Trull v. Long

• Decision Date: 04 June 1993
• Citation: 621 So.2d 1278
• Parties: Ricky E. TRULL, as administrator of the Estate of Janet Kay Trull, deceased v. Dr. Robert T.L. LONG. 1911712.
• Court: Alabama Supreme Court

Page 1278

621 So.2d 1278

Ricky E. TRULL, as administrator of the Estate of Janet Kay Trull, deceased v. Dr. Robert T.L. LONG.

1911712.

Supreme Court of Alabama.

June 4, 1993.

S. Shay Samples and Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, P.C., Birmingham, for appellant.

W. Stancil Starnes and W. Hill Sewell of Starnes & Atchison, Birmingham, for appellee.

MADDOX, Justice.

The sole issue presented in this medical malpractice case is whether the trial court erred in refusing to allow the plaintiff's expert witness to testify on redirect examination concerning an alleged "conspiracy of silence" among physicians. We affirm.

Ricky Trull, as administrator of his deceased wife's estate, sued Dr. Robert T.L. Long, Dr. Long's professional association, various other physicians, the Lauderdale County Hospital board, and the City of Florence, alleging medical malpractice. Trull alleged that Dr. Long had negligently treated his wife for Guillain-Barre disease and had negligently performed a tracheostomy. Also, in the same action, Trull sued Bivona, Inc., alleging products liability for marketing an allegedly defective endotracheal tube.

The trial court dismissed all defendants except Dr. Long and his professional association. Before trial, Dr. Long filed a motion in limine asking the court to prohibit the plaintiff from referring to, or discussing in any way, any alleged "conspiracy of silence" among physicians. The trial court granted Dr. Long's motion in limine.

During cross-examination of Trull's expert, Dr. Mills, the defense established that Dr. Mills had given deposition testimony 52 times in medical malpractice cases, had testified 13 times in medical malpractice cases, had testified 3 times in arbitration proceedings related to medical malpractice claims, had testified numerous other times for Trull's attorney on behalf of other plaintiffs, charged $250 an hour to review the records on potential claims, and accepted referrals from associations of professional expert witnesses. After cross-examination, Trull asked the court to allow redirect testimony concerning the alleged "conspiracy of silence," so as to explain why Dr. Mills testified so often. The court refused to allow the requested redirect testimony.

The court submitted the case to the jury and the jury returned a verdict for the defendants. Thereafter, Trull moved for a new trial. The court denied that motion. Trull appeals. ¹

Initially, we note that the alleged "conspiracy of silence" has received much critical comment. Furthermore, commentators have readily recognized the alleged "conspiracy" as fact. See, e.g., Joan Vogel and Richard Delgado, To Tell The Truth: Physicians' Duty To Disclose Medical Mistakes, 28 U.C.L.A.L.Rev. 52 (1988) (urging courts to adopt a positive legal duty requiring physicians to report their own and other physicians' mistakes to patients and a corresponding cause of action for failure to disclose); Rickee N. Arntz, Comment, Competency of Medical Expert Witnesses: Standards and Qualifications, 24 Creighton L.Rev. 1359, 1379 (1991) (discussing the "conspiracy of silence" problem, particularly the problem of explaining to the jury why the plaintiff's expert is not a local physician); Joseph Kelner, The Silent Doctors--The Conspiracy of Silence, 5 U.Rich.L.Rev. 119 (1970-71) (an interesting discussion of the alleged "conspiracy of silence"); Melton Kelner, The Medical Conspiracy of Silence, 87 Case & Comment 10 (July-August 1982) (defining the "conspiracy" as "the unwritten code of non-criticism ... imprinted on the doctor throughout his or her entire period of training" and discussing the consequences of a local doctor's testifying against another local doctor); Richard M. Markus, Conspiracy of Silence, 14 Cleve.Marsh.L.Rev. 520 (1965) (discussing three possible causes for the alleged "conspiracy": physicians' fears of financial and professional ruin, defense attorneys' encouraging local doctors not to talk with counsel for plaintiffs, and legal rules, such as that requiring expert testimony in medical malpractice cases and the locality rule); David E. Seidelson, Medical Malpractice Cases and the Reluctant Expert, 16 Cath.U.L.Rev. 158 (1966) (discussing the "conspiracy" problem and suggesting four alternative ways of securing a medical expert: using interprofessional panels to review potential claims, using the "learned treatise" rule, using state statutes that authorize courts to appoint medical experts, and using the trial court's inherent power to appoint experts and provide for their compensation); Note, Overcoming the "Conspiracy of Silence": Statutory and Common-Law Innovations, 45 Minn.L.Rev. 1019 (1961) (discussing the "conspiracy" and suggesting use of learned treatises and medical brochures as means of overcoming its effect).

