UIC School of Law UIC Law Open Access Repository UIC Law Open Access Faculty Scholarship 1-1-2011 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 (2011) Marc Ginsberg The John Marshall Law School, [email protected] Follow this and additional works at: https://repository.law.uic.edu/facpubs Part of the Evidence Commons, Health Law and Policy Commons, Litigation Commons, Medical Jurisprudence Commons, and the Torts Commons Recommended Citation Marc Ginsberg, 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 (2011) https://repository.law.uic.edu/facpubs/352 This Article is brought to you for free and open access by UIC Law Open Access Repository. It has been accepted for inclusion in UIC Law Open Access Faculty Scholarship by an authorized administrator of UIC Law Open Access Repository. For more information, please contact [email protected]. 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? Marc D. Ginsberg* I. IN TRODUCTION ............................................................................................ 368 II. RULES OF EVIDENCE INVOLVED .................................................................. 370 111. PHYSICIAN REPUTATION ............................................................................. 373 IV. PRIOR LAWSUITS AGAINST THE PHYSICIAN DEFENDANT ........................... 378 V. EVIDENCE OF PHYSICIAN TREATMENT OF OTHER PATIENTS- IN AD M ISSIB LE ............................................................................................. 380 VI. EVIDENCE OF PHYSICIAN TREATMENT OF OTHER PATIENTS- A D M ISSIB LE ................................................................................................ 383 VII. OTHER CATEGORIES OF PHYSICIAN CONDUCT EVIDENCE .......................... 389 A. Alteration of Medical Records ............................................................. 389 B. PoorPerformance in Medical Education and Training ...................... 390 C. Defendant Physician'sFailure to Achieve Board Certification........... 390 D. Defendant Physician'sMedical License Suspension or Other D iscipline ............................................................................................. 392 E. Defendant Physician'sHospital PrivilegesSuspension ....................... 395 VIII. PH YSICIAN H ABIT ...................................................................................... 395 IX. CROSS-EXAMINATION OF MEDICAL EXPERT WITNESSES ........................... 397 A. Medical License Revocation or Limitation .......................................... 398 B. Failure to Achieve Board Certification................................................ 399 C. Termination/Suspensionof Staff Privileges......................................... 399 D. Negative Performance Evaluation ....................................................... 400 E. PriorLawsuits Against the Expert ....................................................... 400 1. Adm issible Evidence ...................................................................... 400 2. Inadm issible Evidence ................................................................... 401 *Assistant Professor, The John Marshall Law School (Chicago). Contact via email at [email protected]. B.A., University of Illinois-Chicago; M.A., Indiana University; J.D., The John Marshall Law School; LL.M. (Health Law) DePaul University College of Law. The author thanks his wife, Janice Ginsberg, for her inspiration and support. The author also thanks his former research assistants Jennifer Barton and Mark Swantek, and his current research assistant Levon Barsoumian, for their cite checking and proofreading efforts. 367 SOUTH CAROLINA LAW REVIEW [VOL. 63: 367 X . C ONCLUSION ...............................................................................................402 I. INTRODUCTION "The likelihood of being sued for malpractice is now so great that the practicing physician must recognize that it constitutes a definite occupational hazard."' There are many patients injured or who die as a result of medical negligence. 