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The Non-Party Physician
Last month, we began a discussion of the crucial role non-party physicians often play in medical malpractice cases. Here, we look at some methods for obtaining the evidence they possess.
Should the Non-Party Physician Be Deposed?
Where records of treatment and ex parte interviews have identified treating professionals who possess important evidence beyond what is available from admissible documents, counsel must consider how that evidence is to be preserved and presented to the trier of fact. Like ex parte interviews, the value and use of a non-party deposition will depend on the law of the jurisdiction where the action is pending. In New York, for example, the deposition of a licensed physician may be read to the jury at trial without proving that the witness is otherwise unavailable. In Tennessee, almost all testimony from non-party treating physicians takes the form of depositions, since practicing physicians, under Tennessee law, are exempt from having to comply with subpoenas to appear at civil trials, but may be subpoenaed to testify at depositions. Tenn. Cod Ann. ' 24-9-101.
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