E-Alert Case Updates

Statutory Privilege Barring Evidence of Proceedings of the Maryland State Board of Physicians Applies to Physicians Testifying as Expert Witnesses

Pepsi Bottling Group, et al. v. Plummer
No. 1055 (Court of Special Appeals of Maryland, January 28, 2015)
by Caroline E. Willsey, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/cosa/2016/1055s14.pdf

In Pepsi Bottling Group, et al. v. Plummer, No. 1055, the Court of Special Appeals of Maryland considered an appeal following a jury trial in the Circuit Court for Prince George’s County in a workers’ compensation case. At trial, judgment was entered in favor of the claimant, Derek L. Plummer. Pepsi Bottling Group (“Pepsi”) and its workers’ compensation insurer appealed. The crux of Pepsi’s appeal stemmed from the trial court’s interpretation of the statutory privilege that bars evidence of the proceedings, records, files and orders of the Maryland State Board of Physicians. See Md. Code Ann., Health Occup., § 14-410. Specifically, Pepsi argued that the trial court erred in denying their motion to strike the de bene esse video deposition of Plummer’s expert witness, Dr. Michael Franchetti and that the trial court erred in granting Plummer’s motion in limine with regard to portions of Dr. Franchetti’s testimony.

On April 18, 2012, Plummer slipped and fell while working for Pepsi as a machine sanitizer. Plummer subsequently missed work for two (2) months, during which time he participated in physical therapy for both his knee and ankle and was treated by an orthopedic-surgery practice. In June 2012, Plummer was cleared to return to work.

In May 2013, Plummer’s case was heard before a workers’ compensation commissioner. The commissioner found that Plummer had sustained 15% loss of use of his right knee – with 5% reasonably attributable to the workplace injury and 10% preexisting – and that he had sustained a 2% loss of use of the right foot (which includes the ankle), with no apportionment. Plummer subsequently filed a petition for judicial review in the Circuit Court for Prince George’s County.

Plummer designated Dr. Michael Franchetti, an orthopedic surgeon, to testify as an expert witness. Prior to his designation as an expert witness, Dr. Franchetti had agreed to the entry of a consent order by the Maryland State Board of Physicians (the “Board”) to resolve disciplinary proceedings brought against him. The order reflected a finding that Dr. Franchetti had failed to meet appropriate standards for the delivery of quality medical care, had grossly overutilized health care services, and had failed to keep adequate medical records. The Board placed Dr. Franchetti on probation and imposed a twenty-five thousand dollar ($25,000) fine against him. The consent order included a paragraph stating, “ORDERED that this Consent Order is considered a PUBLIC DOCUMENT pursuant to Md. Code Ann., State Gov’t, §10-611, et seq.”

During Dr. Franchetti’s video deposition, Pepsi’s counsel asked Dr. Franchetti a series of questions about the Board’s disciplinary proceedings and the consent order. Dr. Franchetti refused to answer any of these questions asserting a claim of privilege pursuant to Md. Code Ann., Health Occup. § 14-410(a). Several weeks prior to trial, Pepsi filed a motion to strike the de bene esse deposition of Dr. Franchetti, or, in the alternative, to compel Dr. Franchetti to respond to the unanswered discovery deposition questions. Plummer filed an opposition as well as a motion in limine to preclude any mention of, and any evidence regarding, the Board’s disciplinary proceedings and consent order at the trial.

The court denied Pepsi’s motion to strike Dr. Franchetti’s de bene esse deposition, and denied the request for an order to compel Dr. Franchetti to answer questions about the disciplinary proceedings and consent order. The court also granted Plummer’s motion in limine and barred any mention of Dr. Franchetti’s disciplinary proceeding at trial. The court determined that the plain language of the privilege contained in section 14-410(a) was applicable and controlling.

Section 14-410(a) provides that the “proceedings, records and files of the Board” are “not admissible” in “a civil or criminal action.” Pepsi argued that the term “civil action,” as used in the statute only applied to actions brought against a physician for medical malpractice, and did not apply to actions where a physician was testifying as an expert witness.

The Court began its analysis by noting that the “cardinal rule” of statutory interpretation was to ascertain and effectuate the intent of the legislature. The Court then backtracked and noted that because the language of Section 14-410(a) was clear and unambiguous, it did not need to resort to canons of interpretation. According to the Court, the term “civil action,” is “generally understood to have a plain meaning which is considerably broader than suits brought against a physician for malpractice.” The Court supplemented its plain meaning analysis with Maryland Rule 2-101(a), which provides that a civil action is “commenced by filing a complaint with a court.” Similarly, Maryland Rule 1-202(a) defines an “action” as “collectively all the steps by which a party seeks to enforce any right in a court . . . .” Neither of these definitions restricts the term “civil action” to one in which a claim is brought against a physician for malpractice.

Pepsi further argued, however, that section 14-410(d) provides a more limited definition for “civil action” as used in Title 14 of the Maryland Code. Section 14-410(d) states: “‘Civil action’ includes a health care malpractice claim under Title 3, Subtitle 2A of the Courts Article.” The Court rejected this argument as well, stating that to accept Pepsi’s argument would be “to equate the word ‘includes’ with the word ‘means.’” Because medical malpractice actions are subject to mandatory arbitration requirements, the Court reasoned that it was reasonable for the General Assembly to clarify that the definition of “civil action” includes “medical malpractice actions.” The Court also bolstered its conclusion by referencing Certain Underwriters at Lloyd’s, London v. Cohen, 785 F.3d 886 (4th Cir. 2015), in which the Fourth Circuit concluded that the privilege prohibiting admission of evidence of the Board’s records orders, under section 14-410(a), was applicable in civil actions other than medical malpractice actions.

In addition, Pepsi argued that the privilege under section 14-410(a) was expressly limited to documentary evidence because the subsection (a) is titled “Records not discoverable or admissible.” Again, the Court disagreed. First, the Court reasoned that the words of the statute itself, not the heading, are controlling. Second, the Court noted that if it accepted Pepsi’s argument, evidence of the Board’s disciplinary proceedings would be admissible, even in malpractice suits against physicians, even if no documentary evidence could be introduced.

Finally, Pepsi argued that by signing the consent page attached to the Board’s order, Dr. Franchetti waived the privilege afforded by section 14-410(a). Pepsi relied upon the following statutory exception: “Except by the express stipulation and consent of all parties to a proceeding before the Board, a disciplinary panel, or any of its other investigatory bodies,” the protections shall apply. The Court disagreed that Dr. Franchetti had waived his rights by signing the consent page, noting that “nowhere in the consent did Dr. Franchetti expressly ‘stipulate and consent’ to the discoverability and admissibility of the Board proceeding in future civil actions.” Likewise, the Court concluded that the fact that the consent order was a self-described “PUBLIC DOCUMENT,” was not enough to waive the protections afforded by section 14-410(a). Public availability does not automatically make a document admissible in evidence.

The Court of Appeals therefore concluded that the trial court did not err in denying Pepsi’s motion to strike the de bene esse deposition of Dr. Franchetti and in granting Plummer’s motion in limine of Dr. Franchetti’s disciplinary proceeding in this unrelated workers’ compensation proceeding.