New Trial Granted in Medical Malpractice Case

Ron was diagnosed with a tumor in his kidney. A urologist performed surgery to remove the kidney. Ron’s abdominal aorta was lacerated during the surgery. A vascular surgeon was called in to repair the aorta.


Immediately after surgery, Ron developed a condition in which increased pressure in one compartment of the body compromises the tissues in that compartment. Even after a procedure to relieve the pressure, he continues to suffer from pain in his left leg that interferes with his ability to stand for long periods and with his ability to engage in his usual activities.


Ron settled with one of the surgeons. The claims against another doctor did not settle and went to a jury trial.


Ron’s attorneys retained a urologist-expert. About a month before trial, Ron’s attorneys learned that the expert had fallen and ruptured his spleen, and would not be available for trial. The attorneys found a new expert, but this expert withdrew when he discovered a conflict of interest—he was well acquainted with one of the defendant’s partners. Ron’s attorneys found yet another expert. However, a judge excluded this expert because he was disclosed late.


A different judge presided over the trial. At trial, the doctor’s attorney committed repeated acts of misconduct. The attorney made speaking objections and referenced documents that the judge had ruled would not be admitted.


The trial judge granted a motion for a new trial. The defendant doctor appealed. The Court of Appeals reversed the granting of a new trial.  The Washington Supreme Court ruled that the trial judge’s ruling was proper on both grounds—the previous judge’s ruling excluding the witness was erroneous and the misconduct of defense counsel warranted a new trial.[1]


The Supreme Court ruled that the most severe discovery sanctions—such as excluding witnesses—may be imposed only upon a showing that (1) the discovery violation was willful or deliberate, (2) the violation substantially prejudiced the opponent’s ability to prepare for trial, and (3) the court explicitly considered less severe sanctions. Here there was no showing that the conduct will willful or deliberate—other than a bare allegation by the defendant—and the judge who excluded the witness did not consider on the record any lessor sanctions.


The Supreme Court noted the reasons that attorney misconduct is prejudicial and may be grounds for a new trial.


The Rules of Evidence impose a duty on counsel to keep inadmissible evidence from the jury. Persistently asking knowingly objectionable questions is misconduct.  Even where objections are sustained, the misconduct is prejudicial because it places opposing counsel in the position of having to make constant objections.  These repeated objections, even if sustained, leave the jury with the impression that the objecting party is hiding something important. Misconduct that continues after warnings can give rise to a conclusive implication of prejudice.  


The prejudice finding was also supported by the fact that one member of the jury felt it

necessary to inform the judge’s clerk that the juror felt “like strangling a couple of lawyers.”


This case shows how slow and burdensome litigation can be. The case was set for trial in 2008, then continued to 2009. The Supreme Court issued its opinion in 2012.


Most cases settle, and even when they do not, they usually do not take this long to litigate. But, the sooner a personal injury attorney is on board and preparing the case as if it will be litigated to verdict, the better the chances of a reasonable settlement.

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By personal injury attorney Travis Eller

[1] Teter v. Deck, 174 Wn.2d 207 (2011).

Posted in Medical Malpractice and tagged , .