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What Happens When Trial Court Permits Plaintiff’s Doctor to Testify that the Defense’s Independent Medical Doctor is paid by an insurance company? A mistrial, according to New York’s First Department

November 19, 2021

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<p style="text-align: justify;">Evidence that a defendant carries liability insurance is generally inadmissible at trial, so when a trial witness spills the beans as to the existence of insurance, a mistrial may be warranted. While a mere reference to insurance will not always result in reversal, New York’s First Department recently held that notifying a jury that an insurance company is generally responsible for hiring doctors to perform independent medical examinations (“IME”) is enough to remand a case for a new trial.</p>
<p style="text-align: justify;">In<em> <a href="">Campbell v. St. Barnabas Hospital</a>,</em> 195 A.D.3d 405 (1<sup>st</sup> Dep’t 2021), plaintiff was injured tripping over a step stool that was placed in the walkway of defendant’s physical therapy clinic. During trial, plaintiff’s doctor was called to the stand and asked if he was aware that plaintiff was examined by another doctor under the guise of an IME. In response, plaintiff’s doctor answered in the affirmative, opined as to the lack of a doctor/patient relationship between plaintiff and the IME doctor, and further stated that IME doctors are “generally hired by an insurance company.” Defendant’s counsel objected to the response concerning insurance and requested a curative jury instruction. However, the Supreme Court did not give a curative instruction, but rather allowed plaintiff’s doctor to further testify that IME doctors are “generally hired by an outside agency” and that IME doctors are “hired solely for an opinion based on [a] bunch [of] records and an examination . . . that is how they’re hired.” Subsequently, defendant’s counsel requested a mistrial, but the Supreme Court denied the motion.</p>
<p style="text-align: justify;">On appeal, the First Department reversed the Supreme Court’s ruling and held that the testimony by plaintiff’s doctor warrants remanding the case for a new trial. The First Department explained that evidence of defendant carrying liability insurance is generally inadmissible, as it is both collateral and prejudicial. Thus, if testimony goes beyond the mere mention of insurance, a mistrial may be warranted. As such, the First Department held that the testimony of plaintiff’s doctor constituted reversible error and that a new trial was warranted. Accordingly, the First Department reversed the Supreme Court’s Ruling.</p>
<p style="text-align: justify;">Thanks to Drew Fryhoff for his contribution to this article.  Should you have any questions, please contact <a href="">Thomas Bracken</a>.</p>

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