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FMG Law Blog Line

Posts Tagged ‘evidence’

Cumulative Does Not Always Mean Harmless

Posted on: May 8th, 2013

By: Scott Rees

In Thomas v. The Emory Clinic, Inc. (March 26, 2013), the Georgia Court of Appeals addressed the issue of a trial court improperly allowing hearsay evidence during a trial when that improper evidence is cumulative of other evidence in the case. Typically, allowing inappropriate, but cumulative, evidence is not harmful in terms of a jury verdict, and therefore does not require reversal. However, in this medical malpractice case, the court thoroughly analyzed this issue and determined the trial court committed reversible error in allowing hearsay evidence to be heard by the jury, despite that evidence being cumulative of other evidence. The court determined that because the hearsay evidence went to the core issue of the case (whether the neurosurgeon committed malpractice by leaving too much cotton fiber in the patient’s brain) it was reversible error to allow it, even though it was cumulative of other evidence in the case. Because the plaintiff needed to only prove her case by a preponderance of the evidence, the court reasoned, allowing the improper evidence to bolster the proper evidence could easily tip the scales in the defendant’s favor.

Does the Fourth Amendment Allow for a Forced Blood Draw after a DUI? – Part II

Posted on: April 22nd, 2013

By: Sun Choy

In a previous post, I posed this question in light of the oral argument in Missouri v. McNeely. This week, the Supreme Court answered by holding that requiring a warrant under the Fourth Amendment “must be determined case by case based on the totality of the circumstances” confronting the officer. In doing so, the Court rejected the government’s bright-line test in favor of the familiar “totality of the circumstances” test. The Court was aware of the different levels of technology available to officers across the county and noted that “technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency.”

What I take away from this decision is that officers must be able to articulate a “plausible justification” for failing to obtain a warrant before drawing blood. If the evidence shows that the particular warrant process of the jurisdiction would not have “significantly increase[d] the delay before the blood test,” the Fourth Amendment would be violated.

Supreme Court Update: Drug Dog’s Sniff is “Up to Snuff”

Posted on: February 21st, 2013

By: Brian Dempsey

In a unanimous decision, the Supreme Court concluded that an “alert” by a well-trained narcotics detection dog establishes probable cause for the search of a vehicle’s interior for further evidence of illegal drugs.  Florida v. Harris, Docket No. 11-817 (Feb. 19, 2013).  Emphasizing that probable cause is a practical, commonsense standard, the Court rejected the Florida Supreme Court’s rigid prescription that the government produce certain elements of proof in order to show that a canine’s sniff and alert is sufficiently reliable to constitute probable cause.  Rather, the opinion, authored by Justice Elena Kagan, allows a court to presume that a dog’s alert is reliable, so long as there is some evidence that the dog is certified after being tested in a controlled setting or that the dog has recently and successfully completed a training program which included such an evaluation.  This presumption, of course, can be rebutted by evidence showing that the training or evaluation was faulty or insufficient.  In sum, the Court instructed that the “question is whether all the facts surrounding a dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.  A sniff is up to snuff when it meets that test.”

The Court has not yet issued its opinion in Florida v. Jardines, but the Court granted certiorari to decide whether a dog sniff at the front door of a suspected marijuana grow house by a trained drug dog is a search requiring probable cause and a warrant.  Because of the enhanced privacy expectations which attach to a private home (as opposed to a vehicle on public roads), we can expect that Court will apply a greater degree of skepticism and scrutiny to the investigative conduct at issue in Jardines.

Stay tuned.

When is Medical Care Not an Emergency? Clever Lawyering Finds a Loophole in the Stringent Gross Negligence Standard

Posted on: November 5th, 2012

By: Mike Flint and Laura Broome

In 2005, the tort reform passed by the Georgia legislature included a statute that changed the standard for suing emergency room health care professionals in medical malpractice actions. The statute in essence states that no health care provider who provided emergency medical care in a hospital emergency department, or surgery suite, etc., after the patient has been treated in the emergency room, shall be held liable for an action in medical malpractice unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence. The standard for liability of emergency medical care personnel was changed thereby from ordinary negligence by a preponderance of the evidence to gross negligence by clear and convincing evidence.

Case law further defines the new gross negligence proven by clear and convincing evidence standard as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” In other words, gross negligence has been defined as “equivalent to [the] failure to exercise even a slight degree of care.” “Clear and convincing evidence” is “a more stringent standard than ‘preponderating’ and requires a greater quantum and a high quality of proof in plaintiff’s favor.” As a result of this higher standard, there has been far fewer malpractice lawsuits filed against emergency room professionals.

Despite these hurdles, a recent trial suggests that a jury may be allowed to determine whether emergency medical care was provided in the emergency room, thereby triggering the higher standard in the first place. In the recent case, the plaintiff was presented to an emergency room with severe leg pain, but was sent home with a diagnosis of a skin rash, despite not being able to walk. The plaintiff later returned to the emergency room by ambulance after she was found unresponsive, and was determined to have severe blockage in her leg arteries. The plaintiff’s legs were both amputated below the knees a few days later.

Plaintiff’s counsel argued that the lower standard of ordinary negligence under a preponderance of the evidence standard should apply because the legal definition of emergency medical care does not include non-urgent patients in stable condition. Plaintiff’s counsel claimed that this plaintiff was considered to be a non-urgent patient in stable condition during her first trip to the emergency room.

The judge allowed the jury to decide whether the plaintiff received emergency medical care, and thus whether the gross negligence standard or ordinary negligence standard applied. The jury determined that the care the plaintiff received in the emergency room during the initial visit was not emergency medical care, and thus applied the ordinary negligence standard in the case.  In doing so, the jury further decided the emergency room defendants were negligent in failing to diagnose the plaintiff’s blocked arteries during the initial emergency room visit, and awarded $5 million to the plaintiff in damages.

It will certainly be interesting to see if other courts follow this lead in allowing juries to decide which standard applies.