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January 2010 Archives

Defense Expert Not Allowed to Blurt Out Testimony About 'Malpractice Crisis'

The jury verdict in favor of the defendant was reversed because the trial court failed to give a curative instruction to mitigate the damage likely caused by the defense expert's testimony regarding his concern about malpractice claims, the need to practice "defensive medicine," the rising cost of health care, doctors being forced out of practice, etc. In Pin v. Kramer, 119 Conn. App. 33 (2010) (January 19, 2009; Bishop, J.; Trial Court - Shay, J.), the Appellate Court held that the defense expert's testimony was highly prejudicial to the plaintiff. The thrust of the expert's testimony was to draw the jury's attention to the claimed economic and professional hardships faced by doctors due to claims made against them. The inference from such comments was that the only reason the defendant would have ordered additional tests on the plaintiff was to protect himself against litigation. The jury would not have ignored this implication in assessing the defendant's liability, thus, the court's failure to give a curative instruction was harmful error.

Circumstantial Evidence May Be More Certain, Satisfying and Persuasive

In a recent Apellate Court victory by this office, the court in Curran v. Kroll, 118 Conn. App. 401 (2009) (December 15, 2002; Flynn, C. J.; Trial Court - Berger, J.), the Appellate Court reaffirmed the importance of circumstantial evidence and reversed the directed verdict entered by the trial court in favor of the defendant doctor in a medical malpractice failure to warn case. It had been necessary to resort to circumstantial evidence during trial because plaintiff's decedent was the only person who had direct evidence of her conversations with the defendant, but she had been killed by the doctor's malpractice. The Appellate Court agreed that while there was no direct evidence that the defendant breached the standard of care in failing to warn the decedent of the risks of a prescribed course of treatment, there was circumstantial evidence that could have led to a reasonable inference that the standard had been breached, if the jury had chosen to credit such evidence. "[T]here is no distinction between direct and circumstantial evidence [so] far as probative force is concerned....In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence."

High Court to Decide if Expert's Outburst was Proper

In Pin v. Kramer, 119 Conn. App. 33 (2010), as reported here, the Appellate Court held that it was an abuse of discretion for the trial court to fail to give a curative instruction following the defense expert's rant about the need to practice defensive medicine to protect against malpractice claims, the rising cost of medical care, doctors being forced to leave the practice of medicine, etc. The Appellate Court reversed and remanded for a new trial, but the defendant petitioned for cert., which was granted. The Supreme Court will now decide whether the Appellate Court was correct in determining that the trial court improperly failed to give a curative instruction and, if such an instruction was required, was the failure to give it harmful.

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