EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, July 2, 2011

"That's What Insurance Is For": Court Of Appeals Of Minnesota Finds Malpractice Insurance Evidence Properly Admitted

Like its federal counterpart, Minnesota Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

So, was the Court of Appeals of Minnesota correct in its recent opinion in Zwaschka v. Carney, 2011 WL 2519135 (Minn.App. 2011), that evidence of malpractice insurance was properly admitted despite Rule 411? I don't think so.

In Zwaschka, Susan Zwaschka schedule an appointment for a chemical peel with Dr. Patrick Carney at Skin Speaks M.D., LLC.

In the days following the peel, Zwaschka experienced pain, swelling, redness, and open wounds that wept fluid. She returned to Dr. Carney's office one week after the chemical peel, and Dr. Carney told her that her condition was not normal and that he was very concerned. Zwaschka cancelled her trip to Chicago and treated with Dr. Carney for several days. During these visits, Dr. Carney conducted "aggressive wound care." He soaked her face in wet gauze, discussed giving her a steroid injection, and prescribed medication. Dr. Carney and Zwaschka discussed scarring and the risk of infection in the open wounds. Dr. Carney explained that when [esthetician Jeanne] Jellison pointed out the spot that he had missed during the peel, he may have overlapped the procedure and applied a second coat of the solution. Dr. Carney told Zwaschka that she should blame him rather than herself and that he had contacted his malpractice-insurance provider. The chemical peel had caused superficial second-degree burns that left Zwaschka with permanent scars on her right cheek, on her chin, and above her lip.

Zwaschka and her husband thereafter sued Dr. Carney and Skin Speaks, alleging medical negligence and civil battery. After the jury found for the plaintiffs and awarded them approximately $1 million in damages, the defendants appealed

One of the grounds for the appeal was that the trial court erred by allowing Zwaschka to testify about statements that he made regarding his malpractice insurance. Specifically, Zwaschka testified that Dr. Carney "told her that she should blame him rather than herself for what happened to her, that he had contacted his malpractice-insurance provider, and that, 'That's what insurance is for.'" According to the defendants, "Zwaschka's testimony about insurance 'fall[s] squarely within the Rule 411 bar on evidence of insurance.'"

According to the Court of Appeals of Minnesota, however,

In allowing this testimony, the district court reasoned that the testimony was introduced not to impute negligence, but instead to show Dr. Carney's state of mind after the procedure, his "acceptance of responsibility for the results...and his tacit admission of his own errors." We cannot say that the district court abused its discretion in this regard."

But wasn't this result achieved by the first part of Zwaschka's testimony? According to Zwaschka, Dr. Carney told her that she should blame him rather than herself for what happened to her. Doesn't this statement accomplish the goal of proving that Dr. Carney accepted responsibility and admitted his errors? And what does the addition of the statements regarding malpractice insurance add to the equation?

I would argue that the answer is nothing, except for making the jury feel like they could award a large verdict to the plaintiffs because they knew that malpractice insurance would take care of it. As the Advisory Committee's Note to Federal Rule of Evidence 411 makes clear, the most important reason why evidence of liability insurance is generally inadmissible is because of "the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds." In other words, Rule 411 is based upon the belief that knowledge of liability insurance would induce jurors to award more in damages. And indeed, Dr. Carney's alleged statement asked jurors to do just that because "That's what insurance is for."



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