“do you swear to tell the truth?”

4
“DO you wear to tell the truth? iiig for that moment of truth \houltl ~llou ~oii to Londuct iour\elf ‘1s .I profe5sional I\ ho projects ,in nn~ge of credibility. The reality of your involvement as a health professional in a medical mal- practice lawsuit will never be real- ized more fully than when you are asked to raise your right hand and swear or affirm that you will tell the truth, so help you God! Of course, as a health professional, your involve- ment in the legal process may not be limited to medical malpractice actions. If, for instance, you were involved in the case of a rape victim, a patient involved in an industrial mis- hap, or a patient injured in a hit and run motor vehicle accident, you could be called to testify as a wit- ness for either the prosecution or defense in the case of the rape, the employer or employee involved in the industrial mishap, or the plaintiff or defendant in the civil case of the automobile accident. The forums for such testimony range from the infor- mal, such as a deposition, to admin- istrative hearings, such as disability determinations, to the formal, such as a trial. of testifying-whether at trial, in a hearing or in a deposition-will depend upon many factors. How- ever, several suggestions for prepar- How you will manage the process Perspectives in Hospital Risk Management Published quarterly by the American Society for Hospital Risk Management of the American Hospital Association, 840 N Lake Shore Dr , Chicago, IL 60611 Opinions expressed in this newsletter are not necessarily those of the American Society for Hospital Risk Management or the American Hospital Association ~ ~~ ~~ ~~ ~ ~~ 2 Perspectives in Hospit.11 R~sk Management Taking testimony Because most testifying by health professionals occurs in ‘in oral depo- sition, this article focuses on that process. However, the suggestions offered apply to any forum in which you testify. A drj~ositiori is the tes- timony of a witness who is exam- ined out of court before an official who is empowered to administer an oath (usually a court reporter) by a party who has given notice to all other parties so that they can be present to cross-examine the drpo- rient (the individual whose testimony is being sought). Aside from the location, testimony of a witness takes the same question and answer format as testimony in open court. Objections to questions may be made but cannot be ruled upon at the time because the person before whom the deposition is being taken is not a judge, but usually a notary public. Such objections will be noted in the stenographic record of the deposition and can then later be ruled upon by the court. The taking of testimony by depositions was originally the means of taking tes- timony of witnesses who for one reason or another would be unable to appear at the trial. However, such depositions may also be taken (and today, more commonly are taken) for discovery purposes- that is, as a means for the parties to learn all relevant facts pertaining to their case prior to trial. The mechanics for taking a depo- sition are relatively simple. The party desiring to take the deposition Volume 6 Number 3 President: James Holzer, J.D., Risk Manage- ment Foundation of the Harvard Medical Institutions, Cambridge, MA President-elect: Sanford (Sandy) Rragman, Daughters of Charity Health System East, Baltimore Society director: David Meyers, American Hospital Association, Chicago Staff associate: Hattie Grimsley, American Hospital Association, Chicago Society secretary: Cherrell Jackson, American Hospital Association, Chicago Newsletter Department editor: Peg Schultz Veach, American €Iospital Association, Chicago Summer 19 8 6 ~~ ~~ ~ ~~ ~~ ~ ~~ i\ merely required to give Lzritten notice to .ill other partie\ to the IJU suit of the time .tnd place for tnking the deposition and the names of the lvitneses to be examined. A subpoena may be obtained to com- pel the attendance of a xvitness if necessary; such ;I subpoena may, in addition, require the witness to bring specificall! designated documents- the medical record and hospital policies, for example. The rules of civil procedure, however, provide that the parties can dispense with the formalities of notice by written stipulation, indicat- ing the deposition be taken before any person, at any time and place agreed upon. nation are more effective than a written examination because an answer to a question may disclose information or suggest a clue to a new line of inquiry which in turn may open up other areas. Because of this, depositions have often been referred to as “fishing expeditions.” The only limitation in the scope of questioning during a deposition is that the inquiry be confined to any matter relevant to the subject matter of the suit, including not only what may be evidence at the trial, but also what may lead to evidence. Depositions taken on oral exami- The deposition process I have always found it helpful in preparing a witness to explain in some detail the process of a deposi- tion including, for example, who will be present, how the room will be arranged, how those in atten- dance will be seated, the order of questioning, and so forth. This information allows the deponent to become oriented immediately to the Summer 1986 ASHRM Publications Committee: Steve MacLauchlan (chairman), North Shore Medical Center, Miami, FL Cary Dwight Burke, Group Health Cooperative, Seattle, WA Grace Aileen Evans, Metroplex Hospital Killeen, TX I ind‘i Harpster, Sisters of Ch:irity €Iealth Care Systems, Cincinnati, OH Isinice Kader, Abington Memorial Hoapiti .\bington, PA R. Stephen Trosty, J.D., Ixtheran Hospitals & Homes Society, Fargo, ND - ~~ ~~ ~ ~ ~~ C 1986 by the American Hospital Association

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Page 1: “Do you swear to tell the truth?”

