Barnett v. Hidalgo

732 N.W.2d 472 (2007)

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Nature of the Case

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Facts

James died from a rare blood disorder after undergoing gall bladder surgery. Jame had a low platelet count after surgery but there were no surgical complications so James was discharged. Two days after being discharged James returned with complaints of disorientation. After a computerized tomography (CT) scan indicated that James had not suffered a stroke, further MRI testing was recommended. James died before it could be performed. James suffered from a rare clotting disorder, thrombotic thrombocytopenic purpura (TTP), that required immediate blood plasma infusions and transfusions. If left untreated, as it was here, TTP is nearly always fatal. P filed a medical malpractice action. P’s affidavits of merit were signed by a general surgeon, Dr. Scott Graham; a neurologist, Dr. Eric Wassermann; and a hematologist, Dr. Rachel Borson. Graham claimed that Ds failed to take sufficient precautions to prevent a postsurgical infection. Wassermann's affidavit stated that D’s misdiagnosed James’ condition as a stroke and failed to take proper precautions. Borson's affidavit stated that Ds should have performed further testing, should have stabilized James before discharging him from the hospital, and should have diagnosed TTP and initiated treatment. At trial, the testimony of P’s three experts differed from their statements in their depositions and affidavits of merit because of the new evidence they obtained. P moved to exclude the admission of her experts' affidavits of merit. The trial court admitted the affidavits of merit as substantive evidence. The experts were examined on everything. The jury found in favor of Ds and Ps filed a motion for a new trial, which the trial court denied. P appealed claiming that she was entitled to a new trial because the admission of the affidavits of merit as substantive in part denied her a fair trial. The Court of Appeals held that the affidavits of merit constituted inadmissible hearsay that could not be used as substantive evidence. It held that the affidavits of merit were inadmissible as impeachment evidence because they were not inconsistent with the experts' testimonies at trial, which were based on new facts developed throughout the course of discovery, and that even assuming that the use of the affidavits for impeachment purposes was proper, the trial court improperly permitted the affidavits to be given to the jury as exhibits. Ds appealed.