Court reviews malpractice verdict for patient; dismisses hospital, upholds ruling against doctor

Rudy Lozano sued the DMC and Dr. Alfredo Lazo on behalf of the Estate of Jon Jarzembowski.  Lozano's attorneys argued that Lazo's treatment of Jarzembowski was negligent, and achieved a trial verdict against the doctor and the DMC.  Lazo and the DMC appealed.

The Court first ruled that the Lazo could not be the "apparent agent" of Harper Hospital and the DMC, even though the jury concluded that he was.  The patient had transferred to the DMC because a third-party doctor suggested that the top surgeon in the field practiced at Harper.  After transfer, however, that specialist was not available and Lazo provided the decedent's care.  The family argued that it was looking to Harper to care for the decedent and that since it had no pre-existing relationship with Lazo, he was an "ostensible" or apparent agent of the Harper.

The Court rejected this argument, primarily because when the defendants' attorneys first interrogated the family, they did not claim that they considered Lazo an agent of the hospital.  The Court also refused to consider evidence the trial court deemed significant; in particular, the manner in which the doctors in Lazo's practice introduced themselves to patients and the fact that they wore white lab coats which identified them as "members of the Hospital's Radiology Department. (So, apparently, the doctors and hospital get the benefit of their association, but do not bear the burden.)

The Court pointed out that the victim's attorney was not aware that he had the original and legitimately assumed that the Hospital complied with its legal duty to maintain a copy.  Furthermore, given the evidence, the trial discovery of the existence of the one radiograph did not influence either the parties' proofs or the foundation for the verdict.

The Doctor's next argument related to its claim that the trial judge had erred in its evidentiary ruling relating to how the "standard of care" should be defined.  The doctor argued that the judge erred in holding that the standard of care required all practitioners of a given specialty to act as a reasonably prudent or average specialist would act.  In a confused articulation of the rule, the higher court held that since the jury was properly instructed on the legal standard of care, any error in how the trial judge articulated the standard of care during the trial was not prejudicial. The whole argument turned on whether the Defendant should be held to what "all" interventional radiologists would do, or to what "a[n} interventional radiologist" would do.

The doctor's next specious error argument related to the family's attorney using "reliable" medical textbooks to cross-examine the doctor's expert witnesses. The Court noted that the textbooks were admittedly reliable and the procedure adopted on cross-examination was proper.  It also pointed out that Lazo's attorneys could not reasonably use medical textbooks to cross-examine the family's economist, since the latter witness was not qualified to comment on medical issues.

The Doctor then argued that the lower court erred in sanctioning his attorneys for falsely certifying that he had malpractice insurance coverage with an in-state insurer.  The Court upheld both the $7,000.00 sanction and the $400.00 hourly rate for the experienced plaintiff attorney who represented the family.

Finally, the Court rejected the doctor's request that the verdict be reduced and that the family's award for household services or loss of earning capacity be overturned and denied.