Physician Heal Thyself? Evidentiary Issues When a Physician is the Plaintiff
In a Medical Malpractice Case
Mark A. Abramson and Holly B. Haines
Our last article addressed the limited role of comparative fault in medical malpractice cases and the settled New Hampshire law on why the issue usually should not be presented to the jury due to the significant danger of an unfair assessment of fault. This danger is only heightened when the patient is a physician who is the victim of medical malpractice. Due to a plaintiff’s status as a physician alone, a jury may make unfair assumptions about his or her education, training and experience and improperly assess blame where it is unwarranted. Defense counsel may try to exploit these assumptions by implying that a physician plaintiff should have done more for him or herself than a lay plaintiff due to his or her inherent knowledge base, thereby deflecting blame from the defendant medical provider onto the plaintiff. Alternately, defense counsel may exploit these assumptions by implying that the plaintiff is a bad doctor because he or she did not make the appropriate diagnosis of his or her own condition. Both of these tactics are improper and should not be allowed at trial. A physician who is a patient is no different than any other person seeking medical care. When a physician is sick or injured, he or she is no less vulnerable, fearful, or in need than any of us. In certain ways, a physician plaintiff may be more vulnerable because he or she is used to providing care to others and now must seek care from someone else for a condition over which he or she has no control.
We recently represented two physician plaintiffs in medical malpractice cases where the defendants sought to deflect blame to our clients without affirmatively making a comparative fault claim. In one case, we represented an interventional cardiologist who was paralyzed after his partner failed to consider or diagnose an aortic dissection and performed an unnecessary cardiac catheterization using medications preventing definitive repair of the dissection and compromising the blood flow to his spine. In the other case, we represented an emergency room physician who suffered a stroke and permanent brain damage from an orthopedic provider’s failure to diagnose and treat his DVT for four months while providing treatment for a traumatic ankle fracture. Both of these physicians were well trained, experienced, medical doctors and both had either considered or diagnosed the conditions they suffered from in other patients.
In both cases, the defendants did not formally allege comparative fault, but did try to improperly elicit expert testimony from the physician plaintiffs and present evidence that the plaintiffs self-directed their own care by making diagnostic or treatment suggestions. The plaintiffs’ competence as physicians was not at issue in their medical malpractice cases. Nor was the plaintiffs’ treatment of any other patient at issue. Consequently, use of any evidence of the plaintiffs’ status as physicians and of their experience in considering or diagnosing their medical conditions would have been improper opinion testimony from a lay witness, it would have been irrelevant to any of the issues to be decided in the cases, and its admission would have been unfairly prejudicial to the plaintiffs due to the unfair inferences that may be made against them and the danger of an unfair assessment of fault.1 A plaintiff’s status as a physician, or his or her education, training and experience in medicine, should never be used by a medical malpractice defendant to deflect blame — through comparative fault or otherwise.
II. A Physician Plaintiff is not Comparatively at Fault in a Medical Malpractice Case
Comparative fault is a limited affirmative defense to medical malpractice that must be raised by formal pleading or pretrial statement.2 Our Supreme Court has cautioned that “courts should be reluctant to instruct juries on comparative negligence when the issue has not been pleaded or argued at trial.” 3 The Court has even suggested that evidence of comparative fault should not be introduced unless the issue has been properly pleaded prior to trial.4 Just as a plaintiff must disclose all of its allegations of fault against a defendant, a defendant must act in kind if he wants to blame a plaintiff or another party.5 In short, if a defendant does not properly plead an affirmative defense of comparative fault, evidence should not be admissible at trial.
The defendant bears the burden of pleading and proving each element of a comparative fault defense.6 The defendant must do so through expert testimony supporting proof of causal negligence.7 “Where there is no expert testimony that could support an inference of causal negligence, there is no issue for the jury.”8 As a general rule, for a defendant to assert a defense of comparative fault, the defendant must prove that the plaintiff breached a duty of care to himself and in doing so was a substantial factor in causing his injuries.9
In a medical malpractice case where a physician is the plaintiff, a defendant alleging the comparative fault of a physician plaintiff is essentially seeking “to reduce or eliminate the plaintiff’s recovery by apportioning professional liability [to the plaintiff], [so] it is only fair that he or she carry the plaintiff’s burden of proof outlined in RSA 507-E:2.”10 That statute requires expert testimony not only on causal negligence, but also on the standard of reasonable care for a physician plaintiff and its breach.11 Under this standard, comparative fault on the part of a physician plaintiff cannot be proven because a patient has no standard of care to which he or she should be held when receiving medical care.
