MINNEAPOLIS, September 10, 2008—The Minnesota Court of Appeals on September 10 released an opinion on the O’Rourke v. Buckmaster case overturning a district court ruling that would have allowed an agreement for a corrective action between a health licensing board and a licensed professional to be used as evidence of liability in a subsequent malpractice civil trial.

The court’s opinion is a victory for physicians and other licensed health care professionals in the state. The MMA, the Minnesota Podiatric Medical Association, the American Medical Association and the American Podiatric Medical Association submitted a joint amicus brief in October, 2007, arguing that the district court erred when it ruled that an ACA is admissible evidence in a civil trial and saying that upholding the ruling would undermine the purpose and function of health licensing boards and adversely affect patient care in Minnesota.

Impressively, the court cited this amicus brief three times in its opinion.

The appeal court’s decision means that physicians who choose to enter into a non-disciplinary agreement for corrective action with the Board of Medical Practice, cannot have it used against them as evidence of their wrongdoing in a subsequent malpractice civil trial.

In the case, patient Sandra O’Rourke, filed a complaint pertaining to her care against Roy Wayne Buckmaster, D.P.M. with the Minnesota Board of Podiatric Medicine. The Board sent the complaint to the Attorney General for investigation. Following the investigation, the Board’s complaint review committee and Buckmaster settled the complaint with an ACA. Later, Sandra O’Rourke brought a medical negligence lawsuit against Buckmaster.

An ACA is a non-disciplinary agreement between the complaint review committee and the licensee who is the subject of the complaint. The issue that the Minnesota Court of Appeals addressed was whether an ACA is considered a “settlement” or a “compromise negotiation” between the health licensing board’s complaint review committee and the licensee.

The distinction is very important because “settlements” or “compromise negotiations,” are excluded under the Minnesota Rules of Evidence and cannot be admitted as evidence against the physician in a subsequent malpractice case. The district court held that ACAs do not constitute settlement agreements, and thus allowed the ACA between Buckmaster and the Board to be used as evidence against Buckmaster in the medical negligence proceeding.

The district court holding had the potential to negatively affect the complaint process used by all Minnesota health-related examining and licensing boards under Minnesota Statute Chapter 214, including the Board of Medical Practice.

The Minnesota Court of Appeals held that “Agreements for Corrective Action under Minnesota Statute § 214.103 between a health-related licensing board and a regulated person constitutes a settlement agreement within the meaning of the Minnesota Rule of Evidence 408. Therefore, Rule 408 precludes admission of such an agreement for corrective action as substantive evidence of liability in any subsequent civil action.”

The plaintiffs have 30 days to petition the MN Supreme Court for further review of this case. The MMA will continue to track this case.