Colorado Supreme Court rules conversation with late doctor is inadmissible in malpractice case

By Asia Mayfield | Oct 10, 2018

DENVER (Legal Newsline) – The Colorado Supreme Court used the state's Dead Man’s Statute to reverse an earlier ruling in a medical malpractice suit.

A plaintiff desired to use a conversation with a deceased individual as evidence. On Sept. 24, the Supreme Court Justices determined that the testimony was inadmissible.  

The court notes that: “Colorado’s ‘Dead Man’s Statute’ has served since 1870 to prevent a party in a case from offering self-serving uncorroborated testimony about statements made by a person who cannot come into court and confirm or rebut that testimony.”  

Respondent Alexander Clark filed a medical malpractice suit against the late Dr. Daniel Brookoff over allegations Brookoff negligently prescribed a prolonged course of medication to treat chronic pain and that the drug caused neurological and urological damage.  He wanted to use a conversation that he and his mother allegedly had with Brookoff as evidence to support his claims.  

The trial court ruled that the testimony was inadmissible and the appellate court reversed. 

“Because Dr. Brookoff had an insurance policy, the Court of Appeals asserted that any liability would be covered by insurance and thus would not diminish his estate. The court therefore declined to apply the Dead Man’s Statute,” the ruling stated.

The Supreme Court justices disagreed that insurance should play a role. The language of the statute was updated in 2013. 

The justices wrote that “we disagree with the court of appeals’ decision to impose limitations recently removed by the legislature. The mistake that the Court of Appeals appears to have made in limiting the application of the Dead Man’s Statute was in relying on case law interpreting a pre-amendment version of the law.” 

In 2013, the Dead Man’s Statute became applicable in all civil action situations. The effect of the complaint on the size of the estate has no bearing on the law. Clark cannot testify about the conversation he had with the deceased despite the fact that the deceased’s estate would be unharmed if he won his suit.

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