Virginia: Medical Malpractice – a Lawyer’s Proffer
Galumbeck v. Lopez, No. 102416 (Va. Mar. 2, 2012) is a medical malpractice appeal. It rejected all 4 of the defendant doctor’s assignments of error.
First, Galumbeck found no juror misconduct despite a juror nodding to plaintiff, shaking the hand of his expert, and telling the expert “good job” re his testimony. Id. at 4. The Virginia Supreme Court observed that at the medical malpractice trial the juror “explained his actions and those explanations were found to be credible by the trial court”. Id. at 7.
Second, the medical malpractice defendant was deemed to have waived his objections about a surgical log not being admitted. Id. at 7-10. Galumbeck found an insufficient appellate record was made because: (1) “all of the relevant discussions related to this issue were held off the record in a sidebar conference”; and (2) “Dr. Galumbeck’s ‘proffer’ was recorded after the court had adjourned for the day and outside of the presence of opposing counsel”. Id. at 9.
Third, Galumbeck held the admissibility of board certification evidence also was waived on medical malpractice appeal. The grounds were (1) defendant not requesting a ruling on his pre-trial motion in limine; (2) his trial objection being made off-record in another sidebar conference; and (3) he himself introduced the same evidence as part of his own exhibit. Id. at 9-12.
Fourth, Galumbeck upheld the admissibility of medical bills despite plaintiff not claiming medical expenses as damages. At medical malpractice trial, the medical bills were “arguably relevant” because they only “were offered to contrast the level of emphasis Dr. Galumbeck placed on the financial aspect of the transaction with the quality of the medical care he delivered.” Id. at 12-13.