Day on Torts
Judge Koch and the Court of Appeals for the Middle Section have ruled that a summary judgment in favor of a doctor in a medical malpractice case must be reversed because the plaintiff was not given adequate time to marshal the facts necessary to respond to it and submit an affidavit necessary to defeat the motion.
I have commented before that it is a mistake for lawyers to assume that a trial judge will automatically give a plaintiff additional time to respond to a motion for summary judgment. But this case tells us that a plaintiff must have a reasonable opportunity to respond to the motion, and recognizes that “[i]t is quite conceivable that careful experts will withhold rendering an opinion based on medical records or supporting affidavits alone.”
Say it again, brother. Lawyers who handle medical negligence cases know that the medical records tell only part of the story and that if you develop, in writing, a theory of the case based on the medical records any gaps in the records will be filled with facts contrary to your theory. Am I saying that health care providers lie? Oh, sometimes – they are human. But in the ordinary course “lie” is too strong of word. It is more accurate, and certainly more polite, to say that most human beings tend to resolve doubts in favor of themselves, particularly when those doubts cannot be controverted by something written in their own hand. Hence, a careful expert, and a careful lawyer, will not assume facts that only can be found in the gray matter of an opponent or potentially hostile witness.
I would not suggest that one must always be permitted to depose a defendant in a medical malpractice case before responding to a motion for summary judgment supported only by that doctor’s affidavit. But I confess that I cannot think of a circumstance where I would not do so.
Here, the doctor was deposed but refused to waive signature (which is his right) and pushed for a quick hearing on his pending motion (15 days after his deposition and before the defendant had signed off on the transcript). Once again, taking a position on the facts based on an unsigned deposition permits potential mischief. Am I paranoid? Perhaps. But, as the saying goes: “Fool me once, shame on you. Fool me twice, shame on me.”
The patient’s lawyer here did a good job creating a record that permitted the Court of Appeals to reverse the trial judge. All of us can learn from his efforts. However, we would all be well-adivsed to strongly consider sending written discovery early in a case to avoid the argument that we have been foot-dragging. Once again, I suppose that there is some type of case out there where once could defend not sending discovery seeking to identify fact witnesses and experts, but I cannot think of one.
The decision is Grisham v. McLaughlin, No. M2004-01662-COA-R3-CV, filed on June 12, 2006. Read it here.