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Does an Oath Inoculate a Medical Witness from Being Biased in Favor of Other Healthcare Providers?

Oath

“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” – John Henry Wigmore 

The existence of financial bias is a well established area of cross-examination when dealing with the credibility of witnesses and experts alike.  Indiana law is clear that the income of an expert derives from his/her work as an expert is highly relevant and goes directly to bias and prejudice. See Ind.R.Evid. 411, 616; Ind. Pattern Jury Instruction No. 1.09; Brown-Day v. Allstate Ins. Co., 915 N.E.2d 548, 551-52 (Ind. App. 2009), trans. denied; Pickett v. Kolb, 237 N.E.2d 105 (Ind. 1968); Yates v. Grider, (1969) Ind. App. 251 N.E. 2d 846; Kleinrichert v. State, 530 N.E.2d 321 (Ind. App. 1980). As the Indiana Supreme Court stated in Pickett, supra:

It has long been the law in all jurisdictions of which we are aware that a witness may be properly cross-examined with respect to his interest in the litigation in question. He may be cross-examined with reference to his motives, his feelings, friendly or unfriendly towards the parties or other witnesses involved, his employment by either of the parties or some third party, and a contractual relationship with reference to his interest in the litigation and any financial considerations that might have influenced him.

[P]roof of liability insurance in and of itself is not admissible, but such a principle may not be expanded to the extent that it serves as a means of excluding otherwise competent evidence which is relevant to the issues involved in the trial. We do not think that a trial court may arbitrarily exclude otherwise competent and relevant evidence merely on the ground that it will reveal an insurance carrier is involved.

In this case, as previously stated, if a party sees fit to present a witness on his behalf, the opposing party has a right to cross-examine that witness with reference to all his interests in the litigation, including who is compensating him or giving him anything of value which resulted in his being a witness or participating actively in the litigation.

237 N.E.2d at 107-08. The Indiana Supreme Court’s rules trump any statute when the provisions conflict.  In re Termination of the Parent-Child Relationship of B.H., 2013 Ind. App. LEXIS 256 (Ind. Ct. App. May 30, 2013).  The principle that this rule of law survived the adoption of the Indiana Rules of Evidence was confirmed in Brown-Day, 915 N.E.2d at 551-52.  Indiana Rule of Evidence 411 explicitly excepts evidence of bias from the restriction on presenting evidence of insurance.  This Rule provides:

Rule 411. Liability Insurance

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.  [Emphasis Added].

Indiana Rule of Evidence 616 recognizes that witnesses are subject to cross examination on topics addressing bias. This Rule provides:

Rule 616. Witness’s Bias

Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness. [Emphasis Added].

Evidence that a witness has a bias, prejudice, or interest for or against any party may be used to attack the credibility of the witness.  The fact that embraces the topic of the Patient Compensation Fund should not prevent such inquiries.  By analogy inquiries regarding a juror’s interest in an insurance company is a valid line of inquiry. In the matter of Beyer v. Safron, 84 Ind. App. 512, 151 N.E. 620 (1926), the court stated:

[L]itigants are entitled to a trial by a thoroughly impartial jury, and to that end have a right to make such preliminary inquiries of the jurors as may seem reasonably necessary to show them to be impartial and disinterested. It is a matter of common knowledge that there are numerous companies engaged in such insurance, and that many of the citizens of the state are stockholders in one or more of them. Such citizens may be called as jurors, and if at such time they are such stockholders, or otherwise interested in any of such companies, their pecuniary interest might disqualify them to sit as jurors.

Id. at 621.

Panel members should be able to be questioned regarding their financial interest in the outcome of a medical malpractice case since each of them our participants in the patient compensation fund and are financially impacted by any monies awarded from the fund.  The collective impact of favorable plaintiff’s verdicts is not trivial and has a financial impact on panel members.  The prohibition on mentioning insurance is not absolute.  Under Rule of Evidence 411, evidence that a witness was insured against liability is admissible to prove their “bias” or “prejudice”.    While recognizing all of these arguments exist, the Court of Appeals here in Indiana has refused to overturn a trial court’s discretionary decision to exclude such evidence pursuant to Indiana Rule of Evidence 403.  This rule leans in favor of admitting such evidence (unlike Rule 608 which deals with evidence of criminal convictions).  The attendant prejudice must substantially outweigh the probative value.   A trial court’s decision on this issue may only be reversed for an abuse of that discretion to n deciding this issue. In Tucker v. Harrison, 973 N.E.2d 46 (Ind. App. 2012) upheld the trial court’s decision to exclude such evidence noting:

Any specific bias on the part of the three members of the medical review panel in this case would certainly be relevant. See Ind. Evidence Rule 616 (“For the purpose of attacking the credibility of a witness, evidence of bias … of the witness for or against any party to the case is admissible.”). Each member of the review panel signed the required oath. Dr. Michelle Murphy, one of the review panel members, testified at trial that she signed the oath, that she took the oath seriously, and that she had no bias for either Tucker or Dr. Harrison when she considered the evidence and gave her opinion. (citations omitted). Dr. Margaret Miser, also a member of the review panel, also testified that she took the oath, honored it, and complied with it in her work on the review panel. [Emphasis Added].

