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Sidebar - It Happened, But the Jury Can't Hear It · Statutes & Stethoscopes | Trial Lessons for Medical Injury Lawyers

0:03
SPEAKER_00: This is Statute 10 Steps.
0:06
SPEAKER_00: I'm Tracy Libertori.
0:08
SPEAKER_00: Every episode I take one place where medicine and the courtroom collide and break down what actually works.
0:14
SPEAKER_00: You're a clinician who wants this work or an attorney who needs an expert who can hold up.
0:19
SPEAKER_00: You're in the right place.
0:20
SPEAKER_00: Let's get into it.
0:25
SPEAKER_00: Here's a situation I've watched play out more than once.
0:29
SPEAKER_00: A resident in a nursing home falls on a wet floor near the shower room.
0:34
SPEAKER_00: She fractures her hip.
0:36
SPEAKER_00: Two weeks later, the facility installs non-slip mats, adds a sign, and changes the cleaning schedule so the floor gets mopped after the morning rush instead of during it.
0:48
SPEAKER_00: The family's attorney hears about the changes and thinks, well, that's it.
0:51
SPEAKER_00: They fixed it.
0:52
SPEAKER_00: That's an admission.
0:54
SPEAKER_00: And then the attorney learns that in most courtrooms, the jury will never hear a word about those mats.
1:00
SPEAKER_00: That surprises a lot of people.
1:02
SPEAKER_00: It surprises families, surprises new attorneys, and almost always surprises clinicians who are starting out in expert work.
1:11
SPEAKER_00: So today I want to walk through the kinds of evidence that can be true, relevant, and still stay out of the courtroom, and why the law made those choices.
1:21
SPEAKER_00: Because if you're an expert, you need to know what you can rely on, what you can see but may not be able to talk about, and what you may never see at all.
1:31
SPEAKER_00: And I remember when I first learned about these things in law school, it was a little befuddling to me, but I did understand the reasoning.
1:38
SPEAKER_00: So let me see if I can explain it for you and see if you can't come to the same conclusion as I did.
1:44
SPEAKER_00: Let's start with that nursing home floor.
1:46
SPEAKER_00: Under the federal rules of evidence, rule 407 deals with what we call a subsequent remedial measure.
1:53
SPEAKER_00: The idea is simple.
1:55
SPEAKER_00: If someone makes a change after an injury that would have made the injury less likely, evidence of that change generally can't be used to prove negligence or culpable conduct.
2:07
SPEAKER_00: Most states have a similar rule, although the details vary from state to state.
2:13
SPEAKER_00: Now, why would the law keep out something that looks so useful?
2:17
SPEAKER_00: Well, two reasons.
2:19
SPEAKER_00: First, fixing a problem is not the same as admitting you caused it.
2:23
SPEAKER_00: Facilities improve things all the time, sometimes because of an injury, sometimes because of a survey, sometimes because a new administrator had different ideas.
2:33
SPEAKER_00: Second, and this is the big one, the law wants people to make things safer.
2:40
SPEAKER_00: They want people to do things better.
2:43
SPEAKER_00: If every improvement could be shown to a jury as proof of fault, a facility would have no reason to fix things and a real reason to leave the hazard alone until the lawsuit is over.
2:57
SPEAKER_00: And nobody wants that.
2:58
SPEAKER_00: Not the families, not the residents, and not the staff.
3:02
SPEAKER_00: Now, here's the part that matters in the real world the rule has limits.
3:08
SPEAKER_00: The evidence stays out when it's offered to prove negligence.
3:13
SPEAKER_00: It may come in for other purposes.
3:15
SPEAKER_00: If the facility argues that there was no safer way to manage that floor, the fact that they put down mats two weeks later may become relevant to show that a safer option was feasible.
3:27
SPEAKER_00: If there's a dispute about who controlled the area, a change the facility made can help show they were the ones in charge of it.
3:34
SPEAKER_00: And it can sometimes be used to challenge a witness who testifies in a way the later change contradicts.
3:42
SPEAKER_00: So the rule is not a wall, it's more like a locked door that can only open with the right key.
3:50
SPEAKER_00: And the judge has those keys and gets to decide when they get to be used.
3:57
SPEAKER_00: For an expert, that means one practical thing.
4:00
SPEAKER_00: If you see a later policy change in the records, don't build your opinion on it.
4:06
SPEAKER_00: Your opinion about the standard of care has to stand on what the standard was at the time of the event.
4:12
SPEAKER_00: The attorney and the judge will sort out whether the later change ever gets mentioned.
4:16
SPEAKER_00: If your whole analysis leans on it and it gets excluded, your opinion may go with it.
4:23
SPEAKER_00: So let's move to the second category, and this one trips up clinicians constantly.
