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Publications | September 29, 2017
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MSC to consider whether evidence from past medical malpractice cases is relevant under MRE 404(b)

The Michigan Supreme Court has granted mini-oral argument in Merchand v. Carpenter, No. 154622, to consider whether evidence from a defendant doctor’s past medical malpractice cases are relevant under MRE 404(b).  This case arose out of a medical malpractice action filed by Patricia Merchand against Richard Carpenter, M.D., and Mid-Michigan Ear, Nose, and Throat, P.C. for a permanent injury to the nerve that controls movement of the tongue.  At trial, Merchand sought to introduce evidence of Dr. Carpenter's past medical malpractice cases in order to show his scheme, plan, or system of creating medical records that did not accurately reflect his interactions with patients where surgeries resulted in serious complications.  The trial court prohibited any testimony regarding the parallels between this case and records in Dr. Carpenter's past medical malpractices cases, and the jury found Dr. Carpenter not professionally negligent.  The Court of Appeals vacated the jury's verdict, holding that while evidence of Dr. Carpenter's recordkeeping in past malpractice cases could not be used to attack his credibility or to show character or propensity, it could properly be used to show that he followed a particular pattern when it came to cases with serious complications resulting from surgery.