Defense Verdict Affirmed in Massachusetts Medical Malpractice Case in Which Settling Defendant Pled the Fifth

When a Cape Cod medical malpractice lawsuit goes to trial, there are usually multiple witnesses who testify in front of the jury. This includes not only the parties to the case but also the expert witnesses who are retained by each side to render an opinion as to the applicable standard of care, whether the defendant violated that standard, and the injuries suffered by the victim if so.

Sometimes, a particular witness cannot be present at trial, so his or her testimony is secured outside the courtroom, in advance, via a deposition. However, there are limitations on when a deposition may be used in lieu of live testimony.

Facts of the Case

The plaintiff in a recent case was the husband of a woman who allegedly died from complications related to knee surgery she underwent in 2010. The plaintiff’s medical malpractice and wrongful death action alleged that the defendant anesthesiologists had been negligent with regard to the medical care that they provided to the plaintiff’s wife. While the action was pending, one of the defendants lost his medical license and was indicted for Medicare fraud. That defendant filed a motion to bifurcate and stay the trial, invoking his Fifth Amendment privilege against self-incrimination. The trial court denied the motion.

The second defendant filed a notice that he intended to use portions of the first defendant’s deposition at the upcoming trial because the first defendant was “unavailable” due to his invocation of the Fifth Amendment. Thereafter, the plaintiff settled his case with the first defendant, and the case proceeded to a jury trial with the second defendant. Portions of the first defendant’s deposition were read to the jury at the second defendant’s request (although some portions were excluded). The jury returned a verdict for the second defendant, and the plaintiff appealed.

Decision of the Massachusetts Appeals Court

The appellate court affirmed. Although the plaintiff argued that the trial court judge had erred in permitting the first defendant’s deposition transcript to be read into evidence, the appellate court pointed out that a lower’s court’s evidentiary ruling will only be disturbed if there has been an abuse of discretion or other legal error. The reviewing court found no error in the trial judge’s determination that the witness had sufficiently demonstrated his intent to invoke the privilege against self-incrimination and that the second defendant had been unable to procure the first defendant’s presence at trial. Thus, the requirements of Mass. R. Civ. P. 32(a)(3)(D) were satisfied, and the first defendant’s deposition was properly admitted.

Experienced Cape Cod Medical Malpractice Lawyers

Those who suspect that a loved one’s death was due to the negligence of a doctor, nurse, or other health care provider should consider speaking to an attorney about the possibility of a malpractice lawsuit. At the Law Offices of John C. Manoog, III, our knowledgeable Cape Cod medical malpractice lawyers will be happy to talk to you about your case at no charge. You can reach us for an appointment at 888-262-6664. Please be mindful that there are both a statute of limitations and a statute of repose for medical malpractice claims in Massachusetts, so do not delay in speaking to a lawyer about filing a claim.

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