One scholar's comments are typical of the general tenor of the literature:

"It has been held to be a matter of common knowledge that a plaintiff in a medical malpractice action often is unable to find a medical expert willing to testify against a fellow physician, and that this fact creates the possibility of 'great miscarriages of justice.' This tendency of physicians to refrain from testifying against one another has been referred to as the 'conspiracy of silence.' It has been said this phenomenon has developed for any, or all, of the following reasons; (1) physicians believe their colleagues are often found liable when not negligent; (2) they think jurors are ill-equipped to scrutinize medical technicalities; (3) physicians fear the 'wrath' of attorneys on cross-examination; (4) they are obviously sympathetic with the defendant-physician, knowing that even competent physicians are subject to malpractice suits; and (5) the medical profession, as well as the malpractice insurance carriers, discourages such testimony.

"....

"And it has been held that the natural result of such conspiracy, a trial in which many witnesses testify on behalf of the defendant-physician and few on behalf of the plaintiff, should not be considered by an appellate court in deciding whether the evidence supported a verdict for the malpractice plaintiff."

David M. Harney, Medical Malpractice § 5.1 at 193, 195 (1973 & Supp.1980) (Emphasis supplied). ²

Courts, however, have been far more reluctant than commentators to embrace and recognize the alleged "conspiracy of silence." A review of our sister states' case law in point reveals that, while courts have discussed the alleged "conspiracy" in various contexts and on numerous occasions, they have been reluctant, generally, to recognize the "conspiracy."

Numerous courts have mentioned the possibility of the "conspiracy" existing as a reason to abrogate or change the "locality rule." See, e.g., Morrison v. MacNamara, 407 A.2d 555, 563 n. 7 (D.C.1979); Hansbrough v. Kosyak, 141 Ill.App.3d 538, 95 Ill.Dec. 708, 712, 490 N.E.2d 181, 185 (1986); Bartimus v. Paxton Community Hosp., 120 Ill.App.3d 1060, 76 Ill.Dec. 418, 423, 458 N.E.2d 1072, 1077 (1983); Ardoin v. Hartford Acc. & Indem. Co., 360 So.2d 1331, 1337 (La.1978); and Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191, 1194 (1979). Other courts have discussed the alleged "conspiracy" in deciding whether their states' versions of "informed consent" should require expert testimony. See, e.g., Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647, 650 (1971); and Hunter v. Brown, 4 Wash.App. 899, 484 P.2d 1162, 1165 (1971). Still other courts have discussed the "conspiracy" problem when parties have argued that, because of the alleged "conspiracy," the doctrine of res ipsa loquitur should apply to their case. See, e.g., Gould v. Winokur, 98 N.J.Super. 554, 237 A.2d 916, 921 (1968); Jones v. Harrisburg Polyclinic Hosp., 496 Pa. 465, 437 A.2d 1134, 1138 (1981); and Irick v. Andrew, 545 S.W.2d 557, 559 (Tex.Civ.App.1981). Additionally, courts have mentioned the alleged "conspiracy" in stating or reiterating a rule advising trial courts to exercise extreme caution in entering a summary judgment against a medical malpractice plaintiff, Buck v. Alton Memorial Hosp., 86 Ill.App.3d 347, 41 Ill.Dec. 569, 585, 407 N.E.2d 1067, 1083 (1980); Goffe v. Pharmaseal Laboratories, Inc., 90 N.M. 764, 568 P.2d 600, 607 (Ct.App.1976) (Sutin, J., concurring in part, dissenting in part); in rejecting an argument that the trial court found the plaintiff's expert competent based largely on the alleged "conspiracy," Lewis v. Read, 80 N.J.Super. 148, 193 A.2d 255, 266 (1963); in rejecting the trial court's allowing the plaintiff to treat the defense's expert witness as hostile when called by the plaintiff during direct examination, Reams v. Stutler, 642 S.W.2d 586, 588 (Ky.1982); and in rejecting a plaintiff's argument that the trial court should have compelled the defendants to reveal their expert witnesses that were not to be called at trial, Stevens v. Barnhart, 45 Md.App. 289, 412 A.2d 1292, 1294 (1980).

Several of our sister states either flatly reject or seriously doubt the notion that any "conspiracy of silence" exists among physicians. For example, in Clark v. Norris, 226 Mont. 43, 734 P.2d 182, 187 (1977), the court found no error in the trial court's refusal to take judicial notice of the alleged "conspiracy of silence," noting that "Whether or not there is a conspiracy of silence in the medical community is a subject of considerable debate."

In Farley v. Meadows, 185 W.Va. 48, 404 S.E.2d 537, 539-40 (1991), the court stated:

"Ms. Farley had ample time to retain an expert, and failed to do so. She claims that there is a 'conspiracy of silence' among medical professionals, and, of course, there is an understandable reluctance among doctors to testify against fellow doctors with whom they must work every day. However, it is obvious from the abundance of medical malpractice cases that go to trial around the United States, and from the profusion of medical experts advertising their services in the back of legal...