In medical malpractice trials it is usually the case that the jury may not be told whether the doctor has medical malpractice insurance or not. It is also the case that juries are not informed of the defendant doctor’s previous findings of negligence or of settlement negotiations which may have preceded trial where the doctor’s insurance carrier may have offered substantial sums of money to settle the case and make it go away.

The idea behind literally keeping secrets from the jury is that such information being kept secret is prejudicial to the doctor and not relevant or material to whether the doctor acted negligently in the present pending case. The bedrock law behind all of this is that only relevant and material evidence is admissible in a court. In the eyes of the law relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Material evidence is evidence that has some logical link to the chain of what is being proven (the of consequence language above). So, this is the basis for the commonly known phrase that evidence must be both relevant and material to be allowed in court. It must be related to the action and be probative.

So the logic goes that telling the jury that a doctor has insurance to cover any award is not information (evidence) that the jury needs to hear to determine if the doctor was negligent or not. The logic continues that on the other hand by telling the jury this information the jury will be more inclined to find the doctor liable or impose larger awards since the doctor doesn’t have to pay them anyhow. And this makes some sense but it also seems to argue contra that this evidence then is relevant to the jury and should not be hidden.

It also makes sense that by not telling the jury this fact then the jury may logically do the opposite of the above and find the doctor not liable or impose smaller awards thinking the doctor has to pay personally.

As you see then the end result varies depending on who you are. The end result for the insurance company is that if you don’t tell the jury the doctor has insurance this tends to protect the insurance company from an award being imposed at all or from one that is too large given that the jury will think the doctor has no insurance. If you do tell the jury about insurance then the insurance company is exposed.

In the case of the doctor if you do not tell the jury about the existence of insurance then this tends to work in the doctor’s favor in that the doctor tends to escape a finding against his/her record. If you do tell the jury the insurance company pays anyhow and so it doesn’t matter to the doctor with regard to the money.

Finally, how does all of this effect the injured victim after all? Well, if the jury is not told then the victim is less likely to prevail. This helps the doctor. And as we said above if the jury is told then the insurance pays anyway thus helping the doctor.

So, at the end of the day the Rule is helping the insurance company when the jury is kept in the dark because the jury is instructed not to consider any evidence other than what they hear at trial. The Rule helps the victim if the jury is told and the doctor who did wrong is always helped.

One question that comes to mind is whether it is wise for the law to have an interest in helping a third party insurance company that isn’t part of the case over a victim or even over the doctor who is? The other question then is the relevancy issue. How can the law say on the one hand that whether a doctor has insurance or not is irrelevant to a case when the main purpose of this very law is to sway the jury into not giving the victim too much money or in other words help the doctor? How can the law favor protecting an uninvolved third party over an actual party? And how can the law favor one party over another? How is this fair to the victim when the victim is never getting extra protection from the law since all doctors have insurance?

Going even further it is pretty much never the case that a doctor does not have insurance. No hospital staff is going to allow such a doctor to be on staff because then the hospital would be liable for an award against that doctor. And many States require that a doctor show proof of insurance to be licensed to practice in the first place.

The end result is that 99% of the time then the insurance company and the doctor are protected by a Rule that purports to keep irrelevant evidence away from the jury when in fact that evidence is obviously known to be relevant. Perhaps it might be worth changing the Rule going forward abolishing the secreting of insurance coverage from juriest. We have to ask ourselves if it’s better policy to protect litigants over a non-involved insurance company and we then have to ask ourselves if a truly fair trial between the doctor and the victim is also better than an unfair one. At the end of the day each and every party to a trial should have a fair and equal chance under the Rules of Court.