Multiple issues in medical negligence case re: specialists standard of care, mention of health insurance not violate KRE 411, and production of documents prepared by doc to testify: BARKMAN V. OVERSTREET, M.D. (COA 4/11/2008)

MEDICAL NEGLIGENCE: Standard of care is based upon the physician’s specialty of practice.
MISTRIAL MOTION:  Mention of health insurance as opposed to liability insurance as prohibited by KRE 411 is not grounds for mistrial
EVIDENCE:  Document prepared by expert witness but not read or relied upon by him to testify is not to be produced to counsel on grounds of past recollection recorded or present memory refreshed
DATE RENDERED: 04/11/2008

The patient suffered permanent paralysis of all four limbs after an automobile crash and brought a claim for medical malpractice against her treating internal medicine doctor who treated her at the hospital. The jury returned a verdict in favor of the physician, and the patient/Barkman argued on appeal that the trial court used the wrong standard of care in the jury instructions, erred in not granting a mistrial when Overstreet (the doctor) mentioned insurance during his testimony and erred when it denied Barkman’s request to produce a document prepared by Overstreet in anticipation of litigation. Finding no error, the COA affirmed.

With regard to the standard of care, the COA stated physician had a duty, in care and treatment of patient, to exercise that degree of care and skill expected of a reasonable and prudent internal-medicine physician acting under the same or similar circumstances rejecting the proposed instruction which would have used language regarding emergency care (eg., "exercise that degree of care and skill expected of a reasonably competent physician specializing in the care and treatment of emergency patients acting under similar circumstances"). Relying upon SCOKY precedent, the COA stated “[i]t is our conclusion that the jury should be instructed that the defendant was under a duty to use that degree of care and skill which is expected of a reasonably competent practioner [sic] in the same class to which he belongs, acting in the same or similar circumstances.”

"Insurance" was mentioned at trial by the defendant doctor and the trial court overruled the motion for mistrial and refused to give an admonitory instruction. The exchange was:

Barkman’s attorney: OK, so you are saying that you just made up this loss of consciousness?

Dr. Overstreet: I didn’t make it up. I didn’t make it up. But, uh, you know, the insurance companies and you guys are the ones that force us into these pigeon holes.

Under KRE 411 "Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."

The COA then parsed the words used by Dr. Overstreet and noted the precepts behind KRE 411 – "First, the rule, obviously, applies only to liability insurance. Second, the rule only prohibits liability insurance evidence when it is offered regarding the issue of whether or not a party acted negligently or wrongly. Third, the rule does not prohibit evidence about liability insurance if it is offered for other purposes. Consequently, KRE 411 only applies to Overstreet’s testimony if he was referring to liability insurance and if he was referring to such insurance to comment upon whether a party to the litigation had somehow acted negligently." "Placing Overstreet’s remark into its proper context, it becomes apparent that Overstreet was referring to health insurance not liability insurance. Because KRE 411 applies only to liability insurance, we conclude the trial court did not abuse its discretion when it denied Barkman’s motion for a mistrial and her request for an admonition."

At trial, the plaintiff called the treating Dr. Overstreet to testify. Overstreet had several documents with him to refresh his memory, to include a timeline prepared by him. Plaintiff’s counsel examined this timeline and a copy was attached to the record to be reviewed in camera by the court. No objection was made until 8 days later, when plaintiff’s counsel wished to examine the timeline document. The COA then brushed aside the different positions of counsel regarding the document as past recollection recorded versus present memory refreshed by stating "neither concept applies to this present case. After reviewing the record of Overstreet’s testimony, we find that when Overstreet initially took the stand, he had the document in question with him. However, he did not review it while on the stand nor did he refer to it during his testimony. In short, Overstreet did not use the document at trial. Accordingly, Barkman was not entitled to review the document under the concept of present memory refreshed or past recollection recorded."

Digested by Michael Stevens

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