When Silence Isn't Golden: The Use of Adverse Inferences in Healthcare Enforcement Actions

The Fifth Amendment’s protection against government compulsion to answer official questions when the answers may subject the speaker to future criminal prosecution applies across “any . . . proceeding, civil or criminal, formal or informal.” Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). However, in Baxter v. Palmigiano, 425 U.S. 308 (1976), the U.S. Supreme Court endorsed the “prevailing rule” that an adverse inference may be made by a fact finder in civil cases when the surrounding circumstances would normally compel an innocent person to respond to the allegations brought against him. The inference made by the fact finder is that the withheld information would have been unfavorable to the plaintiff. The holding was consistent with an acknowledgment made by the Court several decades earlier that “silence is often evidence of the most persuasive character.” United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153 (1923).