For The Defense, July 2010 - DRI Today

of action; (2) the severed claim is one thatwould be the proper subject of a lawsuit ifindependently asserted; and (3) the severedclaim is not so interwoven with the remainingaction that they involve the same factsand issues.” Id. at *6. Likewise, the courtindicated the objective of severance was“to do justice, avoid prejudice, and furtherconvenience.” Id.The Neeble court noted that Rule 404(b)of Texas Rules of Evidence precluded aparty from using evidence of prior acts toprove that a person acted “in conformitywith the past conduct.” Id. Thus, prior malpracticesuits against the physician wereinadmissible in the malpractice portion ofthe trial, but admissible to prove negligentcredentialing against the hospital in thatportion of the trial. Id. Noting the undueprejudice that would result in trying theclaims simultaneously, the court affirmedthe trial court’s decision to bifurcate them.In Patterson v. Marshall, No. 2008-CA-000157, 2009 WL 2341448 (Ky. Ct. App.July 31, 2009), arising from a surgical malpracticeallegation, the court affirmed “trifurcation”:“The trial court ordered thatthe trial proceed in three stages before thesame jury. The medical negligence claimagainst Dr. Marshall would be tried first,including compensatory damages, withoutreference to the negligent credentialingclaim against Methodist Hospital. Ifthe jury found for the Pattersons, thenMethodist Hospital’s statute of limitationsdefense would be heard next. Then, if thedefense was not sustained, the negligentcredentialing claim would be tried.”The judge’s trial plan involved presentingthe issues to the same jury in threephases, and all parties were allowed toparticipate in each phase of the trial. Theplaintiffs challenged the order allowingthe hospital to participate in the firststage, which involved the negligence claimagainst the physician.The trial court had also excluded all mattersregarding the physician’s employmenthistory, “including his loss of credentials atother hospitals and his credentialing files,”during the first phase, on the physician’smedical negligence, and denied the plaintiffs’motion to compel the hospital to producethe physician’s credentialing files andpeer review files.The appeals court, dealing with the challengeto the trial plan, stated that the trialcourt had properly exercised its discretion.As to the hospital’s participation in the firsttrial stage, the court stated:To prevent Methodist Hospital fromintroducing evidence of Dr. Marshall’scompliance with the standard of carewould have prevented Methodist Hospitalfrom defending itself against thenegligent credentialing claim under theprocedure utilized by the trial court.Moreover, review of voir dire belies thecontention that the jury was confusedby Methodist Hospital’s presence in thecase. The jury panel was informed thatthe case involved claims against bothDr. Marshall and Methodist Hospital.Counsel informed the jury that the trialwould occur in two phases and that thesame jury would hear both claims. Thetrial court did not abuse its discretionby allowing Methodist Hospital to participatein the medical negligence portionof the trial.On the trial court’s decision to excludeemployment and peer review evidence inthe first phase, the appeals court again heldthat the trial court had properly exerciseddiscretion, noting thatThe issue in the first phase of the trialwas whether Dr. Marshall deviatedfrom the standard of care in his postoperativetreatment of Claressia. Therewas no evidence that Dr. Marshall experiencedany disability during the timeperiod of Claressia’s treatment. The lossof Dr. Marshall’s privileges at two Alabamahospitals likewise had no bearingon his particular treatment of Claressia.The circumstances underlying Dr. Marshall’sprior loss of privileges would haveconfused the issues of medical negligenceand negligent credentialing. Dr.Marshall did not designate himself asan expert witness nor was he qualifiedas such. Dr. Marshall did not provideexpert opinion testimony. Dr. Marshallsimply related his factual observationsregarding the treatment of Claressia. Thetrial court did not abuse its discretion.Although its analysis was substantiallysimilar to decisions discussed above,at least one court has found bifurcationunnecessary. See, Corrigan v. MethodistHospital, 160 F.R.D. 55, 56 (E.D. Pa. 1995)(denying physicians’ motion to sever). InCorrigan, the court cited the followingthree factors that it considered in decidingwhether to bifurcate: (1) whether separatetrials would further the convenienceof the parties; (2) whether separate trialswould promote judicial economy; and (3)whether separate trials would avoid substantialprejudice to the parties. Id. (citingTri-R Sys. v. Friedman & Son, 94 F.R.D.726, 727 (D. Colo. 1982)) (holding the “merepossibility of some prejudice does not justifyseparate trials where such prejudice isnot substantial and there are strong countervailingconsiderations of economy”).Relying on federal authority, the courtnoted that federal courts generally orderseparate trials only when “clearly necessary,”and single trials “generally lessenthe delay expense, and inconvenience tothe parties and the courts.” Id. Despite theobvious evidentiary concerns—that evidenceof a physician’s prior malpracticeactions will “spill over” from a negligentcredentialing claim to an underlying malpracticeclaim—the court found only minimalpotential prejudice minimal. Id. at 58.Instead, the court held that a jury couldeasily differentiate the claims and issuingcautionary instructions to the jury couldeasily manage potential, lingering confusion.Id.When defending these cases, counselshould consider bifurcating both discoveryand trials. It makes sense to argueto bifurcate discovery, limiting the initialphase to the issues involved in themedical negligence claims. This approachwould focus discovery on the critical issuecommon to both claims—determiningwhether a physician has been negligent.It would also lessen credentialing discoveryexpense by postponing the need todepose those involved in the credentialingprocess, witnesses testifying on the physician’salleged defects and experts. In effect,stay the credentialing and privileging claimuntil the underlying malpractice case hasbeen resolved. If trying the underlying caseresults in a verdict for the plaintiff, then thesecond phase including discovery related tothe hospital claims, could commence.Splitting discovery, however, is ofteneasier said than done, particularly withtrial judges who hesitate to deny plaintiffsthe opportunity to advance their claims. InCredentialing, continued on page 91For The Defense n July 2010 n 51