by: David J. Cutshaw , Attorney
The Indiana Court of Appeals recently issued a decision that confirms two things about medical malpractice cases that we often don’t think much about. In Morse v. Davis, 965 N.E. 2d 148 (Ind. Ct. App. 2012), the trial court did not allow the medical review panel members to testify that because a doctor did not write down in his notes that a patient was not complaining of certain symptoms, the panelists did not believe the plaintiff’s testimony that he did make those complaints when coming to their opinions. The Court of Appeals affirmed the trial court’s ruling, holding that it i s improper for an expert to testify as to the honesty or credibility of another witness. This rule is found in IRE 704(b).
This recent decision illustrates two things about the medical malpractice process:

Files.jpg1) doctors don’t write everything down when they see a patient–they can’t–they don’t have time; and 2) medical review panel members are not supposed to determine who is telling the truth when they issue their opinions–that is the jury’s job.
When doctors don’t write everything down, it creates issues for both the patient and the doctor in medical malpractice cases. If the failure to document a particular symptom or complaint is helpful to the doctor’s defense, doctors will often say that if it isn’t written down, it didn’t happen and will be able to argue that the patient did not have a crucial symptom that insulates him or her from making a proper diagnosis. If something is not written down that should have been documented, then doctors will often say that they recall telling the patient that even though it is not documented. The one problem with that statement is that doctors see 30 patients a day–the patient only had one visit with the doctor; so whose memory is better? This is why it is important for patients to try to document what occurred during a crucial office visit with a doctor as soon after the visit as possible so that their memory can be refreshed during lengthy litigation.
When medical review panel members violate the provisions of the malpractice statute that prevents them from resolving issues of fact and issue their opinions assuming the doctor is correct and the patient is wrong, this will generate a panel opinion against a patient which is harder to fight. They are also improperly issuing opinions that one party to the case is not telling the truth which is improper under the law as was confirmed by the Morse v. Davis decision. Such conduct contaminates the entire process and often gives the defendant physician an unfair advantage. It is important to try to head off such conduct through the panel chairman before the panel issues its opinion.