Post-event literature at trial - October 12, 2005

Nelson v. Upadhyaya, et. al.

Facts (in relevant part):

The plaintiff suffered brain damage due to meningitis shortly after his birth in 1990. The plaintiff sued the obstetrician alleging she should have treated the babywith antibiotics prophylactically. The defendants argued they complied with the 1990 standard of care and used post-occurrence literature to support their theory that the standard of care evolved to require prophylactic antibiotics for a case like plaintiffs. Importantly, they did not use the literature to establish the standard of care, but only used it to show how the standard of care had evolved. The jury returned a verdict for the defendants. The first district reversed Judge Thomas Hogan.

Holding:

The trial court erred by allowing the defense to use post-occurrence literature as an aid to interpreting the applicable standard of care. The case was sent back to the lower court for a new trial.

Bottom Line:

It is reversible error to use post-occurrence literature (i.e., from 1992) to establish or support the standard of care (i.e., in 1990), even if you are using the literature to show how the standard of care has evolved over the years (i.e., from 1990 to 1992).