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Why wiould the defense attorney in a medical malpractice trial spend any time talking about marijuana use by the patient/victim? Maybe because character assasination of claimants has been known to work. Maybe a Florida appellate court has caught on to the ploy.

The character of the patient should rarely be a defense in a medical malpractice case because even a bad guy is entitled to good medical practices. And, it should never be the focus or a feature of the trial when the character issue is solely based upon the victim’s use of marijuana unless the use of marijuana worsened the injury. A Florida appellate court has reversed a verdict in favor of a doctor whose trial stategy apparently consisted of making irrelevant marijuana use a feature of the trial. The Court cited repeated references to marijuana in opening statement, during doctors’ testimony, and in closing argument. Despite the rationale for the references the true intent of the defense is clear.

The opinion in Shaw v. Jain, 30 Fla. L. Weekly D2453d, describes a defense that would rather talk about the character of the patient than the negligence of the physician. Fortunately, the Florida appeals court recognized the unfairness and prejudicial impact of the effort.

In one paragraph the Court Opinion summararizes how far the defense went to destroy the character of the injured patient by references to marijuana use:

At trial, over repeated objections, Jain was permitted to present to the jury evidence that Shaw had tested positive for marijuana on a drug test performed at the behest of her employer more than two years before the surgery, and that she had again tested positive about a year after the surgery while receiving treatment from a pain management physician. Four physicians were permitted to testify that a patient’s use of marijuana could have an impact on their treatment decisions. However, none testified that Shaw’s use of marijuana would have affected their treatment of her. On the contrary, the physician who had treated Shaw for pain testified that Shaw’s positive drug test did not change her treatment. In short, no evidence was presented that Shaw’s use of marijuana had any impact whatsoever on the magnitude of her injuries, the treatment for those injuries, or her recovery. Notwithstanding the lack of such evidence, Jain’s attorney referred to the marijuana usage in both opening statement and closing argument, implying that it had, in fact, had an adverse effect on Shaw’s recovery.

The legal posture of the malpractice case:

Shaw’s action alleged that Jain had cut her median nerve while performing a carpal tunnel release on her right hand, and then negligently failed to diagnose and treat the cut nerve. According to the complaint, Shaw sustained permanent injuries as a result of Jain’s negligence. As a part of his affirmative defense that Shaw had been comparatively negligent, Jain alleged that Shaw “ha[d] used marijuana to control pain to her hands and has not told this to her treating physicians . . . .” According to Jain, “withholding of this information . . . impacted the pain management aspect of [Shaw’s] treatment, which has contributed to her damages.” Prior to trial, Shaw filed a motion in limine asking that evidence of alleged illegal drug use be precluded because it would be irrelevant, and because “introduction of such evidence is likely to confuse or mislead the jury and is more prejudicial than probative,” citing section 90.403 of the Florida Evidence Code. The trial court denied that motion, as well as a motion for reconsideration filed immediately before the trial commenced.

The diligence of counsel representing the patient is to be commended. Numerous efforts were made to prevent the introduction of the totally irrelevant and prejudicial marijuana use testimony. These efforts were finally rewarded by the reversal of the defense verdict on appeal. Trials should be about the real issues in the particular case, not about irrelevancies that may tend to prejudice a claimant.

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