Tort/Negligence – Medical Malpractice – Evidence of Bias

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The trial court erred by refusing to admit evidence regarding an office manager’s sexual relationship with a doctor, her salary, and the free cosmetic procedures she received from the doctor.

We reversed the court of appeals and remanded to the court of common pleas for a new trial.

Jeane Whitfield brought a medical malpractice action against Dr. Dennis Schimpf and Sweetgrass Plastic Surgery, LLC—Schimpf’s medical practice—alleging Schimpf was negligent in performing breast augmentation-mastopexy surgery on Whitfield and he and other Sweetgrass employees were negligent in rendering post-operative care. The jury returned a verdict in favor of Schimpf and Sweetgrass, and the court of appeals affirmed. We granted reviewed the court of appeals’ decision affirming the trial court on two evidentiary rulings: (1) excluding evidence of bias Whitfield offered to impeach the testimony of Sweetgrass’ office manager, Vicky Tolbert, about her sexual relationship with Schimpf and his wife, the salary she was paid by Sweetgrass, and free cosmetic surgical procedures she received from Schimpf; and (2) admitting testimony from Schimpf’s expert witnesses based in part on their Rule 35, SCRCP, examinations of Whitfield. The court of appeals was correct to affirm on the second issue but erred in affirming the exclusion of the evidence of bias.

Among other things, Whitfield argued the court of appeals erred in determining she was required to proffer Tolbert’s testimony. We agreed. There is nothing an actual proffer of testimony would have added to the trial court’s understanding of whether the evidence was relevant and admissible. Thus, no specific proffer of testimony was required. Tolbert’s testimony about her sexual relationship with Schimpf, the compensation she received from him, and the complementary cosmetic procedures he performed on her made the existence of Tolbert’s bias towards Schimpf more probable. While this evidence has no direct bearing on the medical care or treatment Whitfield received from Sweetgrass, it is relevant for the purpose of assessing Tolbert’s credibility. Thus, the proposed testimony was relevant under Rule 401 and admissible under Rule 402.

The trial court misunderstood its role in evaluating the admissibility of evidence. A trial court may not exclude evidence of bias because the court believes the witness is not biased, nor evidence of credibility because it thinks the witness has not been untruthful; that is for the jury to determine. The trial court abused its discretion in excluding the evidence. Schimpf nevertheless argued the testimony would have been excluded even under a proper Rule 403 analysis because it was unfairly prejudicial. We disagreed the evidence should have been excluded as to each category of evidence except the sexual relationship with Schimpf’s wife.

As to Tolbert’s sexual relationship with Schimpf, we saw some danger of unfair prejudice in the fear the information about Schimpf’s extramarital relationship with a staff member would paint Schimpf’s character in a negative light and distract the jury from the central issue in the case—medical negligence—and unfairly influence the jury to make its decision on some basis other than whether Schimpf breached the applicable standard of medical care. Given the high probative value of a longstanding romantic relationship with the defendant as a source of potential bias, however, we found the probative value was not substantially outweighed by the danger of unfair prejudice. Thus, it was error to exclude the evidence of Tolbert’s sexual relationship with Schimpf under Rule 403.

Our analysis differed, however, as to evidence of Tolbert’s sexual relationship with Schimpf’s wife. First, the record does not indicate that the evidence of Tolbert’s relationship with Schimpf’s wife adds any additional probative value beyond the fact Tolbert was in a sexual relationship with Schimpf himself. As far as we could tell, therefore, the probative value of this evidence in this case is zero. As to unfair prejudice, the fact Schimpf was involved in a three-way relationship with both his office manager and his wife is a bizarre circumstance that poses a substantially increased risk the jury may be distracted from the central issues in the case. The lack of additional probative value in the evidence balanced against the significant danger the jury will judge Schimpf by his unconventional and inappropriate sexual conduct rather than by whether he breached the applicable standard of care causes us to agree with the trial court that evidence of Tolbert’s sexual relationship with Schimpf’s wife should have been excluded.

Because Tolbert’s testimony did not relate directly to the central issue in the case— medical negligence—we turned to the question of whether the trial court’s error in excluding evidence of her bias requires that we reverse and grant Whitfield a new trial. There was a credibility contest between Tolbert and Whitfield, and Whitfield was prejudiced by not being allowed to introduce evidence that Tolbert may have been biased towards Schimpf.

Reversed and remanded.

Whitfield v. Schimpf (Lawyers’ Weekly No. 010-069-25, 14 pp.) (John C. Few, J.) Appealed from Charleston County Circuit Court (Bentley Price, J.) Jesse Sanchez, of The Law Office of Jesse Sanchez; Daniel Scott Slotchiver and Andrew Joseph McCumber, of Slotchiver & Slotchiver, LLP; Brent Souther Halversen, of Halversen & Halversen, LLC, all of Mount Pleasant, all for Petitioner; Todd W. Smyth and Allie Aleece Maples, of Smyth Whitley, LLC, of Charleston, for Respondents. South Carolina Supreme Court