When we consult with new clients, sometimes they tell us that they know "this doctor has done this before" and, therefore, its going to be "easy" to prove it here.
The Supreme Court of Virginia has ruled that a jury does not get to consider allegations of prior bad acts in a malpractice case.
Summary of the case:
In this case, the plaintiff argued that her doctor breached the standard of care she deserved during an abdominal hysterectomy. The plaintiff alleged that the Winchester Medical Center, Inc knew or should have known that her doctor should not have been granted privileges to practice medicine at the hospital prior to the surgery and that he should not have been permitted to perform the surgery on her. She also argued that Winchester Medical Center breached the standard of care owed to her because it failed to adequately supervise her doctor.
In supporting her case, the plaintiff tried to cross-examine the doctor about "prior bad acts" he has committed, including whether or not he had consented to the State Board of Medicine's findings of 19 prior acts of improper conduct in the hospital. The circuit court refused to permit the plaintiff to cross-examine her doctor on these subjects, so the jury did not consider this evidence. At the conclusion of the trial, the jury returned a verdict in favor of the doctor.
These are excerpts from the case. As always, do your own research.
Stottlemyer v. Ghramm, 268 Va. 7, 597 S.E.2d 191 (2004)
IN THE SUPREME COURT OF VIRGINIA
JOHN W. GHRAMM, M.D., ET AL.
Record No. 031613
Decided: June 10, 2004
Present: All the Justices
CHIEF JUSTICE HASSELL delivered the opinion of the Court.
In this appeal of a judgment entered in favor of health care providers who were defendants in a medical negligence action, we consider whether the circuit court erred by refusing to permit the plaintiff to cross-examine the defendant physician regarding his alleged prior acts of negligence and misconduct.
Plaintiff, Carolyn Stottlemyer, filed her motion for judgment against John W. Ghramm, M.D., and Winchester Medical Center, Inc. She alleged in her motion for judgment that both defendants breached the standard of care owed to her during the performance of an abdominal hysterectomy at a hospital known as the Winchester Medical Center. Plaintiff alleged that the Winchester Medical Center, Inc., which operates the hospital, knew or should have known that Dr. Ghramm should not have been granted privileges to practice medicine at the hospital prior to the surgery and that he should not have been permitted to perform the surgery on plaintiff. Stottlemyer also alleged that Winchester Medical Center breached the standard of care owed to her because it failed to adequately supervise Dr. Ghramm.
Plaintiff attempted to cross-examine Dr. Ghramm about certain alleged “prior bad acts” he had committed. Plaintiff sought to cross-examine Dr. Ghramm about the following: whether Dr. Ghramm had previously made improper alterations of medical records; whether the State Board of Medicine had made a finding that Dr. Ghramm had modified medical records; whether Dr. Ghramm had ever abandoned a patient; whether Dr. Ghramm had admitted to the State Board of Medicine that he had provided care beneath the standards required by a hospital; whether the State Board of Medicine had reprimanded Dr. Ghramm for improper conduct; whether a hospital had suspended Dr. Ghramm's medical staff privileges; whether a hospital had granted Dr. Ghramm medical staff privileges conditioned upon his submission to supervision by other physicians; whether Dr. Ghramm had ever lied about prior reprimands or suspensions on his applications for hospital medical staff privileges; whether a psychiatrist made a finding that Dr. Ghramm was not fit to practice medicine in a hospital setting; whether a hospital had required Dr. Ghramm to receive psychiatric care and counseling as a condition for the continuation of his medical staff privileges at that hospital; and whether Dr. Ghramm had consented to the State Board of Medicine's findings of 19 prior acts of improper conduct in the hospital.
Plaintiff made an evidentiary proffer in support of these assertions. The circuit court refused to permit plaintiff to cross-examine Dr. Ghramm on these subjects and, thus, the jury did not consider this evidence. At the conclusion of the trial, the jury returned a verdict in favor of Dr. Ghramm. The circuit court entered an order confirming the verdict and dismissed plaintiff's claims for negligent credentialing against Dr. Ghramm and the hospital. Plaintiff appeals.
