## Facts

- Richard L. Carpenter, M.D., a board-certified otolaryngologist, performed surgery on Patricia Merchand to address a problem involving her right submandibular salivary gland.
- After surgery, Merchand experienced tongue-related dysfunction consistent with denervation, including difficulty swallowing, frequent tongue-biting, excess saliva on one side of her mouth, and spitting while speaking.
- Merchand testified that she reported these symptoms to Carpenter at multiple follow-up visits, but Carpenter allegedly reassured her that she was healing normally.
- Carpenter’s medical records did not document the tongue-related complaints, and the defense relied on the chart’s silence to challenge Merchand’s account of what she reported and when.
- Merchand sued Carpenter for medical malpractice, alleging negligent injury to the hypoglossal nerve during the procedure and related harm.
- At trial, Merchand sought to introduce evidence from prior medical-malpractice matters involving Carpenter, including proposed testimony that Carpenter had previously declined to record patients’ post-surgical complaints about symptoms and complications.
- The trial court excluded the proffered “other acts” evidence as inadmissible character evidence, among other evidentiary rulings.
- The jury returned a verdict of no cause of action for Carpenter, and judgment entered for the defense.
- Merchand appealed, challenging the exclusion of the other-acts evidence bearing on Carpenter’s charting practices and credibility.

## Issues

1. Whether the trial court abused its discretion by excluding other-acts evidence—offered to explain the absence of charted complaints and to impeach Carpenter—showing that Carpenter had previously failed to document post-operative complaints in other malpractice matters.
2. If the exclusion was error, whether it affected substantial rights such that a new trial was required.

## Decision

- The Michigan Court of Appeals reversed and remanded for a new trial.
- The majority held that the trial court abused its discretion by excluding the proposed other-acts evidence concerning Carpenter’s alleged practice of not recording patients’ post-operative complaints.
- The majority concluded the error was not harmless because credibility and the meaning of the medical record’s silence were central to the case.
- A dissent would have affirmed, reasoning that the excluded material functioned as prohibited propensity evidence and created a serious risk of unfair prejudice and collateral “mini-trials” about other cases.

## Legal Principles

- A trial court’s evidentiary rulings are reviewed for abuse of discretion; reversal is warranted when an evidentiary error affects substantial rights.
- Evidence of other acts is not admissible to prove character or conduct in conformity, but it may be admissible for a proper, non-propensity purpose when it bears on a material, disputed issue.
- Under Michigan’s relevance and balancing rules (including MRE 401 and MRE 403), relevant evidence may be excluded if the danger of unfair prejudice, confusion, or undue delay substantially outweighs probative value.
- When a party relies on a medical record’s omissions to challenge a witness’s testimony, evidence explaining why complaints may not appear in the chart can be highly probative and may support impeachment on a contested factual question.
- Courts should consider whether potentially prejudicial other-acts evidence can be presented in a limited way, with appropriate constraints, rather than excluded categorically.

## Conclusion

In this 2016 unpublished decision, the Michigan Court of Appeals held that the trial court’s exclusion of other-acts evidence about Dr. Carpenter’s alleged pattern of not charting post-operative complaints improperly restricted Merchand’s ability to address the defense’s reliance on silent medical records and to test Carpenter’s credibility on a disputed, case-defining point; because the error was not harmless, the court reversed the defense verdict and remanded for a new trial.


Merchand v. Carpenter, 2016 Mich. App. LEXIS 1462 (2016)