumers and taxpayers. Evidence that impeached a critical witness gave our clients the winning edge.