Harmless error and expert cross-examination in medical malpractice trials


Wilson v Munson Medical Center presents a number of lessons about the kinds of evidence that can be admitted in a medical malpractice trial. At the same time, Wilson shows that errors in the admission of evidence, however glaring, may not warrant reversal on appeal.

Cindy Wilson, the plaintiff’s wife, was admitted to Munson Medical Center’s emergency room with extreme pain in her chest. Initial tests were inconclusive and she was admitted for further examination. Her pain came and went, and often manifested in new areas of her body. Tragically, Ms. Wilson soon died of an aortic dissection, a tear in the lining of the aorta. Her husband sued for malpractice, focusing on medical personnel’s failure to diagnose her illness. A jury returned a verdict in the defendants’ favor. Although the Court of Appeals found a number of errors in the admission of evidence during trial, none of them went to the core issue of malpractice and, thus, each error was harmless. The Court of Appeals’ analysis of impeachment of expert witnesses, however, warrants attention, and is discussed after the break.

The plaintiff intended to ask a defense expert about other instances in which he had testified for Munson about aortic dissections, a question that, as the Court of Appeals noted, would suggest that the defendants had a history of misdiagnosing aortic dissections. Experts are, of course, subject to cross-examination about whether they have “testified at the request of counsel in other cases…” But this testimony, as the Michigan Supreme Court held in Wilson v Stilwill, is of only minor relevance and “should be carefully scrutinized by the trial court.” Allowing cross-examination about an expert’s prior testimony for this defendant for the same medical issue, the Court of Appeals concluded, would be more prejudicial than probative.

The plaintiff asserted a number of other errors, two of which concerned character evidence. One of the defense’s witnesses referenced the plaintiff’s juvenile conviction for sexual molestation. This fact was raised, in theory, to explain the relationship between the plaintiff and his deceased wife’s daughter — a relationship that became strained after his wife’s death. The Court of Appeals found this testimony patently irrelevant. But it also concluded that the testimony went only to the question of damages, an issue the jury never reached because it found no evidence of malpractice.

The plaintiff also objected to references to one of the defendant doctor’s membership in a religious order. The doctor was a nun, although more oblique terms were used during trial to reference her religious vocation. The Court of Appeals was not persuaded that this evidence warranted reversal because there was no indication that the jury was overly influenced by this fact.

Wilson affirms the principle of harmless error. Even an egregious error like references to a plaintiff’s juvenile criminal history in a medical malpractice trial do not require reversal if they played no conceivable role in the outcome. Wilson‘s real import, however, lies in its discussion of expert cross-examination. Counsel cannot suggest through cross-examination of expert witnesses that the medical malpractice at issue in one trial is a recurring problem, and one that the expert is often called upon to defend.

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