Example Motion to Compel Meaningful Request for Admission Answers in Malpractice Case Part 2

Basis for Motion to Compel:

This request simply asks Dr. Castle to admit that the anticoagulant medication that Mr. Cotton was taking made it more difficult for his own blood to clot. This is exactly what anticoagulant medication does. Dr. Smith claims that because the term “anticoagulant medication” is not defined within Plaintiffs’ request, and that he cannot understand the term “anticoagulant medication.” Similarly, Dr. Castle claims that the phrase “made it more difficult” is subject to so many different interpretations that he is unable to admit or deny Plaintiffs’ request. Dr. Castle’s claim that the common usage of the English language is so ambiguous that he cannot admit or deny Plaintiffs’ request strains credulity.

Once again Dr. Castle clearly understood the term “anticoagulant medication” during his deposition and intelligently answered questions on this topic:

Page 132.

Q Would it be fair to say that if you were
7 aware that Mr. Cotton was bleeding internally at the
8 site of his fracture you would have discontinued the
9 Lovenox and Coumadin?
10 MR. DAVIS: Objection to form and the
11 hypothetical nature.
12 You can answer.
13 THE WITNESS: Well, if I knew that he was
14 bleeding internally I would have stopped it. Yes.
15 BY MR. GASTON:
16 Q Because for a patient who has internal
17 bleeding the administration of a blood thinning and
18 anticoagulant medicine would make it easier for the
19 patient to bleed internally, correct?
20 MR. DAVIS: Objection to form.
21 You can answer.
22 THE WITNESS: Yes.

Page 135

Q And the PTT is the bleeding time, correct?
7 A Partial thromboplastin time. Yes.
8 Q That is the time it takes blood to clot and
9 the application of an anticoagulant is to lengthen the
10 amount of time that it takes for blood to clot or that
11 is the effect of the medication of the anticoagulant,
12 correct?
13 A Right.
14 Q So, if you wanted to increase or speed up
15 the clotting process, you would take away the Coumadin
16 and you would take away the Lovenox, correct?
17 A Yes.

From Dr. Castle’s own sworn testimony it is clear that he understands the term “anticoagulant medication” and understands that when a patient is taking anticoagulant medication that it makes it more difficult for the patient’s blood to clot. His refusal to admit now what he has already admitted during his deposition is inexcusable. The Court should order that this request is deemed admitted.

Request No. 32: Does Dr. Castle admit that he never order any blood products for Mr. Cotton while Mr. Cotton was a patient at Montgomery General Hospital.

Response No. 32: Objection. The request is ambiguous as the term “blood products” is subject to multiple interpretations; therefore this request is ambiguous and cannot be admitted or denied as phrased. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

The request asks Dr. Castle to admit that he never ordered blood products for Lawrence Cotton while he was a patient at Montgomery General Hospital. Dr. Castle once again claims that the term “blood products” is so ambiguous that he (a medical doctor) cannot figure out what is being requested. Dr. Castle reviewed Mr. Cotton’s medical chart before he was deposed. He reviewed his own orders. Either there is an order in the chart for a blood product or there is not. Dr. Castle was asked why he did not give Mr. Cotton blood while he was in the hospital. He answered this question at pages 106 – 107:

Q Was your decision not to give blood, packed
21 cells, based upon your impression that the hematocrit
22 and hemoglobin levels as reflected on the blood tests
Page 107
1 were not accurate?
2 A No.
3 Q What again was that based on?
4 A It was based on that at a hemoglobin of 10
5 he needed fluid replacement.

Apparently Dr. Castle wants this Court to believe that he knows what the word “blood” means and what “packed cells” mean but cannot comprehend the term “blood products.” Dr. Castle knows that he did not give Mr. Cotton any blood products while he was a patient at the hospital. This is why Mr. Cotton died and why we are in court. There is no question that Dr. Castle did not give Mr. Cotton any blood products. Dr. Castle’s refusal to clearly admit or deny this request is once again groundless. Defense counsel, as an officer of the Court, has a duty to inform the court that there is no dispute over this fact and the Court should determine that Dr. Castle has admitted this fact. To do otherwise would be committing a fraud upon the Court. Plaintiffs move that this request be deemed admitted.

