Use of Disciplinary Action in Med-Mal Litigation Prohibited
By Joseph D. Nohavicka | July 22, 2016
Joseph D. Nohavicka of Pardalis & Nohavicka discusses 'Mazella v. Beals', in which the court determined that it was improper to admit a consent agreement between the defendant doctor and the Office of Professional Medical Conduct, which contained evidence of the doctor's negligent treatment of 12 unrelated patients.
When the Court of Appeals hands down a decision providing guidance for navigating New York's catch-as-catch-can rules of evidence, litigators in New York take pause. High court pronouncements on civil trial objections are uncommon because of the restrictions on the scope of review available in the Court of Appeals and the fact that the trial judge's evidentiary rulings will not be disturbed on appeal unless the ruling is determined to be an abuse of discretion.1
Recently addressing "prior bad act" impeachment evidence in the context of a medical malpractice and wrongful death action, the court in Mazella v. Beals, 2016 NY Slip Op 05182 (decided on June 30, 2016), determined that it was improper to admit a consent agreement between the defendant doctor and the Office of Professional Medical Conduct (OPMC),2 which contained evidence of the doctor's negligent treatment of 12 unrelated patients.3
At trial, the character of a witness can be impeached through conviction of a crime (CPLR 4513), past untruthfulness (CPLR 4514), and other prior bad acts.4 Successful impeachment renders the witness unworthy of belief. Bad act evidence can be used for other purposes such as to prove a fact that is in issue such as motive, plan, intent, or knowledge.5
Understanding the trial dynamics of bad act evidence is important because studies and empirical evidence conclude that jurors are highly persuaded by evidence of immoral conduct.6 For purposes of trial, a prior bad act is any immoral,7 vicious or criminal act that will have a tendency to impeach a witness' credibility.
As an illustration, an investment advisor is sued for fraud because he swindled an elderly client out of his retirement money. At trial the client wants to show that the investment advisor owed money to other people and always failed to pay these people back even when he had money to do so.
A general rule of evidence, applicable in both civil and criminal cases, is that it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion.8 Therefore, the other bad acts of the investment advisor constitute improper evidence that is being offered to show that he is a bad character who has the propensity to do bad things. That is highly prejudicial evidence and is not relevant to show that it was more or less likely that the investment advisor committed fraud.
But, if the investment advisor takes the stand, the court has discretion to allow the bad act evidence to be used in the cross-examination of the advisor if it is shown that they were prior bad acts "probative of the truthfulness or untruthfulness" of the witness. The trial court judge has discretion to allow cross-examination of a witness for the purpose of impeaching credibility as to "prior bad acts," as long as there is a good-faith basis for such questions.9 The Court of Appeals in Badr v. Hogan, noted that "[w]hile the nature and extent of such cross-examination is discretionary with the trial court…, the inquiry must have some tendency to show moral turpitude (corrupt mind)10 to be relevant on the credibility issue."11
Bad Act Balancing Test
To assess whether the bad act testimony will be admissible at trial it must be determined whether the acts will bear directly on the witness' credibility or reveal a disposition on his part "to place the advancement of his individual self-interest ahead of principle or of the interests of society."12
Then the court must determine whether the evidence will, if admitted, will cause undue prejudice "turning some trials into a distracting series of mini-trials" on the unrelated prior bad acts.13
If the court permits the bad act testimony in a jury trial, a limiting instruction must be given by the court. For example, (using the investment advisor illustration above):
You have heard evidence that the defendant on a previous occasion did not pay money back to other individuals not related to this case. You may consider that evidence only to help you decide whether to believe the advisor's testimony and how much weight to give it. That evidence does not mean that the advisor engaged in the fraud alleged here, and you must not use that evidence as any proof of the wrongs alleged in this case.14
The facts of Mazella set forth here are truncated and contoured for a discussion only on the subject of the bad-act evidentiary issue.
The patient had been prescribed depression medication for 10 years by a doctor who rarely saw him. One day, after the 10-year period, the patient's mental condition worsened. His family contacted the doctor who was on vacation and unable to see him in person. Nevertheless, the doctor changed his prescription over the phone and said that he would see the patient after his trip.
The patient took the new medicine but it made him worse. The family, not wanting to wait because the patient was talking about suicide, sought immediate emergency treatment elsewhere.