Physicians have no duty to diagnose or treat themselves.12 The American Medical Association Code of Ethics expressly discourages this practice:
Physicians generally should not treat themselves. . . Professional objectivity may be compromised when . . . the physician is the patient; the physician’s personal feelings may unduly influence his or her professional medical judgment, thereby interfering with the care being delivered . . . When treating themselves . . . physicians may [also] be inclined to treat problems that are beyond their expertise and training.13
“A physician cannot adequately interview, examine, or counsel herself; without which, ordering diagnostic tests, medications, or other treatments is ill-advised.”14 In addition to having compromised professional objectivity, a physician patient also has the cognitive and emotional biases of exogenous life stressors, which are likely to compromise his or her judgment as a patient. While a physician patient may have a lesser knowledge disparity with his physician than a lay plaintiff, the special relationship between a physician patient, nonetheless, remains the same and the physician patient is entitled to rely on the physician he or she chooses to treat with.
It is not part of the duties of a patient to distrust his physician, or to set his judgment against that of the expert whom he has employed to treat him, or to appeal to other physicians to ascertain if the physician is performing his duty properly.15
Likewise, defendant physicians should avoid making assumptions about a physician patient’s knowledge base or the accuracy of a reported history. A physician patient may be more reticent to fully disclose medical problems due to concerns about sharing sensitive information with his or her colleague or having that information become a part of the medical record.16 Many physicians have written about the vulnerable state they were in as a patient, including the embarrassment, humiliation, fear, anger, hopelessness, and loss that accompanies a traumatic injury or a chronic or terminal illness.17 Their reported experiences were no different than those experienced by their own patients, and ultimately changed the way they practiced due to the disappointing, and often frustrating, level of care they received.
The bottom line is, a physician plaintiff owes no greater standard of care to himself than a lay plaintiff. If a defendant does not affirmatively plead comparative fault and prove causal negligence through properly disclosed expert testimony, evidence of comparative fault cannot be submitted to the jury at trial and medical malpractice defendants should be precluded from arguing, eliciting testimony or otherwise suggesting to the jury that a physician patient should have self-diagnosed or treated himself sooner.
III. A Physician Plaintiff Cannot Provide Expert Testimony in a Medical Malpractice Case
In a similar vein, because a physician patient is in the same position as a lay patient, a physician’s education, training and experience does not allow a defendant to improperly elicit expert opinion testimony from the physician plaintiff. When a physician is the patient and is the victim of medical malpractice, the physician is a percipient witness who can testify only to his or her experiences in receiving the negligent medical care. 18 As a lay witness and a victim of medical malpractice, a physician plaintiff may only testify to his opinions which are rationally based on his perception and helpful to a clear understanding of the facts at issue.19 This is especially true when, as in our cases, the defendants failed to disclose the plaintiffs as potential expert witnesses. If a physician, whether a plaintiff or a treater, has not been disclosed as an expert witness, it is improper to elicit expert opinion testimony from him or her at trial.
Our Supreme Court has long held that undisclosed expert testimony should be precluded,
even when it is provided by a factual witness.20 Similarly, our federal court requires an expert disclosure for “any witness a party may use at trial to present evidence under Federal Rules of Evidence 702, 703, or 705.”21 Failure to make such a disclosure precludes opinion testimony from being offered at trial.22
In Aumand v. Dartmouth Hitchcock Medical Center, our federal court specifically found
that testimony from a physician regarding “diagnoses, prognoses, or similar conclusions as to the patient’s condition are based upon scientific, technical, or other specialized knowledge, and, as such, are outside the scope of Rule 701.”23 While Aumand dealt with the opinions of a treating physician sought to be admitted as expert testimony, the rule is no less applicable when the opinions sought to be admitted are from a plaintiff physician. The complex medical subject matter of the testimony is what governs the expert disclosure requirement, not the identity of the person providing the testimony.24 Any testimony from a witness that goes beyond the facts of “what they saw and what they did” with relation to a medical condition falls outside of the scope of Rule 701 and requires an expert disclosure.25
In our cases, the defendants tried to elicit improper expert opinion testimony from our
physician plaintiffs during their depositions and most likely would have been precluded from doing so at trial. As in Aumand, the testimony the defendants sought to elicit was regarding the physician plaintiffs’ diagnoses and conclusions about their medical conditions and was based solely on the plaintiffs’ statuses as physicians and their specialized knowledge, training and experience. That testimony clearly falls outside of Rule 701 and is based on “scientific, technical or other specialized knowledge.” The plaintiffs only roles in our cases were to testify to “what they saw and what they did” as percipient victims of medical malpractice. The plaintiffs were not their own treating physicians and, as explained above, should not have been diagnosing and treating themselves. No further opinions should have been allowed.