Request No. 45: Does Dr. Castle admit that he could have given Mr. Cotton Vitamin K which would have reversed the effects of the anti-clotting medications that Mr. Cotton was taking.

Response No. 45: Objection. This request is ambiguous as the phrases “could have given”, “reversed the effects”, “anti-clotting medications” and “Vitamin K” are subject to multiple interpretations and does not provide any specific time frame; therefore, this request is ambiguous and cannot be admitted or denied as phrased. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

Dr. Smith testified under oath that giving a patient Vitamin K will reverse the effects of anti-clotting medications. The testimony appears at page 136:

If you wanted to increase the time or speed
3 up the time for Mr. Cotton's blood to clot, is there
4 something else that could have been prescribed to him?
5 Other than taking away the Coumadin and
6 Lovenox, is there something else you could prescribe
7 for him to take that would help his blood clot
8 quicker?
9 A Well, I mean to change the clotting you
10 could give Vitamin K or other reversals. But there
11 was no indication for that in this patient.

Once again Dr. Castle clearly understood the same question during his deposition and even offered that Vitamin K will reverse the anti-clotting effects of the anticoagulant medication. Now, when he is required to admit this same fact - he is bewildered. The Court should not accept yet another of Dr. Castle’s word games. The Court should order that Plaintiffs’ Request No. 45 is deemed admitted.

Request No. 47: Does Dr, Castle admit that a physician should not permit a patient such as Lawrence Cotton to be administering anti-clotting medication if that patient is suffering from internal bleeding.

Response No. 47: Objection. This request is ambiguous as the phrases “should not permit” and “anti-clotting medication” and “internal bleeding” are subject to multiple interpretations and does not provide any specific time frame; therefore, this request is ambiguous and cannot be admitted or denied as phrased. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

This request asks Dr. Castle to admit that anticoagulant medication should not have been administered to a patient such as Mr. Cotton if the patient was suffering from internal bleeding. Instead, Dr. Castle claims that he can neither admit nor deny this request because he the terms “anti-clotting” and “internal bleeding” are “subject to multiple interpretations.” Unsurprisingly, the same language was used during the questioning at Dr. Castle’s deposition and he had no trouble responding:

Page 132 - 133

Q Would it be fair to say that if you were
7 aware that Mr. Cotton was bleeding internally at the
8 site of his fracture you would have discontinued the
9 Lovenox and Coumadin?
10 MR. DAVIS: Objection to form and the
11 hypothetical nature.
12 You can answer.
13 THE WITNESS: Well, if I knew that he was
14 bleeding internally I would have stopped it. Yes.
15 BY MR. GASTON:
16 Q Because for a patient who has internal
17 bleeding the administration of a blood thinning and
18 anticoagulant medicine would make it easier for the
19 patient to bleed internally, correct?
20 MR. DAVIS: Objection to form.
21 You can answer.
22 THE WITNESS: Yes.
Page 133
1 BY MR. GASTON:
2 Q And it would be contraindicated?
3 A If you knew they were bleeding.
4 Q Is that a yes?
5 A Yes. With that proviso.

Throughout his Responses to Plaintiffs’ Request for Admissions of Fact, Dr. Castle has made the disingenuous claim that Plaintiffs’ requests were so ambiguous that he was unable to admit or deny them even though the same questions were asked of him during his deposition and he clearly understood those questions and intelligently answered them. The Court should therefore order that Request No. 47 is deemed admitted.

Request No. 52: Does Dr. Castle admit that Lawrence Cotton’s death certificate is a public record kept in the normal course of business and is accurate and genuine.

Response No. 52: Objection. The Request fails to provide the document to which it seeks the admission of genuineness; therefore, this request cannot be admitted or denied. Moreover, it is improper to seek an admission as to the “accuracy” of the documents. Pursuant to Maryland Rules, to the extent a response is required, this request is denied. Defendant will consider a stipulation as to the genuineness of the death certificate once it is clearly identified by the plaintiff.

