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Many attorneys tend to gravitate toward experts they have used in the past, which should not surprise anyone.  If you have a positive experience with an expert, then you will likely look to use the same expert again in the future when the need arises.  If you have been injured and hire an attorney to represent you, then he or she will decide with you whether the case would benefit from an expert.  This could be a liability expert, a medical expert, or both.

If you have a medical expert who was not a treating physician, it is usually to confirm issues related to the claimed injury.  Among other things, this expert could be asked to form opinions about the extent of the claimed injury, the permanency of the claimed injury, or the causation of the claimed injury.

Sometimes, however, these experts run into problems in their professional careers that could spill over into an unrelated lawsuit.  Recently, a group of physicians were disciplined by the Maryland Board of Physicians.  One of the doctors consented to an Order, which was also a public document, for a fine of $25,000 and probation for a minimum of three years with terms and conditions, including training.  This punishment was a result of findings that he failed to meet the standard of care, failed to keep adequate medical records, and grossly over-utilized health care services.  Whenever this physician has been questioned about his disciplinary action, he refuses to answer the questions.

In Maryland, “[e]xcept by the express stipulation and consent of all parties to a proceeding before the Board, . . . [a]ny order passed by the Board or disciplinary panel is not admissible in evidence.”   Md. Code Ann., Health Occ. (“HO”) Art., § 14-410.  The Order was a consent order and, therefore, “by the express stipulation and consent of all parties.”  This should confirm the admissibility of the Order regarding this physician’s disciplinary action in future lawsuits.

But this is not how the Court of Special Appeals sees it.  In Pepsi Bottling Grp. v. Plummer, 226 Md. App. 460 (2016), the Court held that “the General Assembly did not intend that doctors who have been the target of Board proceedings could be compelled to provide testimonial evidence about the disciplinary proceedings even though all documentary evidence regarding the action of the Board is protected by the privilege in HO § 14-410(a).”  Id. at 478.  The Court further held “that there is no exception to the privilege that permits evidence of an adverse ruling of the Board to be used for cross-examination or impeachment of a physician who is testifying as an expert witness.”  Id. at 480 (emphasis added).

This issue will likely come up in several trial courts in the coming years and will be revisited by our Court of Special Appeals.  There are legitimate arguments that this information is relevant and admissible.  First, this was consent order and it is public record, which seems to fall squarely within the statutory exception.

Furthermore, this consent order relates to the physician’s credentials.  The status of any physician’s license is relevant to the credentials of the testifying expert.  The past negative marks are just as relevant as the past accolades, which, I can assure you, will be discussed ad nauseam during voir dire.

The credibility of all witnesses, expert or not, is also admissible for impeachment purposes.  Pursuant to Maryland Rule 5-608, “[t]he court may permit any witness to be examined regarding the witness’s own prior conduct that did not result in a conviction but that the court finds probative of a character trait of truthfulness.”  This physician’s consented-to conduct directly calls into question his character for truthfulness.  His past conduct should not be protected simply because he is a physician.  In this context, he is a witness and is subject to the same rules of evidence as all other witnesses.

To be sure this question is properly resolved before too many cases are decided, the legislature or Court of Appeals should take action to give finality to the question of whether this evidence is admissible for a finder-of-fact to consider at trial.

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