Defense Expert Not Allowed to Blurt Out Testimony About ‘Malpractice Crisis’

On Behalf of | Jan 26, 2010 | Medical Malpractice

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.


  1. The plaintiff Erik Pin was a minor who brought this medical malpractice action ppa against Dr. David Kramer, an orthopedic surgeon.
  2. When Eric was 10 he had a scoliosis examination in school that revealed an abnormality in his back.
  3. His pediatrician referred him for X-rays and a CT scan. These tests revealed a benign bone tumor.
  4. Kramer eventually removed the tumor when it began causing irritation. However the tumor grew back.
  5. At no time, before, during or after his surgery, did Kramer order any X-rays or scans to see if he had removed the entire tumor or to monitor the plaintiff to see if it had regrown. One of the allegations of negligence was Kramer’s failure to properly follow Erik’s progress after the surgery.
  6. At trial, the defendant called Dr. Todd Albert, an orthopedic surgeon, as his expert. Albert testified that the defendant had complied with the standard of care at all times. On direct examination, Albert stated that the standard of care did not require additional radiological tests. Thereafter, Albert stated that he, however, would have ordered such tests. Defense counsel then asked Albert to explain why he would have ordered such tests. Albert stated:
    1. “Well, a few reasons. One, I am with residents, fellows, and medical students all the time. So, we are ordering a lot of tests on everything so they have the opportunity to read them. And you could say, oh, that’s wasteful, but that is part of being at a teaching institution. One. It is for teaching purposes as much as anything, for they have one more chance to look at just one more–they have another dot in their exposure.
    2. “The second reason is much different than in this part of the country and this state. I live in the worst malpractice community in the world. And people–and we practice a lot of defensive medicine. It’s true. It’s unfortunate, but it’s true. And so we order way more tests. You hear about the cost of medicine going up. We are the epicenter of it because we have more doctors leaving because they can’t get insurance and things like that. So, we order way more tests than are necessary to protect ourselves. And that’s just a fact. And so we get acclimated to practicing like that. So, there’s lots of reasons.”
  7. Plaintiff’s counsel moved for a mistrial on the basis that Albert’s comments were extremely prejudicial to the plaintiff or, in the alternative, a curative instruction.
  8. The defendant disagreed that a mistrial was necessary; however, defense counsel stated that, if the court wanted to instruct the jury to ignore what Albert had said, he would not object.
  9. In discussing plaintiff’s motion, the court focused on potential prejudice to the defendant, not the plaintiff, due to Albert’s use of the word “insurance.” The court declined to grant a mistrial or to give a curative instruction because it reasoned that “the court did not find the comment to be prejudicial and that, if anything, [the use of the word ‘insurance’] affected the” defendant not the plaintiff.
  10. The jury returned a defendant’s verdict; and, this appeal followed.
  11. The Appellate Court reversed the decision of the trial court.

The primary problem with Albert’s comments was not the mention of insurance. While it is true that there is a general prohibition against mentioning insurance to protect a defendant from a jury choosing to award damages because an insurance company is the real party paying any award, in this case the topic of insurance arose in the context of discussing the difficulties that doctors face in the current legal climate. Therefore, although he word “insurance” was used, it was in a context that was helpful, not harmful to the defendant. Albert’s “testimony painted a picture sympathetic to physicians, portraying them as constantly forced to defend against malpractice claims and to bear the exorbitant cost of insurance. Whether or not the comment has merit in public discourse, it had no place in this trial.” A curative instruction should have been given and it was harmful error for the trial court to have failed to do so.