HARTFORD, Conn. (Legal Newsline) – Medical journal articles were properly excluded from a pelvic mesh trial, the Connecticut Supreme Court has decided in ruling against plaintiffs suing their health care provider.
The court issued its ruling April 15, affirming decisions by the trial judge and jury. The plaintiffs’ appeal asked whether exhibits that would usually be inadmissible hearsay could be introduced to prove notice on the part of a defendant.
It also asked if the tort of innocent misrepresentation extends to communications made by a doctor during the provision of medical services. The court found that Dr. Brian Hines’ provision of medical services did not qualify as a “sale, rental or exchange transaction.”
“Mary Beth (Ferrell) did not seek out Hines for the purpose of purchasing a product; instead, as the complaint alleges, she sought his services in implanting the pelvic mesh,” says the opinion, authored by Justice Richard Robinson.
“Therefore, Mary Beth’s purchase of the mesh was secondary to the main purpose of the transaction, namely, to seek surgical assistance for her pelvic organ prolapse.
“Hines, as an urogynecologist and a surgeon, did not function as a seller of pelvic mesh.”
Ferrell’s gynecologist recommended she see Hines to help with her pelvic organ prolapse. He recommended implanting a mesh product would be ideal and performed the surgery in 2008.
But like the thousands of other pelvic mesh plaintiffs, Ferrell soon started to experience intense pain and bleeding. The mesh couldn’t be fully taken out, as it had become embedded in her tissue. An attempt to block the nerves affected also did not eliminate the pain.
Ferrell was forced to resign from teaching to focus on her health. She filed suit in 2011 against Johnson & Johnson and her health care providers.
Her lawyers from Tooher, Wocl and Leydon attempted to introduce two 2007 articles from International Urogynecology Journal and Obstetrics & Gynecology warning about pelvic mesh. Hines testified that he received IUJ and had read articles in O&G but had not read those articles.
The plaintiffs’ lawyers wanted to use those articles to show Hines was on notice of a controversy regarding mesh products, but the court ruled they were hearsay. The appellate court affirmed.
“Physicians possess a duty to stay abreast of the state of medical science in their areas of practice,” Robinson wrote.
“In the present case, the defendants contested the authoritativeness of the two articles at issue. As such, the trial court did not abuse its discretion by excluding them for the purpose of establishing that they were so authoritative in the field that Hines should have been on constructive notice of their content — that is, that he reasonably should have read them.
“Put differently, because something is published in a journal does not mean, ipso facto, that it represents the state of medical science at the time, such that a physician is charged with a duty to know its contents.”