You do not often see a criminal case intersecting with a Massachusetts personal injury action, but a recent medical malpractice decision issued by the Appeals Court shows how the former affects the latter. The original action was filed by the husband of the decedent, claiming the treating physicians and health care facility caused the death of his wife through their negligent care of her during her knee replacement surgery. Early on, the estate took the deposition of one of the anesthesiologists involved in the injured wife’s care. Soon afterward, this physician had his medical licenses revoked and was indicted for Medicare fraud. He then filed to bifurcate the civil trial and invoked his Fifth Amendment privilege against self-incrimination.
The other defendant anesthesiologist filed a notice of his intention to use parts of the other doctor’s deposition, since he would be unavailable. The anesthesiologist invoking his Constitutional privilege and the health care provider both settled with the estate, leaving the remaining anesthesiologist as the lone defendant. The judge denied the defendant doctor’s motion to use the deposition. At trial, the doctor invoking the privilege did not appear, and the judge allowed parts of the deposed testimony to be read during trial. The court allowed the defendant to read the part of the deposition in which the other doctor admitted his medical license was suspended in three states. The jury returned a verdict in favor of the remaining defendant anesthesiologist.
The Appeals Court noted the trial court relied on the exception to the evidentiary rule that allows hearsay evidence through prior recorded testimony when the witness is unavailable. To determine whether this exception can be applied, the court must determine the declarant is unavailable and evaluate whether the prior recorded statement was given in a proceeding that substantially addressed the same issues in the present proceeding, with similar opportunities for cross-examination. The appellate court agreed with the trial court’s assessment that the other anesthesiologist was unavailable. The Appeals Court determined the doctor unequivocally indicated his intent to assert his constitutional privilege against self-incrimination.