Id. at 55.  Alas, if an oath guaranteed truth there would be no need for cross-examination or even a trial for that matter.  Bias can occur on an unconscious level and is not cured by being placed under oath.  If not, why is it so difficult to get local doctors to assist and go on the record in medical malpractice case against another doctor?      The Court of Appeals went on to observe:

[The Plaintiff’s] proffered evidence merely speculates through Dr. McLaughlin’s expected testimony that every doctor in Indiana—all of whom are required by law to participate in the Patient’s Compensation Fund and to serve as review panel members-have such an interest in limiting their financial exposure by limiting payouts from the Patient’s Compensation Fund that they would render opinions based on such interest. However, [the Plaintiff] has not shown that Dr. McLaughlin is qualified to testify about system-wide bias, if any exists, and she offers no evidence of the amount of the financial exposure doctors allegedly face from which the likelihood of such skewed opinions could be assessed. By statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e). (Emphasis Added).

Id. at 55.  The Court of Appeals then held that:

When balanced against the prejudicial effect of allowing evidence of professional liability insurance, the potential for bias in this case is so remote as to warrant exclusion. ***The trial court did not clearly err in excluding the proffered bias testimony.

Id.   Ultimately the issue remains one for the trial court to resolve in its discretion.  In order to succeed in present such evidence of bias, quantifying the amount of this contribution to the patient compensation fund by each doctor may be necessary to overcome a claim of unfair prejudice by the defense.   The size of this contribution by a panel member may well vary depending upon the area of practice, the doctor’s risk history and the true number of practitioner’s that participate in the Fund.  See the Schedule below and the dollar amounts of the Compensation Fund surcharge by classification of specialties found in Indiana’s Administrative Code:

Surcharge Rates - Patient Compensation Fund

These classes breakdown as follows in terms of areas of practice per 760 IAC 1-60-3 (Rule 60):

