Good Medicine/Bad Medicine and the Law of Evidence: Is There a Role for Proof of Character, Propensity, Prior Bad Conduct in Medical Negligence Litigation?

Abstract

There are many patients injured or who die as a result of medical negligence. The American Medical Association has reported results of a physician survey, revealing that more than forty percent of the physicians surveyed "had a medical liability claim filed against them at some point in their careers." 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 and practice medicine on hospital premises through grants of staff privileges. Physician misconduct or performance 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 … ." More than one study have identified multiple transgressions leading to discipline: negligence/incompetence, inappropriate prescribing, alcohol/drug use, sexual misconduct, unlicensed activity, fraud, mental/physical illness, misrepresentation of credentials. 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. These issues relate to proof of physician character and reputation, propensity to practice medicine in a specific exemplary or substandard fashion, prior lawsuits, treatment of other patients and prior restrictions on privileges and licensing. Is there a place for proof of these matters in a medical negligence suit when the focus of the litigation is whether the defendant physician complied with the applicable standard of care in treating a particular patient at a particular time?

Keywords: Evidence, Medicine, Character, Propensity, Habit, Bad Conduct, Torts, Professional Negligence