Aumand v. Dartmouth Hitchcock Medical Center

Decision Date01 May 2009
Docket NumberCivil No. 06-cv-434-JL.
PartiesDeborah C. AUMAND and Francis Coffey v. DARTMOUTH HITCHCOCK MEDICAL CENTER.
CourtU.S. District Court — District of New Hampshire

Gary B. Richardson, Heather M. Burns, Upton & Hatfield LLP, Concord, NH, for Plaintiffs.

Thomas V. Laprade, Lambert Coffin, Portland, ME, for Defendant.

ORDER

JOSEPH N. LAPLANTE, District Judge.

The plaintiffs, who are the executor of the estate of Katherine Coffey and Coffey's widower, Francis Coffey, have sued Dartmouth Hitchcock Medical Center, alleging that it provided negligent medical care to Coffey during her hospitalization there, leading to an infection, the amputation of parts of her hand, and ultimately her death.1 This court has jurisdiction under 28 U.S.C. § 1332(a)(1) (diversity). Each side has filed a number of motions in limine seeking to exclude certain evidence from the upcoming trial. After oral argument, and for the foregoing reasons, the court makes the following rulings on the motions in limine.

I. Background

The following facts are drawn from the allegations of the plaintiffs' third amended complaint and their representations in the motions themselves. Coffey, who was seventy-eight years old at the time, was discharged from Dartmouth Hitchcock following successful coronary bypass surgery, but was readmitted two days later complaining of shortness of breath. Detecting low blood sugar, hospital personnel proceeded to administer several doses of glucose, or "D-50," to Coffey over a period of roughly six hours, by way of a catheter inserted into her left hand. After the last of these administrations, however, hospital personnel noted that her left hand appeared blue and swollen, so the catheter was removed and replaced with one in her left elbow.

Coffey soon began complaining of numbness in her hand, leading hospital personnel to believe that the glucose had "infiltrated" or "extravasated," i.e., penetrated the tissue outside of her veins. Though Coffey was discharged from Dartmouth Hitchcock approximately two weeks later, transferring to Springfield Rehabilitation Center in Springfield, Vermont, the condition of her left hand continued to deteriorate. She was readmitted to Dartmouth Hitchcock roughly one week later, when two of her fingers and part of another on her left hand—which had undergone mummification—were amputated.

After the surgery, Coffey reentered Springfield Rehabilitation for about two weeks, during which both pus and blood were observed draining from her wounds. She also saw her surgeon, who concluded that Coffey would need a skin graft to her left hand. That procedure, performed during a one-day visit to Dartmouth Hitchcock, used skin harvested from Coffey's abdomen.

In two weeks, Coffey returned to Springfield Rehabilitation, complaining of shortness of breath and dry heaves, followed by a high fever, low blood pressure, and respiratory distress which appeared after her admission. Testing indicated a serious infection, specifically methicillin-resistant staphylcoccus areus, or MRSA, which the plaintiffs characterize as a bacterial strain often contracted during hospital stays. The next day, Coffey died from a heart attack brought on by the infection.

Both the doctor who performed an autopsy, and another whom the plaintiffs retained as an expert witness for this litigation, identified the wounds from the amputation as the probable portal of entry for the MRSA. The plaintiffs claim that the amputation, in turn, came about only as a result of Dartmouth Hitchcock's alleged negligence during its treatment of Coffey's low blood sugar during her first readmission to that hospital.

Specifically, the plaintiffs claim that Dartmouth Hitchcock violated the standard of care by (1) failing to provide Coffey with "appropriate nutrition," (2) "failing to fully inform the attending physician," (3) improperly administering glucose, particularly by (4) "pushing" it through the catheter into her hand, and (5) not recognizing promptly that the glucose had infiltrated and caused extravasation. The third amended complaint asserts a medical malpractice claim on behalf of Coffey's estate, as well as loss of consortium claim on behalf of Francis Coffey; a third claim, for negligent infliction of emotional distress on behalf of Francis Coffey, has been voluntarily dismissed. Dartmouth Hitchcock denies any deviation from the standard of care, or any link between its actions and Coffey's injuries, up to and including her death.

II. Analysis
A. Plaintiffs' motion "regarding infiltration/extravasation"

The plaintiffs seek to prevent Dartmouth Hitchcock from asserting at trial that Coffey did not, in fact, experience infiltration of the glucose, arguing that the hospital has not disclosed any expert testimony to that effect. In response, Dartmouth Hitchcock explains that, while it does not intend to proffer such expert testimony, it nevertheless remains free to present other kinds of evidence tending to suggest than no infiltration occurred, as well as to question whether the plaintiffs have carried their burden to prove otherwise.

