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Leesburg FL medical malpractice lawyer discusses judge’s disqualification

Posted by Guy DiMartino | Oct 23, 2013 | 0 Comments

Stuart – Port St. Lucie Florida medical malpractice lawyer discusses judge's disqualification for writing derogatory comments about a plaintiff while she was on the witness stand.

Equal Justice Under the Law

You will note in the photo that the insignia above the courthouse says “equal justice under the law.” The very foundation of the justice system (the courts) is that judges are to be fair and impartial. In a recently reported medical malpractice case, the judge wrote derogatory comments about the plaintiff (injured patient), which the plaintiff's attorney saw while at the judge's bench.

Here is the story in this case.  A woman goes in for a laparoscopic assisted vaginal hysterectomy.  One of the known risks and complications of the procedure is damage to the ureter, which is a tube that carries urine from the kidney to the bladder.  The patient's ureter was injured and it was not diagnosed at the time of the hysterectomy.  The patient had to go in and get a nephrostomy tube and urine bag placed, which diverts urine from the kidney to the bag outside of the body.  The procedure was reversed after three months and the patient's ureter was repaired.

At trial, the patient testified in detail about what it was like living with the nephrostomy tube. Eventually, the doctor's attorney objected and the attorneys had a conference at the judge's bench.  During this conference, the patient's attorney saw that the judge wrote on a post-it “bag lady with (s—ts). Barfer too”.  The patient's attorney asked the judge to declare a mistrial and he refused the request. The patient lost the case and appealed the matter to the Second District Court of Appeal.

What did the appellate court say?

The appellate court said that the patient was entitled to a new trial because of the judge's conduct.

The very foundation of our system of justice mandates that judges be completely neutral and impartial. Litigants have the right to have their cases heard in a “[calm] and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner.” It can hardly be said that the trial judge's comments and note in this case reflected a “calm and dispassionate environment.” Quite the contrary, the comments reflected a bias or prejudice against M.B. thereby rendering the entirety of the proceedings fundamentally unfair.

Analysis

In this case, it doesn't appear that the judge's comments were seen by the jury; however, a party to a lawsuit has an absolute right to a fair and impartial judge.  If the judge had a bad attitude about the patient, it certainly could have negatively impacted any evidentiary rulings. We are all people and sometimes other people rub us the wrong way; this is what probably happened in this case.  All in all, because of the judge's written notes, the outward appearance is that the patient did not get a fair shake in trial. This case clearly shows all the dynamics that go on in trial. What are your thoughts?

About the Author

Guy DiMartino

I have loved helping people in need for almost three decades.  It has been my privilege to serve people as their pastor, chiropractor, and lawyer.  The current focus of my legal practice and life’s passion is helping the seriously injured receive complete compensation for their injuries. I am a Florida Board Certified Civil Trial Attorney. What that really means is that I am no stranger to the courtroom.  I have successfully tried and handled serious cases in state and federal courts.  My backgrounds in both law and chiropractic medicine have given me a unique perspective, extensive knowledge, and wide experience to serve those I represent. For years as a chiropractic physician, I treated my patients to alleviate their pain and suffering. Now as their lawyer, I fight to bring them financial compensation for their pain and suffering. During my years of service, I have handled many traumatic injury cases ranging from the traumatic amputation of a limb to brain and spinal cord injury.  I consider it an honor to serve you and your family. When a person entrusts me and I accept to represent them, I don’t take that relationship and responsibility lightly. My approach is that we work as a team. We are partners and our goal is the best outcome for you and your family with the highest level of communication throughout. I am always available by phone or email to discuss my potential representation of your injury case. I handle cases throughout Florida. Education: National University of Health Sciences – BS (1984), DC (1986) Valparaiso University School of Law – JD, summa cum laude (1999) Bar Admissions: Florida (2000), Indiana (1999), Illinois (2000, expired); US District Courts of Appeals (11th Circuit, 7th Circuit); United States District Courts: Southern and Middle Districts of Florida; Northern and Southern Districts of Indiana; Northern and Central Districts of Illinois; and District of Colorado. Certification:  Civil Trial, Florida Bar Guy DiMartino on Google+ – Circle Guy on Google+ Guy DiMartino on Google+

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