IV. A Physician Plaintiff Cannot be Impeached by His Education, Training or Experience
When a defendant fails to plead and cannot prove comparative fault and does not disclose an intent for a plaintiff physician to provide expert opinions in a case, the only reason a medical malpractice defendant would use evidence of the plaintiffs’ physician status or education, training and experience with a medical condition is for impeachment purposes under N.H. R. Ev. 608 (b). Specifically, the defendants in such a case may argue that based on the plaintiff physician’s knowledge of the risk factors and symptoms of a medical condition from his or her education and training, and based on his or her experience diagnosing other patients with that medical condition, the physician would have diagnosed him or herself if actually experiencing those symptoms.
Under Rule 608(b):
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule § 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified…. (Emphasis added)
Evidence that a physician plaintiff has previously diagnosed a medical condition in his or her capacity as a treating physician has absolutely no bearing on his or her credibility as a witness or his or her character for truthfulness or untruthfulness. Consequently, evidence of such specific instances of conduct diagnosing that medical condition in other patients is inadmissible under Rule 608(b). Similarly, evidence of a plaintiff physician’s medical education and training on a medical condition is inadmissible because it bears solely on his or her competence as a physician, which is not in issue, and is not probative in any way of his or her capacity to tell the truth.26
Character evidence is inadmissible to prove conduct in conformity therewith.27 When a physician plaintiff brings a medical malpractice case against another physician, that does not raise any issue of the plaintiff’s own competence as a physician, so use of evidence of his or her education, training and experience to show his or her character for skill or competence as a physician is inadmissible.28 Allowing such evidence to be presented to the jury for impeachment, or for any purpose, would be unfairly prejudicial to the plaintiff physician because it would ask the jury to make the prohibited inference that the plaintiff would have acted in conformity with his or her prior behavior diagnosing patients with the medical condition if he or she actually experienced the claimed medical symptoms.29 Additionally, evidence that the physician plaintiff failed to diagnose and treat him or herself may have a tendency to cast him or her as a bad doctor and is unfairly prejudicial.30
Courts routinely exclude evidence of a defendant-physician’s treatment of other patients to establish the defendant was negligent on a particular occasion, reasoning that a doctor’s treatment of a patient in a prior occasion is not probative of his conduct in the specific treatment at issue.31 The same logic applies when the plaintiff is a physician.
There is no substantive evidentiary basis to admit this type of evidence because the physician plaintiff’s competence as a physician is not in question and he or she had no duty to diagnose him or herself.32 There is no procedural evidentiary basis for impeachment to admit this type of evidence because it does nothing to establish the physician plaintiffs’ character for truthfulness.33 By seeking to introduce this type of evidence, it is merely a back-door attempt to blame the plaintiff and introduce evidence of comparative fault without expressly making that claim. Alternately, it is an attempt to malign the plaintiff as a physician by creating the inference that he or she is a bad doctor because he or she failed to make his or her own diagnosis. For either purpose, the evidence is irrelevant and inadmissible at trial.34 Assuming any probative value can be ascribed to such evidence when a physician is a plaintiff in a medical malpractice case, it is substantially outweighed by the danger of unfair prejudice to the plaintiff.35
When a defendant does not formally plead comparative fault and formally disclose expert testimony by or against a plaintiff, there is absolutely no legal basis for the defendant to admit evidence of a physician plaintiff’s education, training, status as a physician, or experience in diagnosing or treating similar medical conditions. The defendant cannot prove comparative fault through using such evidence, because a physician has an obligation not to treat him or herself. Moreover, that type of evidence has no bearing on a physician’s capacity to tell the truth, so it is improper character evidence and inadmissible at trial. Because this type of evidence is not probative of any issue in a medical malpractice case and only holds the potential for unfair prejudice to a physician plaintiff, such evidence and argument should be excluded at trial.