Basis for Motion to Compel:

How many death certificates for Mr. Cotton does Dr. Castle think the Plaintiffs could possibly be talking about? This request asks Dr. Castle to admit that the Lawrence Cotton’s death certificate is accurate and genuine. The death certificate was identified as an exhibit during Dr. Castle’s deposition and he testified from the death certificate. His refusal to admit that the death certificate, which he himself signed and held in his own hands, is not accurate and genuine is disingenuous. The Plaintiffs request that this Court order that Request No. 52 is deemed admitted.

Request No. 55: Does Dr. Castle admit that when he signed Lawrence Cotton’s death certificate on May 24, 2007, that he certified that the immediate causes of Lawrence Cotton’s death were Renal Failure, Hepatic Failure, Exacerbation of autoimmune Disease, and Left Pelvic fracture.

Response No. 55: Objection. The request is ambiguous as the term “certified” is subject to multiple interpretations; therefore this request is ambiguous and cannot be admitted or denied as phrased. Moreover, the document speaks for itself Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

All this request requires Dr. Castle to do is to admit that when he signed the death certificate he certified that the causes of death were those that were written on the death certificate. The death certificate on its faces states “Certifying Physician: To the best of my knowledge, death occurred at the time, date and place and due to the cause(s) and manner as stated.” See Exhibit 1. Doctor Castle signed the death certificate as the “Certifying Physician.” Once again, Dr. Castle informs this Court that he is confused because the term “certified” is ambiguous even though he actually signed the document as a “Certifying Physician”. This is yet another word game from Dr. Castle in an attempt to duck yet another of Plaintiffs’ requests. The Plaintiffs request that the Court order that this request is deemed admitted.

Request No. 63: Does Dr. Castle admit that prior April 18, 2011, he never told any of his own expert medical witnesses that he believed that Mr. Cotton’s proximate cause of death was due to Kayexalate aspiration.

Response No.63: Dr. Castle has never spoken with any of his expert medical witnesses therefore this request cannot be admitted or denied as phrased. Pursuant to Maryland Rules to the extent a response is required, this request is denied.

Basis for Motion to Compel:

This request asks Dr. Castle to admit that he never told any of his experts that he believed that Mr. Cotton’s death was caused by Kayexalate aspiration. Dr. Castle responds by refusing to answer the request claiming the reason he cannot admit or deny the request is because he has never spoken to any of his experts. This makes no sense. If Dr. Castle has never spoken to any of his experts, then the only good faith answer available to him is “admit.” The Plaintiffs move that this request be deemed admitted.

Request No. 66: Did Dr. Castle know that Kayexalate could have been administered to Mr. Cotton rectally?

Response No. 66: Objection. The request is ambiguous as the term “know” is subject to multiple interpretations, fails to identify a specified time, and is improper as it does not seek defendant to admit or deny the request; therefore this request is ambiguous and cannot be admitted or denied as phrased. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

This request asks Dr. Castle to admit that Kayexalate could have been administered to Lawrence Cotton rectally. The doctor’s refusal to admit this request is unfounded. Over and over again he states that words in common English usage are “ambiguous” or “subject to multiple interpretations” and that because of this he is unable to admit or deny the request. In this response he claims the word “know” is ambiguous and/or subject to multiple interpretations.

Mr. Cotton was given Kayexalate orally. Dr. Castle’s experts claim that Mr. Cotton died of Kayexalate aspiration. This is his defense to the claim that the wrongful death was caused by internal bleeding. Whether Dr. Castle knew that Kayexalate could have been administered rectally is a fair and relevant inquiry. The Court should order that this request is deemed admitted.

Request No. 69: Does Dr. Castle admit that when he signed the Plaintiff’s Answer to Interrogatories under oath and subject to the penalties of perjury on December 22, 2010, that none of his own expert witnesses had reached any opinion that Lawrence Cotton died from Kayexalate aspiration.

Response No. 69: Objection. This request seeks information protected by the work product privilege and attorney client privilege; therefore, defendant refuses to respond to this Request.