“DO you w e a r to tell the truth? ”

iiig for that moment of t ru th \houltl ~ l l o u ~ o i i to Londuct iour\elf ‘1s .I

profe5sional I\ ho projects ,in n n ~ g e of credibility.

The reality of your involvement as a health professional in a medical mal- practice lawsuit will never be real- ized more fully than when you are asked to raise your right hand and swear or affirm that you will tell the truth, so help you God! Of course, as a health professional, your involve- ment in the legal process may not be limited to medical malpractice actions.

If, for instance, you were involved in the case of a rape victim, a patient involved in an industrial mis- hap, or a patient injured in a hit and run motor vehicle accident, you could be called to testify as a wit- ness for either the prosecution or defense in the case of the rape, the employer or employee involved in the industrial mishap, or the plaintiff or defendant in the civil case of the automobile accident. The forums for such testimony range from the infor- mal, such as a deposition, to admin- istrative hearings, such as disability determinations, to the formal, such as a trial.

of testifying-whether at trial, in a hearing or in a deposition-will depend upon many factors. How- ever, several suggestions for prepar-

How you will manage the process

Perspectives in Hospital Risk Management

Published quarterly by the American Society for Hospital Risk Management of the American Hospital Association, 840 N Lake Shore Dr , Chicago, IL 60611

Opinions expressed in this newsletter are not necessarily those of the American Society for Hospital Risk Management or the American Hospital Association

~ ~~

~~ ~~ ~ ~~

2 Perspectives in Hospit.11 R ~ s k Management

Taking testimony

Because most testifying by health professionals occurs in ‘in oral depo- sition, this article focuses on that process. However, the suggestions offered apply to any forum in which you testify. A drj~ositiori is the tes- timony of a witness who is exam- ined out of court before an official who i s empowered to administer an oath (usually a court reporter) by a party who has given notice to all other parties so that they can be present to cross-examine the drpo- rient (the individual whose testimony is being sought). Aside from the location, testimony of a witness takes the same question and answer format as testimony in open court.

Objections to questions may be made but cannot be ruled upon at the time because the person before whom the deposition is being taken is not a judge, but usually a notary public. Such objections will be noted in the stenographic record of the deposition and can then later be ruled upon by the court. The taking of testimony by depositions was originally the means of taking tes- timony of witnesses who for one reason or another would be unable to appear at the trial. However, such depositions may also be taken (and today, more commonly are taken) for discovery purposes- that is, as a means for the parties to learn all relevant facts pertaining to their case prior to trial.

The mechanics for taking a depo- sition are relatively simple. The party desiring to take the deposition

Volume 6 Number 3

President: James Holzer, J .D. , Risk Manage- ment Foundation of the Harvard Medical Institutions, Cambridge, MA President-elect: Sanford (Sandy) Rragman, Daughters of Charity Health System East, Baltimore Society director: David Meyers, American Hospital Association, Chicago Staff associate: Hattie Grimsley, American Hospital Association, Chicago Society secretary: Cherrell Jackson, American Hospital Association, Chicago Newsletter Department editor: Peg Schultz Veach, American €Iospital Association, Chicago

Summer 19 8 6

~~ ~~ ~ ~~

~~ ~ ~~

i \ merely required to give Lzritten notice to .ill other partie\ to the I J U suit of the time .tnd place for tnking the deposition and the names of the lvitneses to be examined. A subpoena may be obtained to com- pel the attendance of a xvitness if necessary; such ;I subpoena may, in addition, require the witness to bring specificall! designated documents- the medical record and hospital policies, for example.

The rules o f civil procedure, however, provide that the parties can dispense with the formalities of notice by written stipulation, indicat- ing the deposition be taken before any person, at any time and place agreed upon.

nation are more effective than a written examination because an answer to a question may disclose information or suggest a clue to a new line of inquiry which in turn may open up other areas. Because of this, depositions have often been referred to as “fishing expeditions.”