4:27
SPEAKER_00: Peer review and quality improvement material.
4:31
SPEAKER_00: Most states protect the work of hospital peer review committees and quality assurance programs.
4:37
SPEAKER_00: The details vary a lot, but the reasoning is consistent.
4:41
SPEAKER_00: Hospitals need clinicians to speak honestly about what went wrong so the next patient is safer.
4:48
SPEAKER_00: If every comment in a morbidity and mortality conference could end up in front of a jury, people would stop being honest in those rooms.
4:57
SPEAKER_00: So many states say the committee's deliberations, findings, and records are privileged.
5:02
SPEAKER_00: Meaning they generally can't be obtained in discovery or used at trial.
5:07
SPEAKER_00: Here's the practical wrinkle.
5:09
SPEAKER_00: The protection usually covers the committee's work, not the underlying facts.
5:14
SPEAKER_00: The medical record doesn't become privileged just because a committee looked at it.
5:19
SPEAKER_00: The nurse who was on the unit can still be asked what she saw.
5:23
SPEAKER_00: What's protected is the committee's discussion and conclusions about it.
5:29
SPEAKER_00: Now, think about what that means if you're an expert who used to sit on those committees.
5:35
SPEAKER_00: You may know exactly how your hospital would have analyzed a case like this one.
5:39
SPEAKER_00: You may have strong instincts about what the root cause analysis probably said.
5:44
SPEAKER_00: You don't get to fill in that blank.
5:47
SPEAKER_00: You work from the records you're given, the testimony, and your own training.
5:52
SPEAKER_00: If you ever find that a privileged document ended up in your file by mistake, stop and tell the attorney who retained you right away.
6:00
SPEAKER_00: Don't read further, don't rely on it, and don't quietly set it aside and hope nobody notices.
6:05
SPEAKER_00: That's a situation the attorneys need to handle, and handling it correctly protects you.
6:09
SPEAKER_00: Third category incident reports.
6:13
SPEAKER_00: This is where the answer really depends on where you are and how the report was created.
6:19
SPEAKER_00: In some places, an incident report prepared as part of a formal quality program is protected.
6:25
SPEAKER_00: In others, it's treated as an ordinary business record and it's fair game.
6:30
SPEAKER_00: Sometimes the answer turns on whether the report was prepared in anticipation of litigation, or who it was sent to, or whether it was part of a patient safety organization work under federal law.
6:42
SPEAKER_00: I've seen two cases with nearly identical incident reports come out differently simply because of the facilities policy and the state the case was in.
6:51
SPEAKER_00: Clinicians often ask me why this matters to them.
6:54
SPEAKER_00: It matters because the incident report is sometimes the only place where someone wrote down what happened in plain words, close in time to the event.
7:04
SPEAKER_00: If it's discoverable and it's in your file, maybe important.
7:08
SPEAKER_00: If not, the story has to be built from the chart, the witness, and the timeline.
7:12
SPEAKER_00: Either way, you need to know which situation you're in before you write.
7:16
SPEAKER_00: So ask your attorney.
7:18
SPEAKER_00: It's a completely fair question, and a good attorney will appreciate being asked.
7:23
SPEAKER_00: Fourth, offers to settle and settlement negotiations under Rule 408 and similar state rules, offers to compromise a disputed claim and the statements made during those negotiations generally can't be used to prove liability or the value of the claim.
7:42
SPEAKER_00: The reason is the same pattern we keep seeing.
7:46
SPEAKER_00: The law wants people to try to resolve disputes.
7:50
SPEAKER_00: If every offer could be waived in front of a jury as proof that the other side knew they were wrong, nobody would ever make an offer.
7:57
SPEAKER_00: Closely related are payments for medical expenses.
8:00
SPEAKER_00: Rule 409 says that offering or paying someone medical bills can't be used to prove liability for the injury.
8:08
SPEAKER_00: Again, the law doesn't want to punish decency.
8:12
SPEAKER_00: Fifth, and this is one I find genuinely interesting: apology statutes.
8:19
SPEAKER_00: A lot of states have passed laws that protect expressions of sympathy after a bad outcome.
8:25
SPEAKER_00: A physician who says to a family, I'm so sorry this happened to your mother, generally can't have that sentence used against him or her as an admission.
8:35
SPEAKER_00: The catch is that many of these laws protect sympathy, but not an admission of fault.
8:41
SPEAKER_00: I'm sorry for your loss may be protected, where I'm sorry I gave her the wrong dose often is not.
8:49
SPEAKER_00: The wording of the statute matters, the wording of the apology matters, and states really do differ on this one.
8:56
SPEAKER_00: Sixth, insurance under Rule 411.
9:01
SPEAKER_00: Whether someone had liability insurance generally can't be used to show they acted negligently or carefully.
