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Univ. of South Carolina School of Law

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Friday, February 4, 2011

In Completion: Court Of Appeals Of Kentucky Finds Rule Of Completeness Applied In Gastric Bypass Case

Like its federal counterpart, Kentucky Rule of Evidence 106 provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

And, as the recent opinion of the Court of Appeals of Kentucky in Perry v. Larson, 2011 WL 181326 (Ky.App. 2011), makes clear, this "rule of completeness" applies even when the other part of the writing is offered for a different purpose as long as it concerns the same subject matter.

In Larson,

Michael [Perry] was morbidly obese and suffered from chronic left knee pain. Because of that pain, Michael took an anti-inflammatory, Voltaren. Motivated in part by his knee pain, Michael sought treatment with [Dr. Gerald] Larson in the spring of 2001. Larson recommended gastric bypass as a method of weight loss, and he performed that procedure on August 31, 2001. Following the surgery, Larson prescribed thromboembolic deterrent stockings (compression stockings) and sequential compression devices (compression devices) to decrease the risk of Michael developing post-operative deep vein thrombosis  (DVT). Larson did not prescribe any medication to address this risk....DVT is not, in and of itself, necessarily life threatening, but can lead to life threatening or fatal consequences such as pulmonary embolism.

The surgery was uneventful and, on September 4, 2001, Michael was released from the hospital. The next morning, Michael died as a result of a pulmonary embolism. Following Michael's death, [Susie] Perry brought suit individually and on behalf of Michael's estate alleging, in pertinent part, that Larson's failure to prescribe the medication heparin after surgery violated the standard of care and was a substantial cause of Michael's death

At trial, Susie's counsel asked Dr. Barba, her expert witness, to read a portion of the Physicians' Desk Reference (PDR) stating that studies had shown heparin to be an effective treatment for prevention of post-operative DVT. Thereafter, defense counsel, over Perry's objection, got Dr. Barba to read that portion of the PDR which states that "patients receiving...platelet active drugs" drugs such as Voltaren "should be excluded from [heparin] treatment."

After the jury found for Dr. Larson, Susie appealed, claiming that "the introduction of that portion of the PDR setting forth contraindications was not admissible under the rule of completeness because it was apparently for a different purpose." The Court of Appeals of Kentucky disagreed, finding that

evidence is admissible under KRE 106 if it concerns the matter introduced by the adverse party. The subject matter introduced by Perry through the PDR involved the efficacy of heparin in reducing the risk of DVT. The additional portion of the PDR introduced by Larson indicated that there are risks associated with the use of heparin in conjunction with other medications. That concerns the subject matter introduced by Perry, the efficacy of heparin, and therefore is admissible under KRE 106.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/02/106-susie-perry-and-susie-perry-administratrix-of-the-estate-of-michael-anthony-perry-v-sw3d-2011-wl-181326ky.html

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