The only limitation in the scope of questioning during a deposition is that the inquiry be confined to any matter relevant to the subject matter of the suit, including not only what may be evidence at the trial, but also what may lead to evidence.

Depositions taken on oral exami-

The deposition process

I have always found it helpful in preparing a witness to explain in some detail the process of a deposi- tion including, for example, who will be present, how the room will be arranged, how those in atten- dance will be seated, the order of questioning, and so forth. This information allows the deponent to become oriented immediately to the

Summer 1986

ASHRM Publications Committee: Steve MacLauchlan (chairman), North Shore Medical Center, Miami, FL Cary Dwight Burke, Group Health Cooperative, Seattle, WA Grace Aileen Evans, Metroplex Hospital Killeen, TX I ind‘i Harpster, Sisters of Ch:irity €Iealth Care Systems, Cincinnati, O H Isinice Kader, Abington Memorial Hoapi t i .\bington, PA R. Stephen Trosty, J.D., Ixtheran Hospitals & Homes Society, Fargo, ND

- ~~ ~~

~ ~ ~~

C 1986 by the American Hospital Association

Page 2: “Do you swear to tell the truth?”

wrroundings , i d then conccntr,ite more easil? o n the substance of the d e p ( s i ti o i i ,

hlost depositions are held i n the office4 of the attorney for the party requesting the deposition. However, in medicd nialprncticc cases involv- ing the depositions of several health professionals, it is not uncommon to hold the depositions on the premi4es of the ho spi t ~i 1 , the re by fac i I i t‘i ring the schedules of the deponents and avoiding disruption o f the delivery o f health-care services.

enough to accommodate the depo- nent and his or her attorney, the attorney who requested the deposi- tion, the attorneys for other parties involved in the lawsuit, the court reporter, and the plaintiff(s) or defendant(s) if they choose to attend. The seating for a deposition is dictated by a number of factors. First, the court reporter needs to be in a position to clearly hear the testimony of the deponent. The attorney who has requested the deposition needs to be in a position to be heard by the deponent and likewise to hear the deponent’s responses. Thus, the deponent is usually seated directly across from the attorney who will be asking the questions with the court reporter off to the side but facing the deponent. The deponent’s attorney will be seated immediately beside the depo- nent. The parties to the lawsuit and any other attorneys will then seat themselves accordingly. Since often a deposition is taken around a confer- ence table, it is not unusual for the plaintiffs and their counsel to be on one side with the defendants and their counsel on the other.

The deposition will commence as soon as all parties are present. At that point, the court reporter will be asked to swear or affirm the wit- ness; and from that point on, every word spoken during the course of the deposition is under oath and recorded.

Generally, the attorney who requested the deposition will make the appropriate introduction and briefly describe the purpose of the deposition (usually stated in general terms either to simply “find out what you know” if it is a “discov- ery” deposition, or record testimony for use at trial when the witness will not be present).

The room chosen should be large

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3 I’erspectives in Hospital Risk Management

Suggestions for deponents

.4ppoLiramc is w I p o r t L i n / . I’resent > c)ur best appearance. When you Lippear at the deposition, the oppos- ing ‘ittorney \viH appraise >-ou and in a ke tent ;it i ve e\,alu ;i t i o n s o f h OM

>-ou \ \ i l l impress the jury. Therefore, it is important to dress neatly and conventionally. I f you are scheduled to be deposed :it ;in attorney’s office, a business suit o r similar attire is appropriate. However, i f y o u are going to be deposed on the hospital premises before, during, or after your regular shift, appearing in your uniform is appropriate. Again, your attire can convey your attitude toward the case, and it is helpful to appear interested and project a respectful demeanor. rn Maintain a pleasant dewleanor. Whether you are the defendant in a lawsuit or simply a witness to the events, it is important to maintain a pleasant demeanor. In answering questions posed by the attorney, project a polite and cooperative atti- tude. You should appear sincere and interested in the case and should avoid showing your displeasure at the inconvenience of having to go through the deposition. If you feel the other attorney is taking advan- tage of you, do not display your feelings. Your attorney is present and will do whatever is expedient or necessary.

