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A trial court may reasonably judge that impeachment during cross-examination, rather than exclusion of competent trial testimony, is a sufficient response to inconsistencies between an expert's trial and deposition testimony about the standard of care.
Appellant Evelyn Aikman was admitted to the Washington Hospital Center for surgery to repair her mitral valve. After the cardiac surgeon performed the surgery, appellant experienced weakness due to a stroke. Appellant sued the cardiac surgeon and his former practice group for medical malpractice, and alleged that the injuries resulted from air that had accumulated in her heart during the surgery. The jury returned a verdict for the cardiac surgeon and his former practice group. Appellant’s motion for a new trial was denied. Appellant challenged the decision denying her motion for new trial, arguing that the trial court judge erred by instructing the jury that a doctor was not negligent simply because his efforts were not successful. Appellant also alleged that pre-trial discovery in the case revealed that there was no contemporaneous notation in appellant’s medical records indicating that the doctor had performed an air drill before completing the surgery. However, during trial, a surprise expert testimony regarding this matter was allowed. Appellant argued that the trial court judge abused his discretion by not excluding the surprise testimony entirely, as a discovery sanction.
The appellate court found that the trial court did not err in giving a jury instruction that the jury could not infer negligence simply due to a bad outcome since the evidence supported giving that instruction. Moreover, the trial court did not err in allowing the jury to hear, and consider, evidence not disclosed during discovery that a video image showed the cardiac surgeon performing a preventative procedure known as an "air drill" as application of D.C. Super. Ct. R. Civ. P. 26(b)(4) disclosure factors showed the patient was not prejudiced by the belated disclosure, and the cardiac surgeon was properly allowed to testify about the "air drill" procedure he routinely performed, as such habit evidence was admissible. According to the court, courts in many jurisdictions have allowed evidence of a medical practitioner's routine practice as evidence relevant to what the practitioner did on a particular occasion.