Court Prevents Testimony of “Surprise” Witness in Medical Malpractice Case

Anyone who has spent a few hours watching old courtroom T.V. dramas likely remembers the climactic moments when – after a long, drawn-out trial – one of the parties presents a surprise witness that completely makes their case. Well, in reality, surprise witnesses are for the most part a thing of the past, due to the current discovery rules.

During the pre-trial discovery phase of a trial, both parties are required to present the other party with a list of witnesses they intend to call. While adjustments can be made along the way, courts generally frown upon presenting a “surprise” witness unless certain circumstances are present. A recent case illustrates how a medical malpractice plaintiff was prevented from having one of his witnesses testify because he failed to disclose her identity during discovery.

The Facts of the Case

The plaintiff was paralyzed after he underwent a surgery that was performed by the defendant doctor. The plaintiff filed this medical malpractice lawsuit against the doctor, claiming that the doctor’s negligence resulted in his paralysis.

During the discovery phase, the doctor requested that the plaintiff explain the basis of his case and present him with any witnesses the plaintiff intended to call. The plaintiff referred to the affidavits that were attached to the complaint as well as to his voluminous medical records. The case proceeded to trial.

At trial, the plaintiff attempted to call a nurse who had treated him around the time of the surgery. However, the nurse’s name was not in the attached affidavits and appeared only twice in the hundreds of pages of medical records. According to the doctor, there was no indication that the plaintiff intended to call the nurse as a witness. The court determined that the plaintiff had tried to conceal the witness’ identity and barred her testimony. The jury returned a verdict in favor of the defendant, and the plaintiff appealed.

On appeal to the intermediate appellate court, the case was reversed in the plaintiff’s favor. That court held that the lower court should have provided the doctor with additional time to prepare, rather than prevent the witness’ testimony altogether. The defendant then appealed.

On appeal to the state supreme court, the case was reversed yet again. That court held that since the trial judge determined that the plaintiff had intentionally withheld the name of the witness, the judge was then within his discretion to prevent the witness’ testimony. As a result, the jury’s verdict in favor of the defendant doctor was reinstated.

Have You Been a Victim of Medical Malpractice?

If you or a loved one has recently been injured due to the negligence of a health care provider, you may be entitled to monetary compensation through a Maryland medical malpractice lawsuit. The skilled attorneys at the personal injury law firm of Lebowitz & Mzhen Personal Injury Lawyers have extensive experience assisting their injured clients in seeking the compensation they need and deserve. Call 410-654-3600 to schedule a free consultation with an experienced personal injury and medical malpractice attorney today.

More Blog Posts:

Court Allows Defendant’s Prior DUI Convictions into Evidence in Recent Car Accident Case, Maryland Accident Law Blog, May 22, 2017.

Maryland Appellate Court Holds That a Statute of Limitations May Be Tolled When a Defendant Fraudulently Conceals Important Evidence, Maryland Accident Law Blog, June 1, 2017.

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