Utilizing Computer-Generated Evidence in Medical Malpractice Cases

, New York Law Journal

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While preparing for trial, litigators in medical malpractice lawsuits are inevitably confronted with the conundrum of how they will communicate to jurors the complex medical concepts involved in the case. Most jurors have only a cursory understanding of biology, and a rudimentary knowledge of medical procedures and jargon. But a majority of jurors rely on digital technology. As a result, many jurors expect that information will be conveyed to them in a technologically sophisticated manner. With this in mind, an advocate who can use advanced technology to convey complicated medical information to lay people should have an advantage at trial.

Testimonial evidence, the traditional mechanism for eliciting proof at trial, can be an inefficient method for educating jurors. Demonstrative evidence, on the other hand, allows jurors to perceive evidence through the direct use of their senses.1 Demonstrative evidence, which is a physical representation of a fact presented at trial, includes diagrams, photographs, and films. It is well known that people typically retain more information when it is presented both visually and orally, rather than just orally.2 So, in conjunction with expert testimony, trial lawyers are increasingly relying on demonstrative evidence to illustrate issues in science and medicine. Trial judges generally instruct jurors that demonstrative evidence is not "evidence of the actual event or how it happened, but rather for the limited purpose of illustrating and understanding the opinion [of the expert]."3

Medical procedures, which are the crux of many medical malpractice trials, can be illustrated to juries through compelling video demonstrations. Videos of medical procedures are ubiquitous on YouTube: Clips ranging from circumcisions to childbirths are easily accessible. These videos depict the surgical tools used during the procedures, the precise movements of the surgeons, and the speed with which operations are performed. They are an efficient way to educate juries about the intricacies of the medical treatment at issue. Naturally, one would expect that a video of a surgical procedure that is the focus of a trial would be shown to the jury as a matter of course. But this is not so in New York.

The Appellate Division, First Department's decision in Glusaskas v. Hutchinson, 148 A.D.2d 203 (1st Dept. 1989) limits trial lawyers' ability to present demonstrative evidence to a jury in medical malpractice cases. In Glusaskas, the First Department precluded a physician-defendant from introducing a video depicting the defendant performing a similar operation on a different patient. The court suggested that for the video to be admissible the patient depicted in the video should be physically similar to the plaintiff, the two surgeries should be identical, and the video demonstration should not include the defendant-physician. Since that decision, which was issued over 20 years ago, the First Department has continued to uphold Glusaskas.4 Just last year, in Rojas v. Palese, 94 A.D.3d 557 (1st Dept. 2012), the First Department, relying on Glusaskas, precluded the defendant from presenting a surgical video.

The First Department's preclusive ruling in Glusaskas is rather broad, but computer-generated demonstrative evidence may satisfy the objections raised in Glusaskas. Digital evidence allows trial attorneys to control the pertinent variables of the demonstration—speed, patient size, and type of procedure—without sacrificing accuracy or reliability.5

U.S. District Judge Jack B. Weinstein presaged the use of computer enhanced demonstrations nearly a decade ago:

The revolution in communicating that has occurred and is still occurring may sometimes be distracting, but it can strengthen the ability of courts to seek truth. Technology in litigation has changed enormously since the adoption of the Federal Rules of Evidence in 1975. In any complex case, computer-generated presentations are the norm rather than the exception.6

Evidentiary Standards for Demonstrative Evidence in New York. To reap the benefits of computer-generated exhibits, litigators should be conversant with the case law on demonstrative evidence in New York. Like any other form of evidence, demonstrative evidence must be relevant. But the linchpin for admissibility in New York is whether the conditions of the demonstration are sufficiently similar to those existing at the time in question.7 Clearly, if the demonstration is inaccurate or misleading, the exhibit will be precluded.

In Glusaskas, the defendant, a cardiac surgeon, performed an aortic and mitral valve replacement on the patient. During the surgery, the defendant lacerated the patient's aorta and the patient died. At trial, the defendant's lawyer showed a video of the same defendant performing another heart valve replacement on a different patient that was performed shortly before trial. Defense counsel argued that the video would educate jurors about anatomical features and surgical methods, and it was admitted into evidence. The jurors awarded a defense verdict, and the plaintiff appealed the judgment dismissing the complaint.

On appeal, the First Department concluded that the video was "highly improper, inflammatory, and prejudicial."8 The First Department made the following findings: (1) the videotape was prepared exclusively for trial, which enabled the defendant to employ a heightened level of care for the camera; (2) there were significant anatomical differences between the patient in the video and the plaintiff; and (3) the surgical procedures were not identical. The Appellate Division concluded that the video had not been prepared for educational purposes; rather it had been a staged event to show that the defendant-physician was a careful doctor.

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