The Dead Man’s Statute is “Dead” in Wrongful Death Cases Involving Medical Malpractice

posted on February 25th, 2009 in Statute of Limitations, Tolling Doctrines, Privilege, Dead Man's Statute, Wrongful Death, Discovery Rule by clint
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In Holliman v. McGrew, 2009 WL 302276 (Tenn.Ct.App.), the plaintiff filed a wrongful death action brought under a theory of medical malpractice. The trial court granted Defendants’ motion for summary judgment, finding that Plaintiffs filed their complaint after the one-year statute of limitations had expired. Defendants pointed to portions of Plaintiffs’ depositions in which Plaintiffs recounted conversations with the Decedent about his condition, showing that the Decedent “discovered” the action more than one year before suit was filed. A relative testified that the Decedent stated that “Dr. McGrew was likely a good doctor but in his case he failed to see the reaction to the medication until it was too late.” The Decedent told another relative that he had been permanently damaged as a result of the medication. The Decedent went further to state what he thought of the Defendant:

I want you to hold Dr. McGrew accountable for what he has done. I trusted him and he dropped the ball and I want to make sure that you hold Dr. McGrew accountable so that he pays attention so that this doesn’t happen anymore.

Dr. Holliman testified that the Decedent stated that “he was really disappointed in a lot of things, but he was disappointed most with the knowledge that he had by then that this drug had caused this problem.” Finally, the Decedent himself wrote in a journal: “This is all from the heart drug … I may have permanent heart damage .”

Plaintiffs challenged the admissibility of their own testimony as it concerned conversations with the Decedent. The statements were recorded in a family journal and subsequently recounted by the plaintiffs during discovery depositions. Plaintiffs’ sole objection to the use of the testimony is that it is barred by the Dead Man’s Statute.

The Court of Appeals began its review with TENN. R. EVID. 601 that “[e]very person is presumed competent to be a witness except as otherwise provided in these rules or by statute.” The Dead Man’s Statute is one exception to the presumption of competence:

In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or ward, unless called to testify thereto by the opposite party. If a corporation is a party, this disqualification shall extend to its officers of every grade and its directors. TENN.CODE ANN. § 24-1-203. In a wrongful death action, the statutory beneficiary is the real party in interest; the recovery becomes a part of the estate of the deceased. An administrator or personal representative may institute a wrongful death action. The Court of Appeals “assumed” that the Dead Man’s Statute was applicable in the action between the parties. Here, however, the Plaintiffs were asked to testify about their conversations with the Decedent by the Defendants-the opposite party. Therefore, the testimony was admissible as the Plaintiffs were “called to testify … by the opposite party.” Finally, the statute seeks to exclude interested parties from giving self-serving accounts of their conversations with the deceased. Here, the Plaintiffs were not deprived of the Decedent’s version of the events. The statute aims to protect representatives from attacks by other parties; it does not permit representatives to avoid the consequences of their own damaging testimony. Therefore, the Court of Appeals agreed with the trial court’s finding that the Decedent’s statements and journal were admissible.

My take on the Holliman case is that The Dead Man’s Statute is dead to us who prosecute wrongful death cases due to medical malpractice. The Court of Appeals all but said this in Holliman, even while assuming that the Dead Man’s Statute applied to the case. This means that you must know everything the Decedent says to relatives and friends about his medical condition and get his diary or journal.

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