9.11 Other Evidentiary Issues

• Library: Medical Malpractice Law in Virginia (Virginia CLE) (2017 Ed.)

9.11 OTHER EVIDENTIARY ISSUES

9.1101 Negligence of Nonparties. Defense counsel may attempt to introduce evidence that a nonparty health care provider was negligent during treatment provided concurrently with or subsequent to the treatment by the defendant. In most instances, this type of evidence should be excluded

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for lack of relevancy. Only when it can be shown that the nonparty's negligence alone caused the injury, without the defendant's negligence contributing in the slightest degree, will a court admit evidence of a nonparty's negli-gence. ⁷³ When it is patent that the defendant's alleged negligence contributed to the outcome, granting a motion in limine to exclude evidence of a non-party's negligence is appropriate. ⁷⁴

9.1102 Habit Evidence. A recurring feature of medical malpractice litigation is a professed lack of memory of the salient events by defendant health care providers. Defense counsel instead elicits from the witness information about his or her "usual practice," a tactic calculated to suggest nothing untoward on this occasion and to thwart cross-examination about the occurrence itself. Virginia has adopted by statute Federal Rule of Evidence 406 permitting admissibility of habit evidence. ⁷⁵ In order to be admissible, examples of habit must be sufficiently numerous and regular. ⁷⁶

Additionally, a diagnostic or therapeutic response to a patient's condition lacks the nonvolitional characteristic required for admissible habit evidence. ⁷⁷ Therefore, counsel can often successfully block the defense tactic of relying upon "habit" evidence. When the objection is raised at the time the testimony is offered, counsel should ask to voir dire the foundation of the testimony out of the presence of the jury. If the "habit testimony" is excluded or limited, a defendant who previously claimed a lack of memory will have a difficult time communicating to the jury his or her version of the events.

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9.1103 Dead Man's Statute. In wrongful death actions and cases where the injured patient is unable to testify, testimony of a defendant or an allegedly negligent employee of a defendant will often require corroboration because of the Dead Man's Statute. ⁷⁸ A plaintiff who has spotted a Dead Man's Statute issue must decide whether to raise the objection pretrial by a motion in limine ⁷⁹ or wait until trial, where it may be raised either as an objection contemporaneously with the testimony or as a motion to strike the testimony when the defendant has rested. ⁸⁰ The decision will turn upon several factors. Can the...