Enunciate clearly. Make an effort to speak up and enunciate clearly. The court reporter is recording everything you say, which may later be used in court. Therefore, refrain from speaking when someone else is talking. You should speak audibly so that the court reporter records your words precisely. In this regard, it is important to remember that you must respond orally. Nodding of the head or the use of other body lan- guage is difficult to record and is subject to misinterpretation. In addi- tion, it is important to avoid bodily movements, such as nodding in agreement with the attorney posing questions, as these movements might be misinterpreted by the attorney and lead to a different line of ques- tioning that could serve to obscure the main issues.

Personal/professional informa- tion. Always be prepared to answer questions pertaining to your place of residence, your age, and your mari-

tal 4t:itus (including the dates of ni ;I rri agcs / d i \ ( ) rces ) . &’hi I e () ften - times this information \.ant to the issues of a pxticular lam-suit, it may become relevant to your credibility. Of even greater i t n port a n ce ;ire question s h ;I\, i ng to do \vith your educational back- ground. Prior to being deposed, review the schools you attended, the dates Littended, the degrees awarded, and additional academic work tha t may not have led to a degree.

I n addition to this ge:ieral infor- mation, attorneys (depending upon the specific issues in the case) may often ask specific questions concern- ing certain courses you might have taken-mathematics, for instance. This may be particularly true in a situation involving a medication inci- dent where there is some question as to the amount of medication given, especially in cases where some preparation requiring measurement was involved. You may even be asked what grade you received. This kind of questioning should alert you to the fact that it may be headed in a direction intended to show you in a bad light.

Likewise, you will be questioned concerning your employment back- ground. Where did you work? When? In what capacity? Reviewing this information prior to the deposi- tion will allow you to answer ques- tions with certainty, increasing your sense of comfort and projecting an image of a calm, self-assured professional.

Know the facts. If you were involved in the care of a particular patient who is the plaintiff in the lawsuit, it is always appropriate to review the facts of the occurrence. This may involve reviewing the med- ical record and in particular the documentation for which you were responsible. You may also have made some notes at the time of the incident and these should also be reviewed. It should be remembered that no purpose is served by an attempt to “play dumb” in a deposi- tion. In fact, professional credibility is often damaged when such tactics are used. Being aware of the facts of the situation and the role you may have played will serve to improve the quality of the deposition and more efficiently use the time allotted.

Likewise, it should go without saying that a medical record should

Page 3: “Do you swear to tell the truth?”

never be falsified or intentionally altered to cover up inappropriate action or inaction. Just JS ;i com- plete and accurate medical record will serve to establish a nurse’s professional credibilit) , a record that has been altered or amended in a suspicious manner can damage or destroy credibility and may even compromise the defense. Tampering with the medical record may be viewed as proof of negligence and thus only serve to multiply culpability. rn Diagrams/sketches. If the particu- lar incident which is the subject of the lawsuit involves placement of persons or objects, and these place- ments are particularly relevant, it may be helpful to make a sketch or diagram of the scene either prior to the deposition or during the deposi- tion, if requested to do so. For instance, if there is a dispute as to the observation of a patient by the nursing staff, it may be helpful to sketch the physical setting involved- a hallway with stretchers facing the nurse’s station. rn Matters of time, amount, distance. Often in medical malprac- tice cases, the time of an event-an order, a transfer to the operating room, a page to the attending physician -is important. Likewise, the amount of certain items-fluids administered intravenously, blood, medication-is a crucial issue. As a result, you might be asked to esti- mate how much blood was given or what time the physician called in the order. Do not be forced into guess- ing by the opposing attorney. If the opposing attorney asks that you use your best judgment and you are unable to make a reliable judgment, indicate that you cannot make a reliable judgment and would only be guessing. Remember, you do not have to guess, and “I don’t know” is an appropriate response. rn Exhibit identification. The basis of almost every medical malpractice action is the documentation con- tained in the medical record. Thus, it is quite likely that during a depo- sition the nurse will be handed either the original or a certified copy of the medical record of the patient involved in the case. Carefully scrutinize any exhibit that you are handed and asked to identify. Take your time, review it carefully. If you are unable to identify it, say so. If you recognize the exhibit, so indi-

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4 Perspectives in Hospital Risk Management

a t e . In responding to questions con- cerning the exhibit, ni;ike clex reference to the title of the ciocu- merit and its various parts. Be sure, however, that your answers are related to the documentation that Iou provided in the exhibit. You are not required to interpret notations made by other members o f the health -care tea i n .