1. SeeN.H. R. Ev. 701 (lay opinion), N.H. R. Ev. 401 & 402 (relevance), and N.H. R. Ev. 403 (unfair prejudice).
2. Brann v. Exeter Clinic, 127 N.H. 155, 159 (1985) (decided under prior statute).
4. Id. at 160.
5. SeeN.H. Super. Ct. R. 9 and RSA 515:3 (2007); see also Goudreault v. Kleeman, 158 N.H. 236, 256 (2009) (stating same for apportionment of fault to non-parties).
6. SeeRSA 507:7-d (2010); see also Brann, 127 N.H. at 159-60.
7. See Brann, 127 N.H. at 159.
9. SeeN.H. Civil Jury Instruction 8.1; see also Broughton v. Proulx, 152 N.H. 549, 558-559 (2003).
10. Goudreault, 158 N.H. at 256.
11. Id. (internal quotation marks and citations omitted) (citing RSA 507-E:2, I(a)-(c)).
12. SeeN.H. Bd. Med., Guidelines for Self-Prescribing and Prescribing for Family Members, (endorsing AMA Ethical Guidelines) (http://www.nh.gov/medicine/aboutus/self_presc.htm) (last accessed January 15, 2014).
13. AMA Code of Medical Ethics,Opinion 8.19, Self-Treatment of Immediate Family Members (issued June 1993).
14. Snyder, L., For the American College of Physicians Ethics, Professionalism, and Human Rights Committee, Ethics Manual, Sixth Edition. Ann Intern. Med. 2012; 156:73, 81.
15. Halverson v. Zimmerman,232 N.W. 754, 759 (N.D. 1930).
16. Domeyer-Klenske, A and Rosenbaum, M., When Doctor Becomes Patient: Challenges and Strategies in Caring for Physician-Patients, Fam. Med. 2012; 44(7):471, 474.
17. See, e.g., Kevin Campbell, M.D., “The Doctor Becomes the Patient: Lessons Learned from Wearing a Gown,” http://drkevincampbellmd.wordpress.com/2012/10/17/the-doctor-becomes-the-patient-lessons-learned-from-wearing-a-gown/(October 17,2012) (last visited March 17, 2014); Daniel Spogen, M.D., “What Happens When the Doctor Becomes the Patient?” http://blogs.aafp.org/cfr/leadervoices/entry/what_happens_when_a_doctor, (April 11, 2012) (last visited March 17, 2014); Edward E. Rosenbaum, M.D., A Taste of My Own Medicine: When The Doctor is the Patient (Random House, 1st Ed. 1988).
18. SeeN.H. R. Ev. 701.
19. See id.
20. See Wong v. Ekberg, 148 N.H. 369, 372-73 (2002)(citing Hydraform Prods. Corp v. American Steel & Alum. Corp., 127 N.H. 187, 201-202 (1987)).
21. Aumand v. Dartmouth-Hitchcock Medical Center, 611 F.Supp.2d 78, 88 (D.N.H. 2009) (quoting F.R.C.P. 26(a)(2)(A)) (internal brackets omitted) (emphasis added).
22. Id. at 89.
23. Id.(internal quotation marks omitted).
26.See, e.g. Hinson v. Clairemont Cmty. Hosp., 218 Cal. App.3d 1110, 1120 (1990) (finding evidence of medical education and training “is essentially character evidence tending to show one’s character for skill, competence or negligence [and] has generally been held inadmissible.”), disapproved of on other grounds by Alexander v. Superior Court, 859 P.2d 96, 100, 102 (Cal.1993).
27. N.H. R. Ev. 404(a).
28. N.H. R. Ev. 401 & 402.
29.Cf. N.H. R. Ev. 404(a).
30. SeeN.H. R. Ev. 403.
31. SeeMarc Ginsberg, Article: Good Medicine/Bad Medicine and the Law of Evidence: Is There a Role for Proof of Character, Propensity, or Prior Bad Conduct in Medical Negligence Litigation?, 63 S.C. L. Rev. 367, 380-81 (Winter 2011) (collecting cases excluding evidence of treatment of other patients by defendants in medical malpractice cases).
32. SeeN.H. R. Ev. 401 and 404(a).
33. SeeN.H. R. Ev. 608(b).
34. SeeN.H.R.Ev. 402.
35. SeeN.H. R. Ev. 403.
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