Skeletons in Your Closet? Not Much 'Off Limits' in Deposition

But 'sideshow" evidence is frowned on

If an EP was caring for a patient while visibly intoxicated and a bad outcome occurred, you can probably imagine how that information would affect the outcome of a trial alleging medical malpractice. But what if an EP has a history of substance abuse, a criminal record, or a psychiatric history?

Linda M. Stimmel, JD, a partner at Wilson Elser Moskowitz Edelman & Dicker LLP in Dallas, TX, says to remember that not much is "off limits" in a deposition. "The discovery phase in a lawsuit is called 'open discovery,' which means the courts are very liberal in allowing the plaintiff and defendant to ask for all kinds of information on the parties."

Nearly every state, as well as federal courts, permits discovery into any matter that is reasonably calculated to lead to the discovery of admissible evidence, according to Justin S. Greenfelder, JD, a health care attorney with Buckingham, Doolittle & Burroughs in Canton, OH.

A physician's disciplinary history would rarely be discoverable, says Greenfelder, unless it can be shown that the discipline he received was somehow linked to the specific malpractice alleged.

"This is typically a high hurdle to overcome," says Greenfelder. "Many judges are loathe to permit plaintiff's attorneys to introduce such extraneous or 'side-show' evidence that has no bearing on the issues for the jury to decide."

In addition, Greenfelder notes, some states have enacted statutes that protect as confidential any information received by a state medical board in an investigation of a physician. In Ohio, for example, Revised Code Section 4731.22(F)(5) provides that any information received by the state medical board pursuant to an investigation is confidential and not subject to discovery in any civil action.

"It further provides that information may be admitted in a judicial proceeding in accordance with the Rules of Evidence, but that the court must take appropriate measures to protect confidentiality of information containing patient names, complaints, or information received by the board during the investigation," says Greenfelder.

For any of this information to be admissible in a court of law, Greenfelder says it must ultimately be relevant and probative to claim or defense, and not unduly prejudicial to the physician. "If the prejudice outweighs the probative value, the information would be inadmissible," he explains.

Is it Relevant?

Questions about a physician's prior indiscretions, which may not have been the subject of a medical board inquiry, may not necessarily be improper at a deposition, says Greenfelder. However, he says that the likelihood of admission at trial is low unless there is a connection to the patient's care.

"Whether a physician uses drugs or alcohol would rarely be relevant, unless it could be shown that the physician was actually impaired at the time of the alleged malpractice," Greenfelder says.

The plaintiffs have to prove any "bad or harmful" information on a party is relevant to the issues in a lawsuit, notes Stimmel.

"If they find a physician had a drug problem in the past, I would argue there was no evidence the physician was under the influence of drugs during the care of the patient, and that if the court lets the information in the trial, it would be prejudicial and harmful," she says.

Most of the time, the courts will not let in "prior bad acts," such as drug convictions or revocation or suspension of the physician's license decades earlier, if the plaintiffs do not have evidence linking these to the patient in the lawsuit, says Stimmel.

However, if there is evidence of a past felony, or what courts determine as "moral turpitude" or evidence of untruthfulness of a party, "it will get into a trial," she says.

"We then have to argue that it has nothing to do with the case at hand," says Stimmel. "Even so, I will object and not let my witness answer some of those types of questions, arguing that it is irrelevant and there is a right of privacy. The plaintiff will then be forced to go to the court to seek permission to ask the question. They may or may not prevail."

To reduce risks in your ED, Stimmel advises making sure that prior histories are disclosed to you by staff during an interview or application process. "You will know what you are up against if a lawsuit ensues," she says. "Of course, you need to be consistent and ask those same questions of everyone."

A Balancing Test

Greenfelder says that in Ohio, if a physician pleads guilty or is convicted of a crime punishable by death or imprisonment in excess of one year, or if the crime involves fraud or dishonesty, that conviction is typically admissible unless it would be more prejudicial than probative.

"A plea of no contest, on the other hand, is typically not admissible," he says. The same is true, says Greenfelder, for a conviction that is more than ten years old, or a conviction that has been expunged, annulled, or pardoned.

Michael M. Wilson, MD, JD, principal malpractice attorney at Michael M. Wilson & Associates, Washington, DC, says that according to the District of Columbia statute, if the felony is less than 10 years old, it is generally allowed in. "Under the federal rules of evidence, it is a balancing test for the judge, of probative value versus prejudicial effect," he says.

Wilson says that the personal medical treatment of the EP is generally off-limits, as far as obtaining the medical records, unless the lawyer can show "good cause" to the judge.

Wilson once handled a case of a physician with a drug and psychiatric history, who spent months in rehabilitation. The case settled prior to the judge resolving whether the plaintiff's attorney could obtain the medical records of the physician, he adds.

The general rule for depositions, says Wilson, is that the plaintiff's attorney can inquire about anything, as long as it could potentially lead to relevant information. "The new federal rules have changed the test a little bit, to give the judge more flexibility to rule certain things off-limits," says Wilson.

Another possibility is that the information could be revealed to the plaintiff's attorney subject to a confidentiality order, says Wilson.

"Pretty much these issues would be decided on a case-by-case basis," Wilson says. "If the physician killed two persons, was declared insane, treated, and then allowed to practice medicine, it would seem that a judge would allow this information to come into evidence if the physician allegedly killed a patient."

However, if a physician was seeing a psychiatrist for therapy about a divorce, Wilson says it is unlikely this would be allowed to be revealed. "Many other situations would come between these situations," says Wilson. "At trial, it would be a balancing test as to whether the information would come in."

Sources

For more information, contact:

Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5230. Fax: (330) 252-5520. E-mail: jgreenfelder@BDBLAW.com.

Linda M. Stimmel, JD, Partner, Wilson Elser Moskowitz Edelman & Dicker LLP, Dallas, TX. Phone: (214) 698-8014. Fax: (214) 698-1101. E-mail: linda.stimmel@wilsonelser.com.

Michael M. Wilson, MD, JD, Michael M. Wilson & Associates, Washington, DC. Phone: (202) 223-4488. Fax: (202) 280-1414. E-mail: wilson@wilsonlaw.com.