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Massachusetts Decision Shows Effects of Invoked Constitutional Privilege Applied to Personal Injury Action

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.

While a trial court can determine the invocation is invalid, the appellate court pointed out the privilege is to be liberally construed in favor of the one claiming it. To compel a person to testify, it must be clear the witness cannot possibly incriminate themselves. The testimony does not have to be a direct admission to a crime, but any link in the chain of evidence that could be used to prosecute the witness for either a federal or a state crime. On the other hand, the witness is obliged to show there is a real risk answers to questions could indicate involvement in illegal conduct, rather than imagined or remote possibilities of prosecution.

The appellate court ultimately concluded they did not need to assess whether or not the invocation of the privilege was valid. The appellate court ruled the deposition testimony was independently admissible under Massachusetts’ Rule of Civil Procedure 32(a)(3)(D). This rule allows all or any part of a deposition that is otherwise admissible through the rules of evidence to be used, if the party wanting to use the testimony was unable to procure attendance through subpoena.

At trial, the other doctor was subpoenaed but did not appear due to illness. The Appeals Court found this was not through the failure of the co-defendant. The appellate court determined the plaintiff’s counsel had the same opportunity to cross examine the other anesthesiologist. The Appeals Court did not believe there were any other steps for the trial court to take and upheld the trial court’s choice to allow the deposition testimony. The judgment was affirmed.

Serious injuries and wrongful death often stem from complicated situations. The Massachusetts personal injury attorneys at Karsner & Meehan have the knowledge and trial experience you need at your side to focus on the strategies that lead to successful results. Call our office today at 508.822.6600.

More Blog Posts:

Massachusetts Appeals Court Analyzes Spoliation of Evidence in Negligence Action Involving Severe Injuries, December 28, 2017, Massachusetts Injury Lawyers Blog

Massachusetts Workers’ Compensation Reviewing Board Affirms Temporary Total Incapacity Benefits Award to Registered Nurse, November 16, 2017, Massachusetts Injury Lawyers Blog