Trials are supposed to be free from surprises that put one party unexpectedly at an advantage over another party. A period of "discovery" prior to trial allows for each party to learn of all facts in the case, and there is a continuing duty to update discovery as new facts become apparent. In a recent pharmacy malpractice case, the Supreme Court of Iowa held that that the trial judge had appropriately handled a newly discovered fact, and the jury's verdict in favor of the pharmacy was upheld. A patient underwent LASIK surgery to correct her vision. After the surgery, she was diagnosed with postoperative corneal scarring, for which her ophthalmologist recommended corneal scraping followed by the application of mitomycin-C (MMC). The patient's surgery was scheduled for March 9, 2006. The ophthalmologist ordered MMC in a 0.02% concentration from the defendant, the pharmacy. The order was received on March 7. A pharmacist compounded the medication on the morning of March 9, and the medication was placed in a bottle. Records from the surgery indicate that it began at about noon on that day and was completed within an hour. The ophthalmologist applied a substance from a bottle believed to have contained the MMC ordered from the pharmacy. He did not apply the entire contents of the bottle and he placed the remaining contents in a refrigerator in his office. On March 13, the patient returned complaining that her vision had worsened and she had severe headaches. The ophthalmologist determined that the cornea was not healing, and the patient was referred to a teaching hospital where an examining physician concluded that her condition was likely caused by the application of MMC in excess of the 0.02% concentration. Testing the remaining contents in the bottle revealed no trace of MMC. The patient sued the ophthalmologist and the pharmacy. The patient eventually dismissed the ophthalmologist from the lawsuit and proceeded with litigation against the pharmacy only. A period of discovery ensued, ending with a pretrial conference on February 12, 2010. A few days following the pretrial conference, the pharmacy manager discovered new documents indicating that the medication in dispute was never delivered to the ophthalmologist's office, but instead was picked up by the office manager on the afternoon of March 9, 2006, after the time the surgical records indicated the procedure had been completed. Although a delivery log showed a delivery to the clinic that morning, the signature of the person signing for delivery was crossed out, meaning that the delivery had not taken place. A dispensing log from the pharmacy indicated that the MMC medication had been picked up at 1:39 pm on March 9, 2009, and a cash register receipt verified this information. The pharmacy manager provided these new documents to the pharmacy's attorney. At trial, the pharmacy's attorney offered these new documents as evidence. The patient's attorney objected, and the judge ordered a continuance during which the patient's attorney deposed the pharmacy personnel who had knowledge of the documents. The documents were then entered into evidence. The case went to the jury, which returned a verdict for the pharmacy. The patient's attorney contended, on appeal, that the new documents should have been excluded from the evidence presented to the jury. The Supreme Court of Iowa disagreed, noting that the continuance offered by the trial judge gave the attorney "the opportunity to overcome the surprise she confronted at trial." This was considered by the Supreme Court to be a "reasonable course of action." The court noted further that the patient's attorney "did not subsequently request any further relief from the trial court based on a claim that the continuance was inadequate." The court ruled that "a litigant cannot sit on a claim of error until the trial is over and make the claim once the result of the trial is unsatisfactory." The judgment of the trial court, dismissing the case against the pharmacy, was affirmed. Attorneys are responsible for making effective legal arguments based on the facts of a case, and parties to litigation are responsible for providing complete and accurate facts to their attorneys. When a pharmacy discovers new documents or other facts during preparation for trial, the pharmacy's attorneys should immediately be informed, as was done in this case. It is the responsibility of the judge to ensure that appropriate steps are taken to avoid any surprise these documents or other facts may create for opposing counsel. Based on: Whitley v C. R. Pharmacy Service, Inc., 2012 Iowa Sup. LEXIS 71 (June 29, 2012).
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