760 IAC 1-60-3 List of physician specialty classes
Authority: IC 34-18-5-2
Affected: IC 34-18-5-2
Sec. 3. The list of physician specialty classes required by IC 34-18-5-2 is as follows:
Indiana Department of Insurance
Patient’s Compensation Fund
Physician Class Plan
Class 0
ISO Code Specialty
80001 Resident Nonmoonlighting
80221 Resident Moonlighting (No ER)
80230 Aerospace Medicine
80231 General Preventive Medicine – No Surgery
80234 Pharmacology – Clinical
80236 Public Health
80240 Legal Medicine and Forensic Medicine
80248 Nutrition
80249 Psychiatry (Including Child)
80250 Psychoanalysis
80251 Psychosomatic Medicine
80254 Allergy
80256 Dermatology – No Surgery
80263 Ophthalmology – No Surgery
80266 Pathology – No Surgery
Class 1
ISO Code Specialty
80233 Occupational Medicine
80235 Physical Medicine and Rehabilitation
80237 Diabetes – No Surgery
80238 Endocrinology – No Surgery
80239 Family Practice – No Surgery
80241 Gastroenterology – No Surgery
80242 General Practice – No Surgery
80243 Geriatrics – No Surgery
80244 Gynecology – No Surgery
80245 Hematology – No Surgery
80246 Infectious Disease – No Surgery
80247 Rhinology – No Surgery
80252 Rheumatology – No Surgery
80255 Cardiovascular Disease – No Surgery
80257 Internal Medicine – No Surgery
80258 Laryngology – No Surgery
80259 Neoplastic Disease – No Surgery
80260 Nephrology – No Surgery
80261 Neurology (Including Child) – No Surgery
80262 Nuclear Medicine
80264 Otology – No Surgery
80265 Otorhinolaryngology – No Surgery
80267 Pediatrics – No Surgery
80268 Physicians (Not Otherwise Classified) – No Surgery
80269 Pulmonary Disease – No Surgery
80420 Family Physicians – No Surgery
Class 2
ISO Code Specialty
80223 Resident Moonlighting (with ER)
80253 Radiology – No Surgery
80280 Radiology – Minor Surgery
80282 Dermatology – Minor Surgery
80289 Ophthalmology – Minor Surgery
80292 Pathology – Minor Surgery
80425 Radiation Therapy – Not Otherwise Classified
80431 Shock Therapy
Class 3
ISO Code Specialty
80109 Physicians – No Major Surgery
80114 Surgery – Ophthalmology
80132 Physicians (Not Otherwise Classified) – Minor Surgery
80172 Physician (Not Otherwise Classified) – No Major Surgery
80270 Rhinology – Minor Surgery
80271 Diabetes – Minor Surgery
80272 Endocrinology – Minor Surgery
80273 Family Practice – Minor Surgery
80274 Gastroenterology – Minor Surgery
80275 General Practice – Minor Surgery
80276 Geriatrics – Minor Surgery
80277 Gynecology – Minor Surgery
80278 Hematology – Minor Surgery
80279 Infectious Diseases – Minor Surgery
80281 Cardiovascular Disease – Minor Surgery
80283 Intensive Care Medicine – Minor Surgery
80284 Internal Medicine – Minor Surgery
80285 Laryngology – Minor Surgery
80286 Neoplastic Diseases – Minor Surgery
80287 Nephrology – Minor Surgery
80288 Neurology (Including Child) – Minor Surgery
80290 Otology – Minor Surgery
80291 Otorhinolaryngology – Minor Surgery
80293 Pediatrics – Minor Surgery
80294 Physicians (Not Otherwise Classified) – Minor Surgery
80421 Family Physicians (GP) – Minor Surgery – No OB
80422 Catheterization, Not Otherwise Classified
80424 Emergency Medicine – No Surgery
Class 4
ISO Code Specialty
80000 Family Practice – with OB
80101 Broncho-Esophagology
80115 Surgery – Colon and Rectal
80117 Surgery – GP (Not Primarily Engaged in Surgery)
80145 Surgery – Urological
80151 Surgery – Anesthesiology
80163 Radiation Therapy – Employed Physicians or Surgeons with Major Surgery
80428 Physicians – Minor Invasive Procedures – Myelography
80434 Physicians – Minor Invasive Procedures – Lymphangiography
80437 Physicians – Minor Invasive Procedures – Acupuncture
80440 Physicians – Minor Invasive Procedures – Laparoscopy
80443 Physicians – Minor Invasive Procedures – Colonoscopy
80446 Physicians – Minor Invasive Procedures – Needle Biopsy
80449 Radiopaque Dye Injection
Class 5
ISO Code Specialty
80102 Emergency Medicine – No Major Surgery
80103 Physicians – Surgery – Endocrinology
80104 Physicians – Surgery – Gastroenterology
80105 Physicians – Surgery – Geriatrics
80106 Surgery – Laryngology
80107 Physicians – Surgery – Neoplastic
80108 Physicians – Surgery – Nephrology
80158 Surgery – Otology
80159 Surgery – Otorhinolaryngology
80160 Physicians – Surgery – Rhinology
80419 Family or General Practice – Major Surgery
Class 6
ISO Code Specialty
80141 Surgery – Cardiac
80143 Surgery – General Not Otherwise Classified
80155 Surgery – Plastic – Otorhinolaryngology
80156 Surgery – Plastic Not Otherwise Classified
80157 Surgery – Emergency Medicine
80166 Surgery – Abdominal
80167 Surgery – Gynecology
80169 Surgery – Hand
80170 Surgery – Head and Neck
Class 7
ISO Code Specialty
80144 Surgery – Thoracic
80146 Surgery – Vascular
80150 Surgery – Cardiovascular Disease
80154 Surgery – Orthopedic
80171 Surgery – Traumatic
Class 8
ISO Code Specialty
80152 Surgery – Neurology (Including Child)
80153 Surgery – Obstetrics/Gynecology
80168 Surgery – Obstetrics

The facts the Indiana Court of Appeals had to assume  given the underdeveloped record before the trial court, substantially underestimated the amount of money contributed by doctors and other healthcare providers on a yearly basis.  While by statute, the financial exposure could be as little as $100 per year. See Ind.Code § 34–18–5–2(e).  This is not the reality. Depending on the area of practice, the actual dollar amounts contributed by healthcare providers are from 2,222% to 25,186% higher than the $100 annual fee assumed by the Court of Appeals!  The actual potential for bias when viewing the real numbers is neither remote nor trivial.   Such evidence of financial bias on the part of Panel Members should be admissible and evaluated by the finder of fact. The probative value of such evidence is high and is not substantially outweighed by the risk of unfair prejudice. 