Dartmouth Hitchcock has the better of this argument. While New Hampshire law requires expert testimony to prove the essential elements of a medical malpractice case, i.e., the standard of care, a breach of that standard, and causation, N.H.Rev. Stat. Ann. ("RSA") § 507-E:2, it does not follow that a party to such a case cannot take a position on what did or did not occur as a factual matter without expert testimony affirmatively supporting that position.2 The only limit on the positions a party can take—as distinguished from the evidence a party can introduce—would seem to be the general rule against "arguments prejudicial to the opposing party which are not supported by facts in evidence, or which are beyond the limits of fair or sound argument, unduly influencing or distracting the jury."3 75 Am.Jur.2d Trial § 414, at 632 (2007) (footnote omitted).

Dartmouth Hitchcock's anticipated arguments do not fit that description. Based on the evidence cited in its objection to this motion, Dartmouth Hitchcock has a factual basis to argue that no infiltration occurred. And, even without that evidence, Dartmouth Hitchcock remains free to argue that the plaintiffs have not carried their burden to show that infiltration did occur. Indeed, at oral argument, the plaintiffs more or less withdrew this motion, characterizing it as simply an attempt to prevent Dartmouth Hitchcock from offering undisclosed expert testimony that Coffey did not experience infiltration or extravasation of the glucose, which is a different matter treated by a different motion in limine. See infra Part II.E. On its face, this motion requests much broader relief, but in any event it is denied.

B. Plaintiffs' motion to exclude references to their amending their complaint

The plaintiffs seek to prevent Dartmouth Hitchcock "from making any reference to the fact that [their] Complaint in this case was amended" to allege additional theories of negligence not set forth in prior versions of the complaint. Though statements in a pleading are admissible against the pleader as admissions by a party-opponent, see Fed.R.Evid. 801(d)(2), even if the pleading has since been amended to delete them, this court has in a prior case disallowed their use to impeach the pleader's credibility on the theory that his or her allegations have changed over time. See L'Etoile v. New Eng. Finish Sys., Inc., 575 F.Supp.2d 331, 339-40 (D.N.H.2008).

As this court reasoned, because pleadings are often amended for reasons unrelated to the accuracy or completeness of the prior allegations, the fact of amendment is usually not probative of the pleader's credibility, but the introduction of that fact "carries significant risk of undue delay and waste of time as the jury hears rebuttal evidence" explaining the reason for the amendment. Id. So evidence that a pleading was amended should generally be excluded under Rule 403, at least if offered to impeach the pleader's credibility. See id.; see also Mason v. Texaco, Inc., 741 F.Supp. 1472, 1498 (D.Kan.1990) (disallowing the use of prior pleadings to cross-examine plaintiff because "clients will rarely, if ever, be in a position to explain the legal theories and strategies chosen by their lawyers"), aff'd, 948 F.2d 1546 (10th Cir.1991).

Dartmouth Hitchcock, however, has disclaimed any intent to use the fact of amendment for that purpose. Instead, Dartmouth Hitchcock suggested that it may use prior versions of the complaint in cross-examining witnesses who relied on prior versions of the complaint in giving prior testimony in this matter, including by referring to the complaint in an interrogatory answer. Those strike the court as uses of the prior pleading, rather than the fact of amendment, which in any event do not appear to implicate the witness's credibility. At this point, then, the court cannot prohibit the use of prior versions of the complaint for all purposes. Accordingly, this motion is granted insofar as Dartmouth Hitchcock must approach the bench with an appropriate proffer before referring to earlier versions of the complaint or the fact they were amended.

C. Plaintiffs' motion to exclude the conclusion of one of Coffey's treating physicians

The plaintiffs seek to exclude any reference to the conclusion, set forth in a note authored by Dr. Susan Lemei, a physician who saw Coffey at Springfield Hospital the day before she died, that "[h]er wounds do not appear to be the origin of her infection." The plaintiffs say that, because Lemei "was wrong in assuming that Mrs. Coffey's hand was not infected"—at least according to their view of the case—the conclusion should be excluded under Federal Rules of Evidence 401, 403, and 702. But the plaintiffs have already agreed to the admissibility of...

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