Saying 'I'm Sorry' Isn't Enough; Will Hearsay Protect You?; More

Wayne J. Guglielmo, MA


January 10, 2013

In This Article

Can the Ex-Girlfriend's Comment Be Used as Evidence?

The patient's family sued both doctors for negligence, arguing that "had the cause of the cyst been determined before the biopsy, doctors would have recognized that spillage of its contents would have led to anaphylactic shock." Not so, said defendants Waintrub and Kelly, who stated that they had met the standard of care and that the patient's "cocaine use -- as described by his former girlfriend -- explained his sudden cardiac arrest and his delayed response to resuscitation efforts."

After the trial jury found in favor of the doctors, the plaintiffs appealed. They contended that the former girlfriend's statements about the patient's past drug use amounted to hearsay and therefore should not be admitted into evidence. The defendants countered, arguing that the comments were admissible because they "fell under the exception to the Colorado hearsay rules that allow statements made for the purpose of diagnosis and treatment."

The appeals panel, however, found this line of reasoning unpersuasive. It said that, given the patient's permanent brain injury, "it was not reasonable to conclude that the information was necessary to diagnose or treat him." It further noted that, after speaking to the patient's former girlfriend and learning of his past drug use, Dr. Kelly neither charted her comments nor ordered follow-up cocaine tests, indicating that he deemed her information of insufficient clinical relevance to the plaintiff's continued treatment.

On the question of the drug test, Dr. Waintrub's attorney told that testing "would not have been effective, because too much time had lapsed at that point between Haralampopoulos' injury and the alleged drug abuse."

Medical groups and risk consultants are eagerly anticipating the Colorado high court ruling. "Medical care would be less effective and could be misguided without [third-party] information," several state medical societies and the Litigation Center of the American Medical Association argued in a friend-of-the-court brief in support of the doctors' case. "An after-the-fact-evaluation of that same care would be just as misguided were such information not included in the critique."

Time Limit on Being Sued for Malpractice

In December, the Ohio Supreme Court ruled that a state term-limit law -- which prevents medical liability claims from being filed more than 4 years after an alleged incident -- was constitutional, according to a posting on, the Website of the American Hospital Association.[3]

In its ruling, the state's high court said that the Ohio General Assembly "has the right to determine what causes of action the law will recognize and to alter the common law by abolishing the action, by defining the action, or by placing a time limit after which an injury is no longer a legal injury."

Most state legislatures have the authority to alter the common law by statute or other means. In the Ohio case, the high court was reminding those who said it was unconstitutional to impose a time limit on when a medical liability claim could be filed that it was entirely within the legislature's purview and authority to do this.