Basis for Motion to Compel:

The Plaintiff is entitled to know when Dr. Castle’s experts reached the opinion that Mr. Cotton died of Kayexalate aspiration. The claim that this information is protected by the attorney client privilege is unfounded. Communication by and between experts and a party’s lawyer does not fall under the work product doctrine or within the attorney-client privilege. The Plaintiff is entitled to a response to this request.

Request No. 71: Does Dr. Castle admit that he does not know what was the proximate cause of Lawrence Cotton’s death.

Response No. 71: Defendant admits only that he will defer to his experts to opine as to the cause of death of Mr. Cotton. Defendant denies the remainder of this request.

Basis for Motion to Compel:

Either Dr. Castle knows what caused the death of his patient Lawrence Cotton or he does not. As the treating physician he completed the death certificate which listed the causes of death. He had the opportunity to review the autopsy report and has no reason to challenge the findings in the report. He cannot defer the cause of Mr. Cotton’s death to his experts. The Plaintiff is entitled to a definitive answer to this request.

Request No. 78: Does Dr. Castle admit that the standard of medical care applicable to him for the treatment of Lawrence Cotton is the same standard of medical care that would apply to a similar skilled physician treating a patient with similar complaints and medical conditions at any hospital in the State of Maryland.

Response No. 78: Objection. This Request seeks the admission of the ultimate issues of fact in dispute, rather than primary evidentiary facts. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

This request asks Dr. Castle to admit that the applicable standard of care for him during the treatment of Mr. Cotton is the same as the standard of care for a similarly skilled doctor treating a patient with similar complaints at any other hospital in Maryland. Dr. Castle was asked this same question during his deposition and he admitted that the standard of care was the same. The questioning occurred on page 147 through 148:

BY MR. GASTON:
9 Q Do you agree that the standard of care for
10 a doctor with your qualifications and skill for
11 treating a patient with similar conditions is the same
12 whether the patient is in Montgomery Hospital or
13 Baltimore County or Hopkins or some other place in
14 Maryland?
15 Do you agree that the standard of care
16 would have to be the same?
17 MR. DAVIS: I will just object to the
18 form of the question. I think you are asking him
19 about a legal opinion.
20 But if you understand it, you can answer.
21 THE WITNESS: It seems like a reasonable
22 thing to assume. Yes.
Page 148
1 BY MR. GASTON:
2 Q It would be the same and there is no lower
3 care that would be provided to a patient if he was a
4 patient in Baltimore County or Baltimore City or
5 somewhere else other than Montgomery County.
6 Would you agree with that?
7 A Right. Yes.

Because Dr. Castle already admitted under oath during his deposition what was asked in Request No. 78, there is no legal reason that can be advanced for his refusal to admit the very same thing now. The Plaintiff requests that the Court order that the request has been admitted.

Request No. 81: Does Dr. Castle admit that Lawrence Cotton died while under his care at Montgomery General Hospital.

Response No. 81: Objection. This request is ambiguous as the phrase “under his care” is subject to multiple interpretations; therefore, this request is ambiguous and cannot be admitted or denied as phrased. Pursuant to Maryland Rules, to the extent a response is required, this request is denied.

Basis for Motion to Compel:

This request asks Dr. Castle to admit that Mr. Cotton died while under his medical care at Montgomery General Hospital. It is a simple straight-forward question and this fact is the lynchpin for the entire complaint against Dr. Castle. He cannot refuse to answer this request. Once again he claims that the request is ambiguous because the term “under his care” is “subject to multiple interpretations.” The basis for his refusal to either or admit deny the request is groundless. Playing games with the English language to refuse to either admit or deny a bona fide request should not be tolerated by the Court. The Court should order that the request is deemed admitted.

Request No. 85: Does Dr. Castle admit that he will not be providing any personal testimony himself on the applicable standard of medical care and whether he did or did not breach the applicable standard of medical care in this case.

Response No. 85: Defendant admits only that Dr. Castle will not be providing testimony as to the applicable standard of care as a designated standard of care expert pursuant to Md. Rule 2-402(g). Defendant denies the remainder of this request.

