Witness Immunity and a Tattletale Treater

• Jurisdiction: Rhode Island,United States
• Citation: Vol. 49 No. 3 Pg. 0015
• Pages: 0015
• Publication year: 2001

Rhode Island Bar Journal Volume 49.

49 RI Bar J., No. 3, Pg. 15 (January, 2001). Witness Immunity and a Tattletale Treater

Witness Immunity and a Tattletale Treater

BY EDWARD JOHN MULLIGAN

Edward Mulligan formerly practiced law in Lincoln. He now resides in Hawaii and practices law with the civil division of the Office of the Attorney General

INTRODUCTION

It appears to be bedrock law, at least in the federal courts, that a witness in a court proceeding is entitled to absolute immunity from a civil suit for his/her testimony given in a civil proceeding.(fn1) Indeed, absolute witness immunity was well-established in English common law.(fn2) Rhode Island seemingly stands in the absolute immunity camp.(fn3)

In a federal case arising in Indiana, Giffin v. Summerlin,(fn4) the plaintiff sought to carve-out a confidentiality immunity exception. The issue in Giffin concerned a treating physician who "disclosed" claimed confidential information to the adversary and/or violated the work product privilege, before his deposition was taken as a witness in the prior litigation involving his patient, Giffin. The plaintiff had been treated by a "plastic" surgeon, Dr. Futrell, for facial surgery at a Pennsylvania hospital in 1981. Unfortunately, Giffin's facial appearance was disfigured by a complete paralyzation of the left center of his face, following the surgical procedure by Dr. Futrell (the defendant in the Pennsylvania case).

Seeking to "save face," Giffin found a reconstructive surgeon in Indiana, Dr. Summerlin (the defendant in the subsequent federal court case in Indiana). In the space of two years (1982 to 1984), Giffin underwent five "facials" under Dr. Summerlin's surgical treatment. The surgeries resulted in an improved appearance.

During Giffin's treatment with Dr. Summerlin, Giffin's medical malpractice lawyer wrote to the good doctor and asked him to respond to five questions concerning the merits of a malpractice action against the prior surgeon, Dr. Futrell.(fn5) Between Giffin's five surgeries, Dr. Summerlin promptly responded to the "malpractice quinque-questionnaire" concerning the deviation or lack of deviation as to surgery and whether or not there was damage to the parotid gland (a gland that secretes saliva). The responses were to the effect that there was no negligence at all and the surgery was in accord with standards.

In December of 1983, notwithstanding Dr. Summerlin's views as to the lack of malpractice, Giffin's attorney brought a malpractice lawsuit against Dr. Futrell and the hospital in the Pennsylvania state court. The case bleaked-on for almost a decade. For the first seven years or so of the case, the tell-tale report of Dr. Summerlin, apparently, laid in slumber in counsel's file, its existence unbeknown to opposing counsel.

In 1990, while the case against Dr. Futrell was still alive, Dr. Futrell's counsel obtained an authorization for medical records from the plaintiff. Armed with Giffin's duly signed approval, Dr. Futrell's counsel sent the medical authorization(fn6) to Dr. Summerlin. Thereupon, defense counsel requested Giffin's medical records. The authorization was a "carte blanche" type of medical authorization. In accord with Giffin's sweeping medical authorization, Dr. Summerlin forwarded the medical records in his possession to defense counsel. The response from Dr. Summerlin, to plaintiff's bane, also included the "malpractice questionnaire" of November 1983 by plaintiff's counsel to Dr. Summerlin and Dr. Summerlin's response thereto.

In June of 1991, after the questionnaire response was forwarded to defense counsel and shortly before trial was scheduled for the facial malpractice case, a deposition of Dr. Summerlin was taken in Indiana. In that deposition, according to Giffin, Dr. Summerlin agreed to testify only about the five surgeries that he performed on Giffin. It was agreed that Dr. Summerlin was not to be deposed about any possible malpractice negligence on the part of Dr. Furtell. In fact, there were two depositions taken of Dr. Summerlin in Indiana; the first was taken by Giffin's counsel and the second was taken by Dr. Furtell's counsel. Counsel for each side was present at both depositions.

However, in contraposition to the pre-deposition agreement, the first deposition of Dr. Summerlin on cross-examination went beyond the five surgeries. On cross-examination, Dr. Summerlin testified that the facial procedure employed by Dr. Furtell was an accepted method and was performed within the standard of care. The second deposition was conducted by defense counsel. At the second deposition of Dr. Summerlin, without objection on any basis...