Consent Orders Inadmissible in Malpractice Cases: Md. Ct. App.

Maryland law forbids the admission of consent orders and disciplinary actions of medical boards as evidence at trial, unless all parties involved expressly agree, or one of the parties brings litigation, the Maryland Court of Appeals has ruled in Smith v. Delaware North Companies, 2016, Md. Ct. App., overturning the trial court and granting a new trial.

In September 2012, the plaintiff, Brenda Smith, fell, landing on her left knee while at work as a cook at Camden Yards where the defendant,  Delaware North, was the food and beverage service operator. A few weeks after her fall, Smith saw Dr. Thomas Whitten, an orthopedic surgeon, who ordered an MRI which revealed a tear to the posterior horn of the medial meniscus and medial compartment arthritis. Whitten recommended an arthroscopic procedure. Smith did not have the procedure done, and when Whitten retired, he referred her to Dr. Kenneth Tepper, another orthopaedic surgeon, who recommended unicompartmental knee arthroplasty.

Then in November 2013, Smith saw Dr. Mark Cohen¹, an orthopedic surgeon at Maryland Orthopedics, PA, who recommended a full left knee replacement. In January 2014, she filed a workers' compensation claim requesting authorization for the knee replacement. The following month Smith returned to Maryland Orthopedics and saw Dr. Kevin McGovern, ²another orthopedic surgeon. McGovern also recommended knee replacement.

After the Workers' Compensation Commission denied Smith's claim, she filed a petition for judicial review, requesting a jury trial, presenting McGovern as an orthopedic surgery expert witness. During his deposition, McGovern was repeatedly asked by Delaware North about his consent order with, and disciplinary actions by, the Maryland Board of Physicians. McGovern repeatedly replied that, on advise of counsel, he was not allowed to answer.

Before trial, Smith sought to exclude those portions of the McGovern's deposition related to the consent order, arguing that the Maryland Code (Health Occupations Article HO §14-410(a)) expressly prohibited the introduction of such evidence.

At trial, Delaware North argued that, as McGovern had agreed to the consent order, he had thus stipulated that it could be discoverable and admitted into evidence because the consent order was a public document, removing it from under HO §14-410.

Smith argued that HO §14-410 is clear and unambiguous in its prohibition against the use of consent orders as evidence. As well, Smith argued that even though McGovern was on probation, his license to practice medicine was still in good standing, he was still qualified to treat patients, and to act as an expert witness.

The trial court partially agreed with Delaware North, finding that McGovern had stipulated that the order could be discoverable when he signed it, because he knew the order would be public, and that the probative value of the evidence regarding McGovern's disciplinary action outweighed any prejudicial effect.

The trial court did, however, limit the admittance of the consent order to the conclusions of law, the last six pages of the 23 page order. Those last pages included evidence that McGovern had failed to meet the appropriate standards of care in three cases and of failure to keep adequate medical records. It also included information on the dismissal of charges that McGovern had willfully submitted false statements and of grossly overusing health care services.

The jury returned a verdict in favor of Delaware North, and the trial judge affirmed the decision of the Workers' Compensation Board.

Smith filed a motion for a new trial, which was initially granted, but then denied, as that trial judge found HO §14-410 only applied to civil actions involving tort actions for medical malpractice.

The Court of Appeals disagreed, finding that HO §14-410 barred the admission of evidence of consent orders, and was not strictly limited to medical malpractice claims. The only exceptions were if all parties to the consent order "… expressely stipulate and consent to its use" or in civil litigation brought by one of the parties to the proceeding. The consent order signed by McGovern did not indicate consent to its admissibility or discoverability in any civil or criminal action.

The Court of Appeals found that Delaware North's repeated emphasis on the consent order and the underlying disciplinary action made it more than probable the jury considered inadmissible evidence, prejudicing Smith's case. It concluded a new trial was warranted.