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Confirmation Bias: Foe of Justice and Truth

  
“Confirmation Bias” has nothing to do with the Holy Spirit. It is a mindset we all are susceptible to in the way we see the world. ‘Confirmation Bias’ is a psychological phenomenon that explains why people tend to seek out information that confirms their existing opinions and overlook or ignore information that refutes their beliefs.’

“Confirmation bias” can lead to misdiagnosis, researching errors, missed evidence and analytical flaws in our every day thinking. That’s why it is important to always try and strive to keep an open mind when you investigate claims, research legal issues and critique the analysis of your experts as well as those of your opponent.

In medical malpractice cases for example, the doctor can start off with a predetermined idea as to the cause of the patient’s medical problem. This can result in the doctor ignoring or overlooking important evidence which would lead to an accurate differential diagnosis.  The patient’s suffering is prolonged and exacerbated because the wrong treatment is given.

In the relm of criminal litigation, police and prosecutors may prematurely focus on a prime suspect and ignore other persons who could potentially be responsible for the crime at issue.  The popular Netflix docu-series “Making a Murderer” about Steven Avery is a classic example of how this can occur.  The focus of the investigation is prematurely narrowed. As a result, investigative leads are ignored. Evidence is overlooked and lost forever.  

An excellent book, “The Innocent Man” by John Grisham also documents the same type of errors.  The belief of the police, that they had their man, blinded them to the truth.  This resulted in an innocent man, Ron Williamson, being wrongfully convicted of a crime he did not commit.  At one point, Williamson was five days away from being executed.  Ironically, the actual perpetrator of the crime sent the police chasing the false lead and caused the State to prosecute  and convict the wrong man (Ron Willamson) of the murder along with another man.  This man’s only crime was being Ron’s friend and refusing to give false testimony implicating Ron Willamson in a rape-murder neither of them committed.  Thanks to the Innocence Project, both men years later were released and exonerated through DNA testing performed on the victim’s clothing.

Such informational bias and prejudice on the part of juries may make a fair verdict impossible or very difficult to obtain. You must deal with this problem in your voir dire examination and seek leeway from the court to thoroughly explore such biases.  This requires the use of mock juries, jury questionnaires, individual examination of jurors, adequate time for jury selection and in some instances a change of venue or venire. 

Social media, sensational news articles and reader comments can pollute the jury pool.  Bias and unsubstantiated claims fill the air of the community.  These must be explored. In this regard, please read the article below:
http://www.bloombergview.com/articles/2016-01-08/how-facebook-makes-us-dumber

So keep an open mind and it just might be the key to your case. 

Medical Malpractice: When Common Sense Trumps Expert Knowledge

20120115-144530.jpgMedical malpractice cases are difficult and expensive to litigate.  However, sometimes experts are not required… Just common sense.

Indiana has long embraced the “common knowledge exception” to requirements of expert testimony in certain matters. A physician’s allegedly negligent act or omission can be so obvious that expert testimony is unnecessary. Wright v. Carter, 622 N.E.2d 170, 171 (Ind. 1993).

​In Indiana, cases where expert opinion evidence is not necessary typically involve the failure of the operating physician to remove some foreign object from the patient’s body. Funk v. Bonham (1932), 204 Ind. 170, 183 N.E. 312 (sponge left in abdomen), Ciesiolka v. Selby (1970), 147 Ind. App. 396, 261 N.E.2d 95 (teflon mesh left in abdomen); Klinger v. Caylor (1971),148 Ind. App. 508, 267 N.E.2d 848 (“surgical padding” left in intestinal tract); and Burke v. Capello (1988), Ind.,520 N.E.2d 439 (cement left in hip). Likewise, in a similar fashion, res ipsa loquitur applied when a patient’s oxygen mask caught fire during surgery, see Cleary v.Manning, 884 N.E.2d 335, 339 (Ind. Ct. App. 2008).