When the doctor returned from his trip to Cape Cod he finally saw his patient with his family. But an argument developed over the fact that the patient sought treatment elsewhere. The backdrop, tone and cause of the argument were in dispute, but the outcome was the same: It was decided that the doctor would no longer be treating him. The patient then went under the care of another mental health care provider. Sadly, a short time later, the patient committed suicide. His family then sued the first doctor for medical malpractice.
At trial the doctor admitted to writing the prescriptions without seeing his patient but took the position that the blame for suicide should be placed on the new doctors because his "bad act" was not the actual cause of the suicide. But (and to end the suspense), the jury found the first doctor fully responsible, and the family was awarded a substantial sum.
During cross-examination at trial, the doctor admitted that he had failed to properly monitor his patient while he was on medication. The plaintiff's attorney then asked whether that failure constituted medical malpractice. Ignoring the fact that the question called for a legal conclusion, the trial judge over the objection of the doctor's attorney allowed the question. The doctor then answered that it was not malpractice. The court then permitted plaintiff's attorney to introduce the disciplinary action Consent Order in evidence and to use it to impeach the doctor.
The doctor appealed to the Appellate Division on a number of theories. The Fourth Department affirmed the trial court's rulings, (with one justice dissenting).15
Justice Nancy E. Smith,16 however, in the dissenting opinion concluded that "defendant was deprived of a fair trial by an evidentiary error, i.e., the admission in evidence of a consent agreement that defendant had signed with the Office of Professional Medical Conduct (OPMC), and that such error undoubtedly contributed to the legal error of the jury's determination of defendant's liability."17
Justice Smith also noted that the trial court should have sustained the objection to plaintiff's attorney's question that "called for defendant to admit that he had committed medical malpractice with respect to his treatment of [his patient,]" in light of the fact that the doctor "did not admit to either medical malpractice or all the elements of a claim of medical malpractice by signing the consent agreement[.]"
The Court of Appeals granted the defendant doctor leave to appeal,18 and reversed, concluding that "although the evidence was sufficient to support the verdict, the trial court committed reversible error when it admitted the Consent Order and permitted defendant to be questioned regarding its contents." The court noted that "the Consent Order was neither probative of defendant's negligence or the question of proximate cause[,]" and that "any possible relevance of the Consent Order's contents was outweighed by the obvious undue prejudice of his repeated violations of accepted medical standards."
The general rule that it is improper to prove that a person did an act on a particular occasion by showing that he did a similar act on a different, unrelated occasion,19 remains unchanged by the holding of Mazella.
However, there is a trilogy of lower court case law dealing specifically with administrative findings of bad acts perpetrated by a defendant that were unrelated to the plaintiff's case and are now called into question.
In Torres v. Ashmawy, 24 Misc.3d 506 (Sup. Ct. Orange Co. 2009), a medical malpractice action, the court granted the defendant doctor's motion for an order precluding the introduction at trial of evidence or references to administrative proceedings of the New York State Board for Professional Medical Conduct with respect to gross negligence, gross incompetence, negligence, incompetence, failure to keep adequate patient records, fraudulent practice, conduct which evidences moral unfitness, and the inappropriate delegation of professional responsibilities. The court, however, permitted inquiry, on cross-examination only, into administrative findings of fraudulent practice because it demonstrated an "untruthful bent."
The court relied on the legal principle that, "[w]hether or not the sustained findings of fraudulent practice constitute prior immoral, vicious or criminal conduct bearing on credibility, they may properly be used for impeachment purposes since, at the very least, they demonstrate an untruthful bent or willingness or disposition on Mayer's part to voluntarily place his own self-interest and advancement ahead of principle or the interests of society."
In People v. Morrissey, NYLJ, April 24, 2009, p. 4, col. 3 (Sup. Ct. N.Y. Co.),20 a criminal prosecution against an attorney, in the context of a Sandoval hearing,21 the People were seeking to inquire into the facts of the attorney's disciplinary proceedings where he testified falsely; the substance of the false testimony, and that he was suspended from the practice of law. The People also wanted to inquire about the attorney's involvement in the estates of two elderly individuals who suffered from dementia at the time their wills were executed.
