For The Defense, July 2010 - DRI Today

More importantly, the court reasonedthat admitting that evidence would undulyprejudice the physician and threaten toconfuse or distract the jury, forcing thephysician to simultaneously defend againsttwo separate sets of claims and invitinga distracting “mini-trial” into the mainproceedings. Under those circumstances,whatever significance the evidence mighthave had was “substantially outweighed bythe danger of unfair prejudice, confusion ofthe issues, or misleading the jury,” whichwarranted excluding the evidence underevidentiary principles.Peer Review EvidenceA couple of Florida appellate decisionsshow the care courts exercised to preventplaintiffs from improperly injecting peerreview proceeding information into medicalnegligence actions. In Lingle v. Dion,776 So. 2d 1073 (Fla. Dist. Ct. App. 2001),the court reversed a verdict against a physicianafter the trial court had allowed crossexaminationof the physician, who hadbeen pro se, over whether his privileges hadbeen suspended by the hospital. The trialcourt erred in “in permitting testimony tobe presented concerning [the physician’s]peer review process, and… in instructingthe jury that the lack of staff privileges wasnegligence per se.”Similarly in Liberty Mutual InsuranceCo. v. Wolfson, 773 So. 2d 1272 (Fla. Dist.Ct. App. 2000), although strictly speakinga dispute between an insured and insurerrather than a medical liability case, a verdictwas reversed after defense counsel forthe insurer questioned a treating physicianfor the insured, in an attempt to impeachhim, about peer review and his suspendedprivileges. The court found error becausethe questioning had improperly attackedthe physician’s credibility and informationabout the peer review process was privilegedunder Florida Statute §766.101(5).Federal Rule of Evidence 404(b) does notalways preclude evidence of “other acts.” InMacsenti v. Becker, 237 F.3d 1223 (10th Cir.2001), the rule did not preclude admissionof a dentist’s drug use during the two weeksleading up to the medical care at issue. Inthat case a dental assistant testified thatapproximately 12 days before the event thatled to the suit, she had witnessed the defendantpassed out in a dental chair with anitrous oxide mask on his face. The dentistargued that the trial court only should haveadmitted evidence of events occurring onthe day of the plaintiff’s appointment, butthe Tenth Circuit found that the trial courthad not abused its discretion in finding thealleged drug relevant and had not undulyprejudiced the defendant. Id. at 1236–7.See also, Linton v. Davis, 887 N.E.2d 960(Ind. App. 2008) (“[W]e conclude that thelicensure status of a physician who givesan expert opinion is admissible to impeachthe doctor’s opinion. The Board’s specificfindings regarding the care of a particularpatient, however, are not admissible ina judicial proceeding.”).Using Federal Rule 404(b)or State Equivalents to LimitAdmissibility of “Other Acts” inNegligent Credentialing CasesLawyers defending negligent credentialingcases should use Federal Rule of Evidence404(b) or state equivalents to limitthe admissibility of the “other acts” of credentialedphysicians. The cases describedabove clearly indicated that courts are sensitiveto the prejudicial nature of physicians’and health care providers’ prior “badacts.” Evidence of a physician’s prior lawsuits,substance abuse, disciplinary actionsor felony convictions are highly inflammatoryif a plaintiff seeks to argue that thisevidence is in some way relevant to thealleged negligence in his or her specificcase. So, the position counsel in a negligentcredentialing case should take is thata court should not allow a plaintiff to circumventthe limits that rules of evidenceestablish in a “stand alone” medical liabilitycase by then allowing a plaintiff tointroduce that “other acts’ evidence in anegligent credentialing case. One commentatorhas succinctly described the issue:[N]egligent credentialing cases havemoved forward successfully, which hasnot only made hospitals nervous butdoctors as well. Certainly, because ofthem, physicians face a higher degree ofscrutiny, whichever side of the credentialingreview desk they find themselvessitting behind. And if they end up in acombined malpractice- negligent credentialingcase, they face an even grimmerprospect: defending themselvesagainst evidence that most courts wouldhave ruled out of bounds in a straightupmalpractice trial—prior malpracticeverdicts and settlements, past disciplinaryactions, and so forth. Unless themalpractice and negligent credentialingclaims are decoupled and tried separately,as some defense attorneys havesucceeded in doing, such evidence isvery much in bounds.Wayne J. Guglielmo, Negligent credentialing:Is the danger growing? Medical Economics,May 4, 2007.Defense counsel should prepare for aplaintiff ’s counsel to argue that “otheracts” evidence is admissible for purposesrelated to proving other elements of a claimagainst a hospital. Federal Rule of Evidence404(b) and similar state rules provide thebasis for admission of “other acts” evidence“for other purposes, such as proofof motive, opportunity, intent, preparation,plan, knowledge, identity, or absenceof mistake or accident,….” As a negligentcredentialing claim is based on a hospital’sknowledge or failure to obtain knowledgeof a physician’s shortcomings, “otheracts” evidence can loom large. For example,an Arizona appellate court affirmed theadmission of evidence of prior suits againsta physician because they were relevant toprove notice to the hospital. Purcell v. Zimbelman,500 P.2d 335 (Ariz. App. 1972).In Purcell v. Zimbelman the court wrote,“Since the negligence of the hospital waspredicated upon failure to perform its obligationto Zimbelman to see to it that onlyprofessionally competent persons were onits staff, it follows that its knowledge, actualor constructive, of Dr. Purcell’s shortcomings,was an essential element for considerationin determining whether or not thehospital exercised reasonable care or hadbeen guilty of negligence.” Id.The strongest and most effective positiondefense counsel can take to exclude evidenceof a physician’s “other acts” in a negligentcredentialing case is to couple Federal Ruleof Evidence 404(b) or state equivalents withbifurcation, discussed below.A Procedural Tool: RequestingBifurcation of a NegligentCredentialing ClaimEvidence of “other acts” in a negligent credentialingcase can create significant prejudicethat can overshadow the fundamentalFor The Defense n July 2010 n 49