This same sort of common sense approach is endorsed in other jurisdictions as well.Bernsden v. Johnson, 174 Kan. 230, 236-37, 255 P.2d 1033 (1953)(applying exception when post-surgery choking was caused by metal disc lodged in patient’s throat); Biggs v. Cumberland County Hospital System, Inc., 69 N.C.App. 547, 317 S.E.2d 421 (1984) (where patient is known to be in weakened condition and is left alone in shower, where she falls, expert testimony on standards for nurse’s aides not required); Burks v. Christ Hosp., 19 Ohio St.2d 128, 131, 249 N.E.2d 829 (1969) (sedated, obese patient fell from hospital bed without side rails);   Cockerton v. Mercy Hospital Medical Center, 490 N.W.2d 856 (Iowa App.1992)(where patient fell while in x-ray room expert testimony was not required on hospital’s negligence);  Dimora v. Cleveland Clinic Found., 114 Ohio App.3d 711, 718, 683 N.E.2d 1175 (8th Dist.1996) (patient fell after student nurse left her unattended at her walker while opening a door);  German v. Nichopoulos577 S.W.2d 197, 202-03 (Tenn. Ct. App. 1978) overruled on other grounds by Seavers9 S.W.3d at 96; Green v. Lilliewood, 272 S.C. 186, 249 S.E.2d 910 (1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge); Hickman v. Sexton Dental Clinic, P.A., 295 S.C. 164, 367 S.E.2d 453 (Ct. App. 1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth); Hubbard v. Reed, 168 N.J. 387, 395, 774 A.2d 495, 500 (2001) (case in which the defendant dentist allegedly pulled the wrong tooth); LaCourse v. Flower Hosp., 6th Dist. Lucas No. L–02–1004, 2002-Ohio-3816, 2002 WL 1729897, ¶ 16;) McConkey v. State128 S.W.3d 656, 660 (Tenn. Ct. App. 2003); Murphy v. Schwartz739 S.W.2d 777, 778 (Tenn. Ct. App. 1986); Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir.2003) (personnel failed to call treating physician to determine how often insulin was to be administered); Newhall v. Central Vermont Hospital, Inc., 133 Vt. 572, 349 A.2d 890 (1975)(expert testimony not required where nurse failed to respond to sedated patient’s call and patient got out of bed and fell);  Palanque v. Lambert-Woolley, 168 N.J. 398, 400, 774 A.2d 501 (2001)(misread the specimen identification numbers as plaintiff’s test result numbers and mistakenly determined that plaintiff had an ectopic pregnancy) Robbins v. Jewish Hospital of St. Louis, 663 S.W.2d 341 (Mo.App.1983) (expert testimony not required where bed rails not raised and brain damaged patient fell out); Rule v. Cheeseman, Executrix, 181 Kan. 957, 963, 317 P.2d 472 (1957) (all four cases applying exception when sponge was left in patient after surgery); Schraffenberger v. Persinger, Malik & Haaf, M.D.’s, Inc., 114 Ohio App.3d 263, 267, 683 N.E.2d 60 (1st Dist.1996) (patient alleged that doctor negligently and erroneously informed him that he was sterile following a vasectomy); Schwartz v. Abay, 26 Kan.App.2d 707, 995 P.2d 878 (1999) (applying exception where surgeon removed 60% of the wrong vertebral disc); Seavers v. Methodist Med. Ctr. of Oak Ridge9 S.W.3d 86, 92 (Tenn. 1999); Thomas v. Dootson, 377 S.C. 293, 659 S.E.2d 253 (Ct. App. 2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen); Veesart v. Community Hospital Asso., 211 Kan. 896, 508 P.2d 506 (1973) (expert evidence not required where elderly patient fell while going to bathroom); Walker v. Southeast Alabama Medical Center, 545 So.2d 769 (Ala.1989)(where bed rail left down contrary to doctor’s order and patient fell, no expert testimony required on standard of care);  Washington Hospital Center v. Martin, 454 A.2d 306 (D.C.App.1982)(mere fact that patient falls in hospital will not normally require expert testimony on hospital’s negligence).
​Medical malpractice litigation is expensive enough for a citizen to pursue. Common sense propositions should not require expert testimony. The underlying purpose of Indiana’s Rules of Evidence is set forth in Rule 102:

Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

The implementation of the “common knowledge exception” “eliminates unjustifiable expense” so that the “truth may be ascertained” and “proceedings justly determined.”  Trial Rule 1 of Indiana’s Rules of Trial Procedure echoes similar sentiments noting:

They shall be construed to secure the just, speedy and inexpensive determination of every action.

​The costs of medical malpractice cases are such that only a handful of cases are economically feasible to pursue, thereby closing the court house doors to most claims. Gary T. Schwartz, Medical Malpractice, Tort, Contract, and Managed Care, 1998 U. ILL. L. REV. 885, 895 (discussing how non-“large-damage” medical malpractice claims are impractical); Jeffrey J. Parker, Comment, Contingent Expert Witness Fees: Access and Legitimacy, 64 S. CAL. L. REV. 1363, 1369 (1991) (“[F]ees to employ necessary expert witnesses constitute substantial litigation expenses.”).

So remember that the “common knowledge exception” can be uncommonly economical and effective.

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