Plaintiff argues that the right to cross-examine a witness is “fundamental to jurisprudence” and that she was deprived of this right during her trial. Continuing, she contends that she was entitled to cross-examine the defendant about his alleged prior acts of negligence and misconduct that we have summarized. Plaintiff asserts that she was entitled to cross-examine him about his alleged prior bad acts to impeach his credibility. She also claims that the circuit court's refusal to permit her to cross-examine Dr. Ghramm on these subjects denied her the right to cross-examination. We disagree.
In this Commonwealth, the rule is well established that a litigant may not cross-examine a witness about collateral independent facts irrelevant to the issues before the trier of fact. Clark v. Commonwealth, 202 Va. 787, 789, 120 S.E.2d 270, 272 (1961); Allen v. Commonwealth, 122 Va. 834, 841, 94 S.E. 783, 785 (1918). We have [Page 12] stated the following principles that are pertinent to our resolution of this appeal:
“It is an elementary rule that the evidence must be confined to the point in issue, and hence evidence of collateral facts, from which no fair inferences can be drawn tending to throw light upon the fact under investigation, is excluded, the reason being . . . that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice and mislead them . . .
Applying the aforementioned principles, we hold that the circuit court did not err by denying plaintiff's attempts to cross-examine Dr. Ghramm about his alleged prior acts of misconduct and negligence relating to his former patients. The subjects of testimony upon which the plaintiff sought to cross-examine Dr. Ghramm were collateral, and such testimony would have certainly injected non-probative prejudicial evidence before the jury. This collateral evidence would have distracted the jurors from the issues of Dr. Ghramm's alleged negligence, and such evidence would have excited prejudice and misled the jurors. Even though a plaintiff has a right to cross-examine a defendant on relevant subjects of inquiry, that right does not permit the plaintiff to cross-examine that defendant on collateral matters.
Plaintiff also argues that the circuit court erred because it denied her an opportunity to cross-examine Dr. Ghramm and demonstrate “his pattern and history of substandard care.” Plaintiff contends that she should have been entitled to cross-examine Dr. Ghramm about [Page 13] the State Board of Medicine's findings of “his poor performance in a hospital setting” and the Board's reprimand. Plaintiff asserts that Ghramm's alleged “prior bad acts” were relevant to the proof of allegations in plaintiff's cause of action and, therefore, such evidence should have been admitted at trial. We disagree.
Generally, specific acts of bad conduct or prior acts of negligence are not relevant or admissible to show that a defendant was negligent and that such negligence was a proximate cause of a plaintiff's injuries. Evidence that a defendant was negligent on a prior occasion simply has no relevance or bearing upon whether the defendant was negligent during the occasion that is the subject of the litigation. Cherry v. D.S. Nash Construction Co., 252 Va. 241, 244, 475 S.E.2d 794, 796 (1996).
In this case, the issues before the jury were whether Dr. Ghramm performed an abdominal hysterectomy upon the plaintiff in accordance with the applicable standards of care and whether Dr. Ghramm obtained her informed consent for that procedure. Dr. Ghramm's alleged prior bad acts and his alleged prior acts of negligence related to other patients simply had no relevance to the issues that were before the jury for its consideration. Therefore, we hold that the circuit court properly refused to permit the plaintiff to cross-examine Dr. Ghramm about these alleged bad acts. Additionally, we note that Dr. Ghramm's alleged prior bad acts do not constitute evidence of habit or routine practice within the intendment of Code § 8.01-397.1.
In summation, we hold that the circuit court properly limited the scope of plaintiff's cross-examination of Dr. Ghramm because plaintiff did not have a right to cross-examine a witness on collateral matters. The circuit court also properly refused to permit plaintiff to cross-examine Dr. Ghramm about his alleged prior bad acts and alleged acts of negligence against other patients because such testimony was neither relevant nor probative to the issues properly before the jury. In view of our holdings that evidence plaintiff sought to elicit during her cross-examination of Dr. Ghramm was not admissible, we conclude that the circuit court did not abuse its discretion when it bifurcated the trial. We need not consider whether plaintiff had causes of action against Winchester Medical Center for negligent supervision or negligent credentialing because the jury found that Dr. [Page 14] Ghramm was not negligent and, therefore, those issues are moot. Accordingly, we will affirm the judgment of the circuit court.