Tuer was in the hospital for a bypass. He had been taking
a drug called Heperin, but according to hospital protocol, he was taken
off the drug the day before the surgery. The surgery was delayed, and
Tuer had a heart attack and died.
If Tuer had been put back on the drug he might not have
died, although Tuer's doctor (McDonald) testified that maybe it would
have been more risky.
After Tuer's death, the hospital changed their protocols
about when a patient is taken off Heperin.
Tuer's wife sued the hospital, and McDonald for medical
malpractice.
At trial, Tuer's wife attempted to introduce evidence that
the hospital changed their protocol after Tuer's death.
Tuer's wife argued that evidence of subsequent
remedial measures was relevant to showing that the hospital knew that
the previous procedures were inadequate.
That could be considered relevant since the
hospital was arguing that their procedures with Tuer had been adequate.
Tuer's wife also argued that even if the evidence was not
admissible as a defacto admission by the hospital that the
procedures were inadequate, it should be admissible to impeach the
testimony of McDonald.
If McDonald had actually thought that putting Tuer back
on the drug was too risky, why did he later change hospital procedures
to out patients like Tuer back on the drug?
The Trial Judge excluded the evidence.
The Trial Judge found that under Maryland Rule
5-407 (identical to FRE 407) excluded introduction of subsequent
remedial measures to prove culpability.
Although there are a few exceptions.
The Trial Court found for McDonald. Tuer's wife appealed.
Tuer's wife argued that the evidence should be admitted
to show both feasibility and to impeach McDonald's
testimony.
The Appellate Court affirmed.
FRE 407 says that evidence of subsequent
remedial measures is admissible to show feasibility. However,
the Appellate Court found that McDonald never testified that restarting
the drug was not feasible, only that it was more risky than other
options. Therefore, the evidence was not admissible in order to show feasibility.
Feasibility is only relevant if someone had
testified that taking a certain action was basically impossible, and
then later took that action.
FRE 407 says that evidence of subsequent
remedial measures is admissible for impeachment purposes. However
the Appellate Court found that McDonald testimony was not inconsistent
with his actions. The fact that McDonald may now perceive the risks
differently, perhaps even because of Tuer's death, does not contradict
that he thought restarting the drug would have been too risky at the time
he was treating Tuer.
"Subsequent remedial measure evidence has
been held inadmissible to impeach testimony that, at the time of the
event, the measure was not believed to be as practical as the one
employed."
