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Medical malpractice case will involve hearsay on the record

Recently, news out of New Jersey discussed a medical malpractice case that left a woman dead following a laparoscopic gastric banding surgery. This surgery is used to help promote weight loss by adding a small band around the upper part of the stomach. After that happens, the stomach is physically unable to take in as much food as before, making it possible for the individual to eat less and to lose weight. Interestingly, the case has been trying to move forward, but there was a slight halt as the court had to decide if hearsay would be allowed to be used to support the plaintiff's case.

In this woman's case, the problem came not during surgery, but a few days later. The woman called and visited her surgeon's office complaining that she'd been having chest pain. The surgeon reportedly told her that chest pains were normal after surgery, because gas could be caused as a complication. Unfortunately, the woman later died of a pulmonary embolism, better known as a blood clot.

The statements that the family reported hearing the doctor and his team say were recorded as hearsay, according to this article. Normally, if a patient is alive, hearsay is not admissible in court, because it is hard to determine the truthfulness of those statements.

However, in this case, the court had a discussion and hearing over the admission of these remarks. It was later found that they would be allowed to be used in court, because the plaintiff had passed away. Also, the panel deciding on if the information would be allowed in court ruled in favor of admitting the hearsay as evidence, because the statements couldn't be excluded unless there was some reason to think that the plaintiff's family was untrustworthy.

Source: New Jersey Law Journal, "Estate of Grieco v. Schmidt," May. 28, 2015

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