Court Bars Nurse from Testifying Because Patient Failed to List Her as Witness Before Trial

Although a surprise witness is a common theme on TV and in movies, a surprise witness at a trial is rare. Generally, parties are required to disclose their witnesses before trial, and often courts do not allow surprise witnesses to testify. The idea is that prior to trial, all of the parties know generally what to expect so that they will not be prejudiced by a surprise.

Doctor's White CoatThe Identification of Witnesses Through Pre-Trial Discovery

The process of discovery is a pre-trial procedure in which the parties can obtain information from each other through different discovery tools. The goal of discovery is to uncover the evidence that will or could be used at trial. For that reason, during discovery, one party can require another party to identify the witnesses who have knowledge about the incident at issue, as well as the witnesses they plan to call at trial.

In New Mexico, a trial court has broad discretion to allow or bar witnesses whose identities were not revealed in pre-trial discovery. That is, if a party discloses the identity of a witness late, the trial court can decide whether to allow the late-disclosed witness to testify. This decision generally depends on the circumstances, and the court may choose to impose a less harsh sanction in some cases.

The Facts of the Case

In a recent case, one court barred a witness from testifying after the party failed to identify her specifically in discovery. A patient had been seeing a doctor for neck and back pain beginning in 2004, and he was eventually diagnosed with a degenerative disc disease in 2009. He underwent spine surgery, and after experiencing complications, he had to undergo back surgery and subsequently became paralyzed from the waist down. The patient filed a medical malpractice claim against his doctor, alleging that the doctor’s failure to diagnose and treat an abscess in his thoracic spinal cord caused him to be paralyzed.

At trial, the patient wanted to call a nurse to testify who was present before his back surgery. However, the nurse was not identified in the patient’s written discovery responses or in the parties’ pre-trial order. In response to interrogatories asking the patient to identify witnesses, he directed the doctor to his complaint and attached affidavits, along with the patient’s medical records, but he never specifically identified the nurse as a potential witness. In the pre-trial order, the patient stated that he might call as witnesses his treating medical providers, any person named in the medical records, and any health care professional identified in the patient’s records. Yet, although the nurse was listed twice in the medical records, she was not listed specifically in the pre-trial order. As a result, the trial court barred the nurse from testifying. The case continued, and the jury found the doctor was not liable for the patient’s injuries. The patient appealed, and the appeals court agreed, finding the court should not have excluded the nurse. But the doctor appealed that decision, and the state’s supreme court disagreed, finding she was properly barred.

The court explained that two references in all of the patient’s medical records were insufficient to put the defendant on notice that the nurse was a person with knowledge of the negligence. In addition, the patient’s lawyer admitted that he was aware at least three months before trial that the nurse was a potential key witness—but the patient failed to specifically identify her. As a result, the court’s decision to bar the witness was affirmed, and the verdict was upheld.

Have You Been Injured?

Understanding and following the procedural requirements in each case can be daunting, but it is extremely important in medical malpractice cases. At the Fine Law Firm, we believe that an attorney’s role is to provide services that will maximize a client’s recovery and help direct the client through the legal system. Our firm does not charge for an initial consultation to discuss the circumstances of your case and whether you need an attorney. For a free consultation, fill out our online form or call at 800-640-6590.

More Blog Posts:

Appellate Court Finds Lower Court Erred in Granting Summary Judgment to Fast Food Restaurant in Slip-and-Fall Case, New Mexico Personal Injury Lawyer Blog, May 11, 2017.

Court Finds that Comparative Negligence Does Not Apply in Crashworthiness Cases, New Mexico Personal Injury Lawyer Blog, June 13, 2017.