Basis for Motion to Compel:

This request asks Dr. Castle to admit that he will not be providing expert testimony himself on whether he followed the applicable standard of care. His response does not adequately address the question. The doctor once again ducks the question by not admitting, denying, or stating that he is unable to admit or deny the request. Instead, he provides a narrative that is non-responsive to Plaintiffs’ request. He carefully answered that he will not provide any testimony as an “expert” under a certain Maryland Rule. However, the request does not ask the doctor this question. The Plaintiff is entitled to know if Dr. Castle intends to tell the jury that he did not breach the standard of care. He has refused to answer this question. Dr. Castle was asked this very same question during his deposition. He stated under oath that he was not going to provide any such testimony. The questioning is contained at pages 162-163:

Q I just need to know definitively other than
2 the one opinion we have heard here today do you intend
3 to give any other expert opinions in the field of
4 medicine during trial?
5 MR. DAVIS: I am going to object to the
6 form and foundation.
7 THE WITNESS: It was already answered by my
8 attorney.
9 BY MR. GASTON:
10 Q But I need to know --
11 A I mean I have no knowledge other than that
12 actually.
13 I mean I am not determining what is going
14 to happen at the trial.
15 MR. GASTON: Well, I still didn't get the
16 right answer. You can instruct him not to answer.
17 MR. DAVIS: I think he answered the
18 question, sir.
19 MR. GASTON: Well, I don't think he did.
20 THE WITNESS: Well, that is all the answer
21 I am going to give because I don't know.
22 I mean my answer is I do not intend to give
Page 163
1 any further. I do not intend to give those answers or
2 to testify as an expert in the court.
3 MR. GASTON: Thank you very much.

Dr. Castle should not be permitted to offer any opinions or testimony himself at trial in this medicial malpractice lawsuit as to whether he followed the applicable standard of care because he already told the Plaintiffs at his deposition that he was not going to provide any such testimony. He cannot ambush the Plaintiffs at trial with any such testimony. The Court should order that this request is deemed admitted.

WHEREFORE: The Plaintiffs respectfully request that this Honorable Court grant the Plaintiffs’ Motion and compel Dr. Castle to submit full and complete responses to the requests for admissions listed above or, in the alternative, that the Court order that the Plaintiffs’ requests are deemed admitted.

Respectfully submitted,
MILLER & ZOIS, LLC

Rodney M. Gaston
1 South St, #2450
Baltimore, MD 21202
(410)779-4600
(410)760-8922 (facsimile)
Attorney for the Plaintiffs

POINTS AND AUTHORITIES

  1. Maryland Rule 2-424.

Rodney M. Gaston

REQUEST FOR AN EXPEDITED HEARING

As the discovery deadline expires on June 6, 2011, the Plaintiffs request an expedited hearing on their aforegoing Motion.

Rodney M. Gaston

MD. RULE 2-341 CERTIFICATION

I, Rodney M. Gaston, hereby certify that on May 23, 2011, that I sent a letter via fax and e-mail to defense counsel requesting that Dr. Castle submit adequate responses to the requests indicated above. I also I informed defense counsel that I would be seeking an audience with the court on Wednesday, May 25, 2011 to present the Plaintiff’s Ex Parte Motion to Shorten Time and Request for an Emergency Hearing on the Motion within. I also personally spoke to Defense counsel on May 24, 2011, and requested that Doctor Castle submit adequate responses to the above Requests for Admission of facts. Defense counsel commented that the responses were adequate and in accordance with the Rules of Civil Procedure. Unfortunately, the defense attorney and I have a difference of opinion on the adequacy of the Defendant’s Responses and are unable to reach a resolution of this dispute.

Rodney M. Gaston

IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND

Civil Division

Megan E. Cotton, et al.
- Plaintiff,

v.

DAVID B. Castle, MD
- Defendant.

Case No. 337718V

ORDER

Upon consideration of the Plaintiffs’ Motion Challenging the Sufficiency of Defendant David Castle’s Responses to the Plaintiffs’ Request for Admissions of Fact, and any opposition thereto, it is on this _______________day of _________________2011,

HEREBY ORDERED:

  • That the Plaintiffs’ Motion is granted;
  • That all of the Requests for Admissions of Fact that are listed in the Plaintiffs’ Motion are admitted.

Judge / Circuit Court for Montgomery County

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