Del. Court Tosses Errata in Medical Malpractice Testimony

On November 10, in a state court in Delaware, the New Castle County judge ruled that legal counsel could not simply edit away admissions of liability by using an “Errata” sheet correction to depositions. The underlying case involved a medical negligence claim brought by a patient, who alleged receipt of faulty post-standard care for a myomectomy against All About Women, PA, the defendant-facility where the myomectomy was performed.

The plaintiff alleged that the standard of care required the defendant to be aware of her “full clinical picture” and thus recognize the warning signs for internal bleeding that occurred two days following the myomectomy. As a result of the purported breach of the standard of care, Alberts proffered that she lost 2/3rds of her body’s blood volume, resulting in emergency corrective surgery.

Then, the opinion laid out, the facts of legal contention arose: Following the emergency corrective surgery, and the commencement of this lawsuit, the plaintiff took the deposition of the defendant’s physician who performed the myomectomy. The deposition was filed and then sent over to the plaintiff’s expert medical witness who opined that “Dr. McCracken breached the standard of care owed to Plaintiff when she failed to recognize the ‘obvious signs, symptoms and labs consistent with internal bleeding’…; Dr. McCracken’s testimony that ‘potentially any of us or potentially none of us’ responsible for Plaintiff’s care would know the elements of the clinical information necessary to diagnose Plaintiff’s condition, falls below the standard of care, and…; (and) Dr. McCracken’s testimony regarding what a ‘clinical picture’ means is a ‘grossly inaccurate representation of the meaning of clinical picture, and falls far below the knowledge and skill ordinarily employed by an attending OB/GYN and the use of reasonable care and diligence in the postoperative care of a myomectomy patient[.]’” In retort of the aforementioned medical assertions of the plaintiff’s expert witness, Dr. McCracken attempted to make errata (the process of adding an addendum to a deposition that attempts to correct allegedly incorrectly recorded testimony) adjustments to the prior deposition. The plaintiff moved to prevent the court from recognizing these modifications, arguing that errata sheets are for correcting typographical errors, not changing testimonial evidence that harmed the case.

For example, the plaintiff pointed out, when Dr. McCracken was asked “[W]ho knows the pieces of clinical information necessary to diagnose what is currently occurring with the patient,” the doctor answered, “Potentially any of us or potentially none of us.” In contrast, the plaintiff noted to the court, the modified answer was “(p)otentially any of us or potentially none of us…(k)now everything. However, we would all assess the clinical picture when we evaluate the patient and if there is anything that occurs during that evaluation which raises a question, we could then go into the patient’s chart to further investigate that but each scenario is different.”

The court agreed with the plaintiff and granted the motion to strike any of Dr. McCracken’s deposition changes from the record. The judge ruled that “(w)hile Super. Ct. Civ. R. 30(e) (the court rule governing Errata modifications) allows a deponent to make changes to their deposition testimony in form…, it does not allow them to improperly alter what they testified to under oath. A deposition is not a practice quiz. Nor is it a take home exam. An errata sheet exceeds the scope of the type of revisions contemplated by Rule 30(e) when the corrections ‘are akin to a student who takes her in-class examination home, but submits new answers only after realizing a month later the import of her original answers could possibly result in a failing grade.’”