9:07
SPEAKER_00: Jurors might assume that an insured defendant can easily pay or that an uninsured one must be careless.
9:15
SPEAKER_00: Neither assumption has anything to do with what happened in the room.
9:19
SPEAKER_00: So now we have a list.
9:21
SPEAKER_00: Later repairs and policy changes, peer review, quality material, some incident reports, settlement talks, offers to pay medical bills, some apologies, insurance.
9:31
SPEAKER_00: What ties them all together?
9:32
SPEAKER_00: Every one of them is a trade.
9:35
SPEAKER_00: The law gives up some relevant evidence in exchange for something it values more.
9:41
SPEAKER_00: Safer facilities, honest peer review, settlements instead of trials, human decency after a bad outcome.
9:49
SPEAKER_00: You don't have to agree with every trade to understand why it was made.
9:53
SPEAKER_00: And once you understand the trade, the rule stops feeling like a technicality.
9:58
SPEAKER_00: I also want to clear up a distinction that confuses almost everyone at first.
10:02
SPEAKER_00: Discoverable and admissible are not the same thing.
10:06
SPEAKER_00: Discoverable means one side can get it from the other side during the case.
10:11
SPEAKER_00: Admissible means the jury can actually hear it at trial.
10:15
SPEAKER_00: Something can be discoverable and still not be admissible.
10:19
SPEAKER_00: A later policy change might be handed over in discovery and the judge might still keep it away from the jury.
10:26
SPEAKER_00: And something that's privileged is usually not even discoverable.
10:29
SPEAKER_00: So the other side may never see it at all.
10:33
SPEAKER_00: And here's why that matters for an expert.
10:36
SPEAKER_00: You may be handed documents that the jury will never see.
10:39
SPEAKER_00: You may read a policy revision or a note about a later change, and it may color how you see the case.
10:45
SPEAKER_00: That's human.
10:47
SPEAKER_00: But your opinion has to be one you could defend using only the evidence that's actually going to come in.
10:54
SPEAKER_00: If you're not sure whether something will be admissible, that's a question for the attorney.
10:59
SPEAKER_00: Not a question for you to guess at in your report.
11:02
SPEAKER_00: Let me give you a quick example of how this plays out.
11:05
SPEAKER_00: A hospital changes its fall risk protocol a month after a patient falls.
11:09
SPEAKER_00: The new protocol requires a bed alarm for any patient with a certain score.
11:14
SPEAKER_00: The expert reviewing the case for the injured patient's attorney reads the new protocol and writes in the report that the hospital itself recognized that a bed alarm was required.
11:24
SPEAKER_00: On cross-examination, opposing counsel points out that the protocol didn't exist on the date of the fall.
11:30
SPEAKER_00: The judge has already ruled that the later change can't be used to prove negligence.
11:36
SPEAKER_00: Now, the expert's report contains a sentence the jury isn't allowed to hear, built on a document that proves nothing about the standard on the day that it mattered.
11:45
SPEAKER_00: The expert looks careless, even if the rest of the opinion was solid.
11:50
SPEAKER_00: Now take the same case with a careful expert.
11:52
SPEAKER_00: The expert asks what the standard was on the date of the fall.
11:55
SPEAKER_00: She looks at the protocol in effect on that time, at the nursing assessments, at the patient's documented risk factors, and at what a reasonable nurse would have done with that information.
12:05
SPEAKER_00: Her opinion might end up in exactly the same place, that more supervision was needed.
12:10
SPEAKER_00: But it stands on the right evidence and it survives.
12:14
SPEAKER_00: That's really the whole lesson here.
12:16
SPEAKER_00: Evidence rules aren't there to hide the truth.
12:19
SPEAKER_00: They're there to make sure that the jury decides the case on the right question, which is what happened and whether it met the standard at that time.
12:27
SPEAKER_00: As an expert, your job is to answer that question with evidence that will hold up.
12:33
SPEAKER_00: So here's the takeaway.
12:35
SPEAKER_00: Before you rely on a document, ask two things.
12:38
SPEAKER_00: Was it created before or after the event?
12:41
SPEAKER_00: And is it the kind of thing the jury will actually be allowed to hear?
12:45
SPEAKER_00: If you don't know, ask the attorney.
12:48
SPEAKER_00: It's one of the smartest questions and ask an expert can ask, and it will keep your opinion standing when everything around it gets challenged.
12:57
SPEAKER_00: This is educational information, not legal advice.
13:01
SPEAKER_00: Evidence rules vary by jurisdiction, and the attorney on the case is the one who decides how they apply.com.
13:23
SPEAKER_00: I'm Tracy Libertory.
13:24
SPEAKER_00: I'll see you on the next episode.