For instance, if you were the cir- culating nurse involved in the care o f Mr. Smith who had been admit- ted to the hospital for an appendec- tomy, it is improper for you to be asked to interpret the Anesthesia Record and you may decline to do so. Your response can simply indi- cate that you did not document on that particular record; and while you can identify it as titled Anesthesia Record, you are not an anesthesiolo- gist or certified nurse anesthetist and, therefore, are unable to inter- pret the record.

In addition to the medical record, hospital policies and procedures may be introduced as evidence to prove the standard of care in a particular situation. Again, take time to iden- tify the document you are handed, checking carefully for the effective date of the policy’s application. rn Understanding the question. Always be sure that you understand the question before you answer. Often deponents, in an effort not to antagonize the attorney asking ques- tions, will hesitate to ask the attor- ney to repeat a question. Assume, for example, that an attorney asks, “Did you administer the medication to Mr. Smith as ordered?” The facts of the case were that the medication as ordered was inappropriate, you had questioned the order, and, in fact, had administered a different dose of the medication. You have not answered the question properly if you simply say yes. Remember, an inaccurate answer in response to a misunderstood question can materi- ally affect the results of the case. In addition, if the clarification does not come until the transcribed deposition is reviewed or even later, as at trial, your motives in changing your response at that time are more sub- ject to question. w A momentary pause. After being asked a question, a momentary pause is necessary not only for the deponent to reflect and be certain the question being asked is under- stood, but also to allow time for the

~ ~ ~ ~~~

Summer 1986

dtp)nent’s attorney t o raise m y objections. VC’hcn your attorney objects to :I question, refr‘iin from answering further until the matter has been resolved. Your attorney \z i l l have the objection noted for the record a i d u.ill then direct you as to whether a n answer is required. You can be certain that you will have unple opportunity to respond to the questions asked.

RricJf a n s w r s . Always answer ;I

question as briefly a s possible. I f yes o r no will suffice, then no further information should be given in response to the question. For exam- ple, if asked, “Have you discussed this case with anyone else?” the appropriate and truthful answer would be “yes,” (assuming, in fact, that you had). However, often the tendency is to continue with further information: “Yes, I discussed the case with my supervisor and the attending physician.” The latter response gives the questioner much more information than asked for; furthermore, it may be information the questioner would not have thought to have extracted. Thus it is important not to volunteer any addi- tional information. Answer only the question asked. And remember that unless you are called as an expert for the specific purpose of rendering an opinion, you are not required to guess or speculate as to what the answer might be. Your responsibility is to answer the questions, not lec- ture on the finer points of a particu- lar issue. I always tell my clients that “I don’t know” or “I don’t remember” is a perfectly acceptable response (as long as it is truthful). rn Favorable facts. Do not qualify favorable facts. Strive to answer questions concerning favorable facts as definitely as possible. Avoid such expressions as “I think” or “I guess” in your response. For example, the attorney for the plaintiff might ask the following question, “What did you do when you discovered Mrs. White lying unconscious on the floor?” In response, the primary nurse being deposed should respond, “I immediately called a code, and after the team arrived, I paged the attending physician.” This response conveys a sense of authority and definiteness that serves to increase credibility. Contrast that with the following: ‘I think I called a code and then-no, maybe I paged the attending physician and then called

Page 4: “Do you swear to tell the truth?”

t h c ccide, h i it re,ill\ didn’t nicitter hec.iuse the code teain m d th t

i c i ~ i i a - r ived .it the his response dr‘in \

into question not oiil) the timing o f cert,iin cruci‘il eients, but the profes \ion,il integriti of the nurje.

Tt>ll the ttuth Often M hen ‘1

nurse receives A subpoena notif1 ing him o r her to ‘ippe‘ir for ‘I deposi- tion, the nurw tvpic‘ill) inquires, “Wh‘it shall 1 s‘iy?” M) stand‘ird response is, “Tell the truth.” E u g - germon i s untruthfulness. Jt is unnecessary and often hmnful to try to “improve” upon the facts of the ~‘ i se . Such conduct is invmably recognized by the opposing party who can later exploit any inaccuracy to its advantage. Furthermore, if at a subsequent time the judge or jury feel that you have exaggerated on one point, they may well surmise that you have exaggerated on other

point\ Undesirable results hai c been knoij 11 to occur bec‘iuse of ,in

unfortun‘ite tciidenib t o exaggei ‘ite

bi A pitietit who had undergone chemotherapy and dei eloped ‘in allergic. rea~tion due to extr‘i\ .ts,ition \I hich eventually necessitated skin graft5 The case turned on the experience of the nurse cidministcring the chemotherapy. &’hen .isked hoi\ many patients to u hom she had dniinistered such treatments, the nurw responded ‘‘oper 100.” The truth of the matter h a s while she had assisted in approximately 75 treatments, she had in fact administered fewer than 20. This obvious effort to appear more experienced then she was coin- promised the ability of the defense counsel to prove that even though the number of treatments was limited, the nurse’s technique was

t o r example, ‘i clnim \\ ‘15 bt ought

superh .itid cotild not li,i\e con tributed to the hid rewilt.

