Recall that in Wilson v. IHC, 2012 UT 43 289 P.3d 369, the Utah Supreme Court reversed a jury verdict for the defense in a brain injury baby case for misconduct by defense counsel. That misconduct included inappropriate (if oblique) references to health insurance, as well as secret meetings with a radiologist involved in the care of the infant. The secret meetings by defense counsel with physicians not employed by IHC violated the duties of confidentiality set forth in Debry v. Goates, 2000 UT App 58, 999 P.2d 582 and Sorensen v. Barbuto, 2008 UT 8, 177 P.3d 614.
The Court remanded the case for a new trial and an evidentiary hearing on sanctions against IHC and defense counsel. Those sanctions might include exclusion of the offending physician from the retrial and monetary sanctions. In the words of the Court,
¶ 94 “Selection of an appropriate sanction requires fact-finding combined with the exercise of discretion. Such a decision is best made in the first instance by a trial court. Accordingly, we decline to sanction IHC and instead grant leave to the trial court to consider on remand whether sanctions are appropriate. In doing so, the trial court should consider argument from the parties regarding available and appropriate sanctions. In deciding whether sanctions are appropriate and the nature of any sanction it may impose, the court should consider, among other things, the willfulness of counsel’s conduct; the degree to which its impropriety was apparent at the time; the likelihood that evidence or testimony was altered as a result of the meeting; the prejudice to the opposing party; and the detrimental effect of the ex parte contact on the trial and the judicial process. Upon hearing from the parties, completing its fact-finding, and assessing the extent of IHC’s breach of duty, the trial court may exercise its “inherent power” and levy sanctions.”
289 P.3d at 395.
This medical malpractice personal injury hearing is now in its fourth day before Judge Christine Johnson in American Fork. (Here is the court docket.) It’s been a long time coming– the Supreme Court’s opinion came out three and a half years ago. I have to imagine that all involved are eager to get this resolved and behind them.
UPDATE (January 29th)- I spoke with counsel; the sanctions hearing is over. I have learned that the sanctions requested were not monetary, but rather striking the defenses and holding a jury trial simply on damages. That would be a nearly unprecedented step by Judge Johnson, although certainly within the court’s power. We shall see.