2 The American Medical Association 3 (AMA) has reported results of a physician survey, revealing that more than 40% of the physicians surveyed4 filed against them at some point in their career.", "had a medical liability claim 5 Certainly, some of these medical negligence claims are without merit. However, the meritorious claims implicate physician carelessness-the failure to comply with the applicable standard of care. Even if medical negligence claims are predictable, they are not the only professional problems facing physicians. Physicians admit patients to hospitals 1. Louis J. Regan, Malpractice,An OccupationalHazard, 156 JAMA 1317 (1954). Of course, it is most interesting that this "hazard" was recognized or predicted almost sixty years ago. 2. See Neil Vidmar, Medical Malpractice Lawsuits: An Essay on Patient Interests, the Contingency Fee System, Juries, and Social Policy, 38 LOY. L.A. L. REV. 1217, 1220-21 (2005) (citing PAUL C. WEILER ET AL., A MEASURE OF MALPRACTICE: MEDICAL INJURY, MALPRACTICE LITIGATION, AND PATIENT COMPENSATION 44, 44 tbl. 3.2., 12-4-29 (1993)) (discussing the results of a Harvard study of medical negligence). 3. Our Mission, AMA, http://www.ama-assn.org/ama/pub/about-ama/our-mission.page (last visited Nov. 13, 2011). The AMA is an influential voluntary medical association. Its mission is "[t]o promote the art and science of medicine and the betterment of public health." Id. For historical and organizational background, see Note, The American Medical Association: Power, Purpose, and Politics in Organized Medicine, 63 YALE L.J. 938 (1954). 4. Carol K. Kane, Policy Research Perspectives: Medical Liability Claim Frequency. A 2007-2008 Snapshot of Physicians, AMA, 2 (Aug. 2010), http://www.ama-assn.org/amal/pub/ upload/mm/363/prp-201001-claim-freq.pdf. 5. See THOMAS H. COHEN & KRISTEN A. HUGHES, U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, SPECIAL REPORT: MEDICAL MALPRACTICE CLAIMS IN SEVEN STATES, 2000- 2004 NCJ 216339, at 1 (2007), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mmicss04.pdf (suggesting that a large percentage of medical negligence claims are closed without payment to claimants). 6. See DAN B. DOBBS, THE LAW OF TORTS 631-32 (2000) (footnotes omitted) (noting that the standard of care contemplates "physicians acting within the ambit of their professional work [exercising] the skill, knowledge, and care normally possessed and exercised by other members of their profession of the same school of practice in the relevant medical community" (citing Keebler v. Winfield Carraway Hosp., 531 So. 2d 841, 845 (Ala. 1988) (defining reasonable skill); Self v. Exec. Comm. of Ga.Baptist Convention of Ga. Inc., 266 S.E.2d 168, 168-69 (Ga. 1980) (defining what constitutes professional negligence); Purtill v. Hess, 489 N.E.2d 867, 872 (I11.1986) (same); RESTATEMENT (SECOND) OF TORTS § 299A cmt. e (1965) (same))). 2011] GOOD MEDICINE/BAD MEDICINE AND THE LAW OF EVIDENCE 369 and practice medicine on hospital premises through grants of staff privileges.7 Physician misconduct orsperformance problems can lead to privilege suspension, limitation, or revocation. Physicians also may suffer disciplinary problems. Disciplinary action is taken by "regulatory bodies that investigate and adjudicate alleged violations of law, ethics, or practice standards." 9 More than one study has identified multiple transgressions leading to discipline, including negligence/incompetence, inappropriate prescribing, alcohol/drug use, sexual misconduct, unlicensed activity, fraud, mental/physical illness, and misrepresentation of credentials. 10 Assuming the truth of the lawsuit as an "occupational hazard" phenomenon, medical negligence litigation is common enough that a discussion of certain evidentiary issues is worthwhile. 1 These issues relate to proof of physician character and reputation,' 2 propensity to practice medicine in a specific exemplary or substandard fashion, 13 prior lawsuits,' 4 treatment of other patients,' and prior restrictions on privileges and licensing. 16 Is there a place for 7. See generally Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1307 (11th Cir. 2010) ("Medical staff privileges allow a physician both to treat patients at the privilege-granting hospital and to receive patient referrals from that hospital."); BARRY R. FURROW ET AL., HEALTH LAW 97- 98 (2d ed. 2000) (footnote omitted) ("A physician or other health care professional may admit or treat patients in a particular hospital only if the practitioner has admitting or clinical privileges at that hospital."); Andrew K. Dolan & Richard S. Ralston, Hospital Admitting Privileges and the Sherman Act, 18 Hous. L. REv. 707, 709-12 (1981) (explaining the nuances of hospital privileges). 8. See Jimenez, 596 F.3d at 1307 (recounting the suspension of medical staff privileges following complaints that the physician "failed to promptly respond to emergency-room calls, failed to timely make rounds to see patients, and performed inappropriate operations"); Dolan & Ralston, supra note 7, at 712 (discussing revocation of privileges). 9. James Morrison & Peter Wickersham, Physicians Disciplined by