Del. SC gives med-mal loser another trial

John O'Brien Oct. 11, 2007, 3:24pm

Chief Justice Myron Steele

DOVER, Del. - A witness apparently brought too much evidence with him to a medical malpractice trial in Delaware, and the plaintiff will now get a second chance.

The state's Supreme Court on Oct. 2 decided a trial judge erred by allowing text from a learned treatise admitted into evidence and ordered a new trial for Anne Berry, who says she lost her husband because of the poor care he received Cardiology Consultants and Dr. Andrew Doorey.

At issue was the testimony of Dr. Eric Prystowsky, Cardiology's expert witness. Prystowsky authored a set of related guidelines in a medical journal, and the trial judge admitted four pages from it into evidence.

The Supreme Court decided the evidence constituted a learned treatise, banned by Delaware Rules of Evidence, even though Cardiology argued that the charts and algorithm were not actual text.

"The fact that a portion of the exhibit contained 'charts' or 'algorithms' explained by their author on the stand constitutes no principled or meaningful distinction sufficient to overcome the bright line prohibition contemplated by (state rules of evidence)," the order says.

Howard Scott Berry underwent successful cardiac bypass surgery at Christiana Hospital, and Cardiology Consultants prescribed Amiodarone after Berry suffered atrial fibrillation.

Four months later, Berry died. His cause of death is listed as "Acute Pneumonitis due to Amiadarone Toxicity."

Still, a jury found Cardiology and Doorey were not liable. Anne Berry's attorneys apparently think the evidence in question had something to do with that.

The Court says learned treatises must be banned from evidence to avoid giving jurors a starting point for conclusions that go untested.

"Having examined the disputed exhibits, we find that the pages are not simply charts, but also that they contain paragraphs of explanatory text, which D.R.E. 803(18) clearly prohibits," the order says.

"Therefore, we find that admitting the guideline pages was an abuse of discretion because it violated D.R.E. 803(18). The consequence of so doing cannot be viewed as merely harmless. The treatises explaining the policy of D.R.E. 803(18) inform us that admitting text as an exhibit and allowing the exhibit to be carried into a jury room, as opposed to reading it aloud in a courtroom to challenge or bolster an expert's testimony, may induce a jury to freelance the jurors' own views of the meaning of the text.

"Because there is no reliable mechanism to insure that a jury will not or has not so misused the text, D.R.E. 803(18) raises a bright line bar to admitting the written text."

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