On November 22, 2010, the Supreme Court of Colorado announced its decision in the matter of In Re Garrigan v. Bowen, relating to the use of expert testimony in a medical malpractice action. In the underlying case, the plaintiff patient sued the defendant anesthesiologist, claiming that the defendant negligently managed the patient's care during lumbar spine surgery, causing the plaintiff to suffer loss of vision as a result.
As part of its defense, the defendant hired an expert witness who was the lead author of a published study on post-operative visual loss. The defense expert was going to testify about the study at trial.
The Limits of Discovery
The phase before trial is known as discovery, when each party seeks to obtain facts and information about the case from the other party. A crucial component of discovery is obtaining the other party's witness list, including expert witnesses the party plans to call at trial. It is important to know what the witness will testify to in order to adequately prepare for trial.
Rule 26 (a)(2)(B)(I) of the Colorado Rules of Civil Procedure requires the party to produce a written report or summary of the testimony to be provided, along with "…the data or other information considered by the witness in forming the opinions…" to be expressed in the case. In the present case, the plaintiff objected that the defense did not list the raw data upon which the study was based, but only produced the study itself.
The trial court held that the defense witness had considered the raw study data in forming her opinions for the present case, so the defense should have provided the underlying data when requested by the plaintiff. The Supreme Court disagreed and held that the expert did not consider the underlying data in connection with the particular case, and so the defense was not required to produce such information for the plaintiff.
In making its ruling, it seems that the Supreme Court has significantly narrowed what material must be disclosed by an expert witness, regardless of the facts and circumstances of the particular case. This rule limits the trial courts' discretion to rule on what evidence should be produced in the discovery process. It also hampers the ability of one side to adequately prepare a cross-examination of the other party's witness.
This ruling cuts both ways, in that both plaintiffs and defendants typically use expert medical testimony in medical malpractice cases. With neither side being adequately prepared to examine the other party's testimony, the result of this ruling may be to make medical malpractice trials more confusing and difficult for the jury to reach an understanding of the facts.
If you believe that you or someone you love has been the victim of medical negligence or medical malpractice, contact the Colorado medical malpractice lawyers at Paulsen & Armitage, LLC, for assistance.
