Medical Malpractice Case of the Month
November 1999

Oklahoma Supreme Court Holds Plaintiffs in Medical Malpractice Action May Not Question Defense Medical Expert Concerning His Membership In Same Mutual Medical Malpractice Insurance Company as Defendant.

Plaintiffs Randy and John Mills brought a medical malpractice suit in an Oklahoma trial court against defendant Dr. Martin H Grotheer for the alleged wrongful death of their mother. At trial, plaintiffs sought to impeach defendant's expert witness, also a physician, by demonstrating financial bias concerning his membership, in common with defendant, in Physicians Liability Insurance Company ("PLICO"), which is open to members of the Oklahoma State Medical Association. The trial court prohibited any mention of PLICO at trial to impeach the defense witness. The jury returned a verdict for defendant and plaintiffs appealed.

The Oklahoma Supreme Court granted review because the issue of whether common membership in a mutual medical malpractice insurance company can be used to impeach a defense expert in a medical malpractice action was an issue of first impression. The high court noted that the trial court is permitted broad discretion in determining the relevance of evidence and its potential prejudice to the other party. The supreme court observed that by statute, the existence of liability insurance is never found to be relevant to the issue of a defendant's negligence, Okla. Stat. tit 12, 2411, but that credibility of a witness is always relevant. The supreme court examined how other jurisdictions have addressed the instant issue, and noted that several jurisdictions have adopted a connection test under which "a plaintiff must be able to establish that an expert has more connection to a defendant's insurer than that of a policyholder, or in the case of a mutual insurance company, membership." The high court found that the trial court did not abuse its discretion in granting defendant's motion to exclude any reference to the medical malpractice insurance company that the defendant and the expert witness shared membership because the expert's connection to the insurer was comparable to that of a policyholder. Concluding that the trial court did not abuse its discretion concerning admission of evidence and conduct of the trail, the high court affirmed the decision.

Mills v. Grotheer, No. 88,906, 1998 WL 170065 (Okla. Apr. 14, 1998)

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