Disciplinary records relevant in liability case

A physician's disciplinary history may have no direct link to a medical liability lawsuit. But plaintiffs can still delve into such discipline to develop their cases, the Nebraska Supreme Court ruled this summer.

Sharon Rankin sued family physician W.K. Stetson, MD, another doctor and a medical clinic in 2004 for allegedly failing to properly diagnose and treat a spinal cord injury sustained from a fall on a patch of ice. The physicians and clinic contended in court papers that they had acted appropriately and said Rankin had delayed following their instructions for physical therapy and other treatment, which likely caused her permanent injuries.

While the case was wending through the legal system, the Nebraska attorney general brought a disciplinary action against Dr. Stetson, based on complaints the physician had engaged in inappropriate sexual touching of patients during non-gynecological exams. While admitting no wrongdoing, Dr. Stetson in May 2008 ultimately waived his right to a hearing, pleaded no contest to the allegations and voluntarily surrendered his license for a minimum of two years, according to court records.

In January, Rankin filed an amended complaint, adding a claim that she did not give informed consent to Dr. Stetson's care because he did not disclose the alleged sexual misconduct and his unfitness to treat her.

Rankin conceded in court documents that Dr. Stetson did not engage in any inappropriate sexual behavior with her. But she claimed the issue was relevant to her case because the physician's "compulsions" likely prevented him from focusing on her properly and treating her injury.

Rankin subsequently notified Dr. Stetson that she intended to subpoena the state Dept. of Health & Human Services, which oversees physician licensing, for records related to the state's investigation of his alleged sexual misconduct. She also asked Dr. Stetson to submit to a second deposition and produce any materials related to the surrender of his license.

Dr. Stetson objected to the requests, arguing that such information was off limits because it was irrelevant and privileged from discovery. But a trial judge allowed Rankin to discover some of the materials.

Dr. Stetson took the matter directly to the Supreme Court, asking justices to override the trial court order.

Doctor not entitled to protections

The high court unanimously declined to do so, however, turning first to whether Dr. Stetson had a right to invoke the privilege protecting certain state investigatory records from discovery in lawsuits. The court's answer was that he did not.

State law generally protects underlying complaints, incident reports and materials generated during disciplinary investigations from disclosure, unless they are revealed as part of a contested hearing. But the court said it was the state that had the right to raise that privilege, not the doctor.

Although the law does not specify whom the privilege was meant to protect, it does "show the Legislature intended to balance the public's need to know about disciplinary actions against health care professionals with the state's need to encourage the reporting of unprofessional conduct," the Aug. 21 opinion stated. "Interpreting the statutes as providing a privilege to the credential holder would not make sense. It would effectively mean that a plaintiff in a malpractice action could never show why a health care professional had lost his or her license, even if the state had disciplined the professional for the very conduct alleged" in the lawsuit.

Moreover, the confidentiality of such disciplinary records has never been absolute, the court added, noting that the law allows for the general nature of the allegations in disciplinary issues, as well as final settlements, for example, to be made public in certain circumstances.

Because Dr. Stetson's discipline did not involve a contested hearing, however, the court denied Rankin access to any underlying patient complaints or other privileged state records prompting the surrender of his license. Nothing prevented her from gathering information generated outside the state's probe, justices said, including deposing Dr. Stetson or others, or having them produce related information.

The court likened the issue to the peer review process.

"The Legislature did not intend the peer review privilege to shield hospitals from all potential liability or to preclude discovery of all hospital records. ... Interpreting the privilege so broadly that hospitals were never held accountable for wrongdoing does not serve the goal of improving the care of patients," the court said. The statutory privilege related to disciplinary records "serves this goal in much the same way ... but like the peer review privilege, [it] does not preclude discovery of information from persons who obtained the information from outside of the privileged investigatory process."

A broad definition of relevance

As for whether the surrender of Dr. Stetson's license was relevant to Rankin's medical liability case, the court found that to be less of an issue in the early phases of the case. That's because relevancy of certain facts at the discovery stage, when issues are not always clearly defined, is interpreted more broadly than is relevancy at trial, justices said.

While some of the information Rankin appeared to be seeking may already be public -- such as the reason Dr. Stetson surrendered his license -- the court said it could not rule out the potential for Rankin to gather additional, related information that could tie into Dr. Stetson's credibility or his medical judgment at the time he treated her. But the high court stressed it was not commenting on whether such information would be admissible at trial.

The ruling creates an avenue for plaintiffs to unfairly bolster what may be a shaky case to begin with, said Omaha, Neb., defense attorney Mark E. Novotny, who represented Dr. Stetson and the other defendants in the liability case appeal.

He said the case progressed for several years without any mention that Dr. Stetson's alleged misconduct had any influence on the negligence claims. Permitting patients to discover such information gives them yet another chance at getting it into trial, where it can unfairly prejudice a jury.

"Once this [disciplinary] information surfaced, it seemed opportunistic by the plaintiff to suddenly say, 'Gee, that's the reason my case happened,' " Novotny said. It's an indication of the unreliability of the case because "there's no indication the facts had anything to do with the civil case until they were massaged in."

Physicians should be able to raise the privilege, he added, "because they are the ones as to whom the information could be very damaging because [reports of potential misconduct] are only complaints and allegations at that stage."

And doctors could be left vulnerable to such broad discovery requests if the state fails to step in and assert its privilege to protect the disciplinary process, said David R. Buntain, a health care lawyer with Cline Williams Wright Johnson & Oldfather LLP in Lincoln, Neb. But, he said, such issues are decided on a case-by-case basis.

If that confidentiality is compromised, however, "it will have a chilling effect on people coming forward with concerns and how willing providers are to cooperate with the investigative process if they think whatever they say is going to end up in someone else's malpractice suit," said Buntain, also legal counsel to the Nebraska Medical Assn. The organization was not involved in the case.

Rankin's attorney was not available for comment by this article's deadline.

A right to know?

To some plaintiff attorneys, the ruling does not go far enough.

Publicly available records often don't tell the whole story, said Michael A. Galpern, a Cherry Hill, N.J., personal injury lawyer with Locks Law Firm.

The case reflects "patients' inability to find out the true history of his or her treating physician. And the fact is, any [disciplinary issue] can have an impact on a physician's ability to practice medicine."

Patients still have to demonstrate some connection between their liability cases and the need for outside disciplinary information, Galpern said. But most courts adhere to a broader interpretation of relevance in the discovery process, which can be anything "reasonably calculated" to lead to the discovery of evidence that could be admissible at trial.

While acknowledging some of the public policy concerns over potentially discouraging reporting, Galpern said the issue is outweighed by patients' rights to know about their physicians. "That right should be supreme, and patients should have full unfettered access to all of this information."