The Court of Appeals recently published Woolum v. Hillman, a medical malpractice case arising from the death of Hillman’s unborn child.  One of the more interesting issues on appeal was the allowance by the trial judge of evidence that an expert, Dr. Butcher, testifying on behalf of Dr. Woolum had the same malpractice carrier as the defendant.  Woolum argued such evidence was irrelevant and highly prejudicial and pointed to established case law in support.

However, the trial judge noted five reasons why evidence rule 411’s prohibition on the mention of liability insurance did not apply. They included:

(1) Dr. Butcher unequivocally stated in his deposition that he is of the belief and opinion that malpractice cases result in, and have a direct link to, rate increases;

(2) Dr. Butcher left one state because he believed there was a collusion between judges and lawyers in malpractice cases;

(3) Dr. Butcher’s comments were so severe during his deposition that defense counsel felt the need to rein him in and caution him;

(4) Dr. Butcher has established a general hostility to medical negligence cases;

(5) Dr. Woolum and Dr. Butcher have more than simply the casual connection of having the same insurance company, as they had worked side by side for 20 years in the same community hospital.

The Court of Appeals ruled that the evidence was being used to show Dr. Butcher’s “extreme prejudice towards malpractice cases.” The court went further; “Ordinarily, the extreme prejudicial effect of such testimony would outweigh the probative value, but Dr. Butcher’s hostility to malpractice cases is extreme and combined with his personal relationship to Dr. Woolum, provides a sufficient basis for the trial court to find that the testimony is admissible.”

The dissent noted:

Dr. Butcher declared under oath that his insurance premiums would not be directly affected by his testimony on behalf of Dr. Woolum. That is, his cost of insurance would neither be increased nor decreased. This evidence is unrebutted. Consequently, the mere coincidence of being covered by the same insurance company does not indicate sufficient bias or prejudice to affect credibility. Any probative value of admitting evidence of insurance coverage is substantially outweighed by the likely predilection to find liability without fault.

Editor’s Note: The dissent makes a very valid point.  That Dr. Butcher is biased towards other doctors in medical malpractice cases is obvious.  That Dr. Butcher is hostile towards claims of medical malpractice is too.  However, that Dr. Butcher shares the same medical malpractice carrier as the defendant is completely irrelevant to show bias in light of Dr. Butcher’s direct testimony that he did not think that his rates would be effected by the claim against Dr. Woolum.  The fact they share the same carrier does not show bias in this particular instance.

The case also has other interesting discussions on issues found in medical malpractice cases, making it worth reading.