Thomas v. Summit Health Care

After the meeting this morning, I viewed the video tape Ms. Sher left with me, which is the subject of the issue between the parties as to whether it can be shown to the jury in this medical malpractice case. The tape, “Shoulder Dystocia Drill,” discusses the problem of shoulder dystocia and the techniques available to avoid it when the problem presents itself during the birth process. While, as I thought, the tape is at least informative, I must find, as plaintiff argues, that inter alia, it is replete with opinion testimony on how to best deal with the circumstances that could lead to the condition. Showing the tape would deprive the plaintiff of the right to cross-examine the commentator, a Dr. William Young, on issues such as, evaluating medical necessity and the employment of the various techniques described, timing etc. I think too that plaintiffs objection to its use as a medical treatise is well founded under Va. Code § 8.01-401.1, the case of Constanino, etc. v. Herzog, 203 F.3d 164 (2000), notwithstanding. So, defendant’s request to show the tape is denied.