Testifying at trial

All of the previous suggestions cllso apply to te5tifying ;it trial. The major difference is, of course, that you will be in a courtroom and in addition to the attorneys and par- ties, a judge and jury will be present. Also, members of the general public, the press, and other interested parties may be present. However, the nature of the ques- tioning is the same. Whoever calls you as a witness will have the first opportunity to ask questions. After- wards, the opposing party’s attorney will have the opportunity to ques- tion you. By being prepared and fol- lowing several simple guidelines, you can present a professional and credi- ble image. rn

One state’s tort reform legislation in other states limiting in the law increases the plaintiffs legislation- a commentary The following article was written b y Sarah Klevit, assistant counsel of the legal office, Group Health Coopera- tive, Puget Sound, Seattle. Decreased availability and increased costs of liability insurance having reached crisis proportions in Washington state, the legislature, much to the chagrin of the Washing- ton State Trial Lawyer’s Association, passed sweeping tort reform legisla- tion effective August 1 , 1986. While proponents of tort reform also hope to pass limitations on attorney fees, the new law only authorizes courts to review the reasonableness of fees.

The most significant portions of the legislation include changes in laws pertaining to the following:

Joint and several liability. Liability among multiple tort feasors is now several only, except in the following circumstances: -Tort feasors acted in concert or as agents/servants of others. -Plaintiffs were not at fault. -Causes of action arose from (1) hazardous waste or solid waste dis- posal sites, (2) tortious interference with contracts or business relations, or (3) manufacture of fungible products in a generic form with no clearly identifiable shape, color, or mark.

Limitations on noneconomic damage a u w d s . Unlike tort reform

~~ ~~~ ~~~ ~~~~~~

5 Perspectives in Hospital Risk Management

noneconomic damage awards to a flat dollar amount for all plaintiffs, the Washington law sets a limit determined by multiplying .43 by the average annual wage and life expectancy of the person incurring the damages. This works out to a limit from approximately $1 17,000 to $573,000, depending upon the individual’s age. w Statute of limitations. The statute of limitations for tort actions is no longer tolled for minors, as the knowledge of the custodial parent or guardian is now imputed to a minor. The statute is tolled, however, upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have therapeutic diag- nostic purpose or affect. rn Mandated periodic payments. Where future economic damages of $100,000 or more are awarded, the court or arbiter must now enter a judgment for periodic payment of the damages in whole or in part at the request of a party.

Negligence per se. With the exception of laws or regulations relating to electrical fire safety, the use of smoke alarms, or driving while under the influence of intox- icating liquor or drugs, a breach of a duty imposed by a statute or regu- lation is no longer considered negli- gence per se. Rather, the fact of the breach may be considered only as evidence of negligence. This change

Summer 19 8 6 ~~~ ~ ~~~~~~~~~ ~~ ~

burden of proof in a negligence case. rn Physician-patient privilege. In per- sonal injury and wrongful death suits, a claimant must elect to waive the physician-patient privilege within 90 days of filing or be estopped from putting his or her mental or physical condition and issue at trial. Waiver of the privilege for one phy- sician and/or condition constitutes a waiver for all physicians and/or all conditions.

The tort reform legislation, lob- bied heavily by business interests, was hotly contested by trial lawyers and consumer interest groups. Both proponents and opponents of the law agree that there are still several problems that must be worked out through legislative amendment and/or the court system. It is antici- pated that some aspects of the legis- lation will be tied up in the court system for years. The burning ques- tion remains whether this legislation would have any impact on the sky- rocketing costs of liability insurance. Opponents of the law point to other states that have enacted tort reform and assert that the laws have had no effect on premiums. The answer to this question will come in time. The legislation directs the state insurance commissioner to submit a report to the legislature in 1991 describing the effect on insurance rates, availability of insurance coverage, and impact on the civil justice system. rn

~~ ~ ~~~ ~~~ ~ ~~~~~ ~~ ~~~~~~~~ ~ ~