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Evidence Code Analysis – Can a Medical Board Accusation be Used at Trial ?
The Horowitz office is a trial office. Horowitz, Russo and Kensok have over 500 jury trials as lead counsel.
We are often retained by other lawyers as consultants on complex evidentiary and trial issues. We do not defend medical malpractice actions but a question addressed to us by malpractice lawyers relates to the use by opposing counsel of a pending Medical Board Accusation. Can an Accusation that has been filed but not adjudicated be introduced at trial ?
Here is what we advise.
As a core rule, “[c]ourts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.” (Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090)
So the Accusation as a document can be evidence but its contents cannot be considered as true or untrue.
The fact that this complaint was filed may be an important fact even though a jury cannot consider whether the facts alleged are true (or false). For example, if a doctor lost records relating to a case there may be a question as to whether this was accidental or the deliberate destruction of evidence. The fact that an Accusation had been filed and served on the doctor prior to the destruction may be relevant if the destroyed files contained evidence relating to the current case.
The Accusation can be admitted in evidence with an instruction to the jury that the document can only be considered for a limited purpose. The jury is told that the Accusation’s contents cannot be considered for their truth but to only show provide potential insight into the doctor’s state of mind when he/she destroyed the files.
The mere existence, content and authenticity of the Accusation does not enable this court to determine the truth of allegations therein. (Glaski, 218 Cal.App.4th at p. 1090.)
Of course, unringing the bell is impossible so an objection under Evidence Code § 352 should be interposed. This objection admits that the evidence has some logical relevance but argues that it is so unfairly prejudicial that its probative value is outweighed by the undue prejudice.
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