The analysis performed was simple: The determination was made by "weighing the material probative worth of the acts into which the People seek to inquire against the risk of unfair prejudice to the defendant." The court permitted inquiry, on cross-examination only, on wrongfully withdrawn money from a client's escrow account; the breach of fiduciary duty by presenting a letter to his client purporting it to be a routine release, when in fact the letter also approved the $960,000 payment; his false testimony at a disciplinary proceeding; and whether he was then suspended from the practice of law for two years.
Finally, in Cipriano v. Ho, 29 Misc.3d 952 (Sup. Ct. Kings Co. 2010), a medical malpractice case, the Bureau of Professional Medical Conduct of the Department of Health brought charges of professional misconduct against the defendant doctor concerning three patients. The doctor was found guilty of negligence on more than one occasion, but the bureau rejected charges of incompetence on more than one occasion.
The court noted that it "could not give sufficient, if any, probative value to the findings and determinations as to negligence in [the doctor's] treatment of a single patient on more than one occasion." But then, the court "granted the motion to the extent that plaintiff was precluded from using the disciplinary action as evidence-in-chief on her claims of professional negligence, including her claim of lack of informed consent, but plaintiff was permitted to use the disciplinary action to impeach [the doctor's] credibility."
After Mazella, regarding the admissibility of bad act evidence for impeachment purposes, Cipriano v. Ho is no longer on sound doctrinal footing; however, Torres and Morrissey
Professional disciplinary findings of negligent acts that are unrelated to plaintiff's case will not be admissible. Similarly, witnesses who testify falsely about their professional experiential failings will not be immune to impeachment, as was the plight with the attorney in People v. Morrissey.
Bad act evidence is collateral impeachment used to discredit a witness; it is not supposed to prove or disprove a fact that is relevant to the case. When a court allows admission of prior bad acts believing that it has been offered to prove a fact without reference to the witness' character, they will nevertheless have the same effect of reflecting poorly on his character.
To keep the bad act evidence in, where a witness has in fact perpetrated bad acts, the proponent for that evidence is obliged to demonstrate that the evidence is being offered to prove a fact in issue.
To keep the evidence out, the opponent is then obligated to argue that, if admitted, the bad act evidence will taint the jury's perception of the witness' character. It must be established that the bad act evidence is relevant to prove a fact in issue only by consideration of the impermissible inference that witness acted in conformity with his bad character.
The Consent Order at issue in Mazella, in the words of the Court of Appeals, "was nothing more than evidence of unrelated bad acts, the type of propensity evidence that lacks probative value concerning any material factual issue, and has the potential to induce the jury to decide the case based on evidence of defendant's character."
1. See Bernstein v. Bodean, 53 N.Y.2d 520, 529 (1981).
2. The OPMC is part of the New York State Board for Professional Medical Conduct.
3. The Consent Order is athttp://w3.health.state.ny.
4. See Steven Lubet, "Understanding Impeachment," 15 AM. J. TRIAL ADVOC. 483, 485 (1992).
5. See, e.g., Lewis v. Triborough Bridge and Tunnel Authority, 2001 WL 21256 (S.D.N.Y. Jan. 9, 2001) (PBA tended to prove whether or not the employer took prompt remedial action.
6. See David P. Leonard, "Appellate Review of Evidentiary Rulings," 70 N.C. L.REV. 1155,1201 (1992).
7. See Julia Simon-Kerr, "Moral Turpitude," 2012 Utah L. Rev. 1001, 1061 fn. 429 [Available at:http://works.bepress.com/
8. Matter of Brandon, 55 N.Y.2d 206, 210-211 (1982).
9. Badr v. Hogan, 75 N.Y.2d 629, 555 N.Y.S.2d 249 (1990).
10. Supra, n. 10.
12. People v. Walker, 83 N.Y.2d 455, 461 (1994).
13. Maraziti v. Weber, 185 Misc 2d 624, 626 (Sup Ct., Dutchess Co. 2000).
14. Adapted from Pattern Jury Instructions (3d Cir.): [http://www.ca3.uscourts.gov/
15. 122 A.D.3d 1358 (4th Dept. 2014).
17. Id. n. 5 at 1363.
18. 25 N.Y.3d 901 (2015).
19. Matter of Brandon, 55 N.Y.2d 206, 210-211 (1982).
20. [Posted at http://nylawyer.nylj.com/
21. People v. Sandoval, 34 NY2d 371 (1974).