Does a Hospital Have a Brady Obligation to Turn Over Exculpatory Evidence?

A recent decision by the United States Court of Appeals for the Tenth Circuit answered whether hospitals under state contract have Brady obligations. Established by the Supreme Court decision of Brady v. Maryland, a Brady obligation imposes on government agents the duty to turn over exculpatory evidence to a requesting criminal defendant.  373 U.S. 83, 83 S. Ct. 1194 (1963). In Tiscareno v. Frasier, the Tenth Circuit held that a hospital did not have an actionable Brady obligation because there was no clearly established constitutional obligation of the hospital to locate and disclose the exculpatory evidence to the criminal defendant. No. 13-4156, 2015 WL 735668, at *1 (10th Cir. Feb. 23, 2015).

Previously, a daycare worker was criminally prosecuted for child abuse after a child taken to a hospital was found to have symptoms of a brain injury. The daycare worker was found guilty in the initial trial, but was eventually granted a new trial. In the second trial, the daycare worker was ultimately acquitted after a pathology report, which indicated the injuries may have occurred prior to the child’s time at daycare, was shown to the jury. This pathology report had not been provided by the doctor or the hospital to the daycare worker for the first trial.

In Tiscareno, the daycare worker sued the treating doctor and the hospital for their failure to turn over the pathology report. The daycare worker argued that the hospital had a Brady obligation to turn over the exculpatory report which was not in the child’s medical file. She reasoned that the hospital should have been aware of the obligation because prior Supreme Court holdings included that “certain ‘arms of the state’ involved in an investigation” had Brady obligations as would a chemist employed by a police department. In rejecting that argument, the Tiscareno court found those decisions did not clearly establish that “a private hospital under contract with the state” had “an independent constitutional duty to locate and disclose medical evidence,” thus the hospital was entitled to qualified immunity on the Brady claim.

What the Tiscareno decision did not make clear is whether state contracted hospitals have a Brady obligation when assisting in a criminal prosecution. Future cases will again have to question whether every reasonable hospital in the position of the accused would have understood that the hospital had a Brady obligation. If a court finds that the Tiscareno decision “placed the statutory or constitutional question beyond debate,” then state contracted hospitals could be held liable for Brady violations, and thus liable for civil damages to the plaintiff under 42 U.S.C. §1983. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011). Going forward, state hospitals involved in criminal prosecutions should be aware of this possible liability.

Written by: Danielle Borel

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