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.

The death or unavailability of a key witness prior to trial could have a profound effect on the outcome of the case at trial, as many trial attorneys know from personal experience. From both defense counsel's and the physicians' perspective, the appeal of a non-party deposition is that physicians who may be difficult to schedule for court appearances may be deposed without inconvenience to their patients or themselves. If for reasons of infirmity, age, medical condition, career changes, or other factors, a physician witness may not be available at the time of trial, the transcript of the “perpetuation deposition” will always remain available. With all of the factual foundation testimony in admissible form (the executed deposition transcript), there is far less uncertainty as to whether the basis for expert testimony will be available to support the contentions of a party at trial.

Securing the Non-Party Deposition

Most non-party treating physicians have plenty to occupy their time and cannot be expected to be anxious to spend an afternoon with several strangers from the legal profession whose divergent interests and probing questions can make for an uncomfortable encounter. Although a subpoena may be used to overcome the witness' reticence, the physician can usually be convinced that submitting to a deposition in familiar surroundings at a convenient time is preferable to the vagaries of a live appearance at trial (where travel, delays, and scheduling issues can create far more inconvenience). If the non-party witness comprehends the difference between changing a suddenly inconvenient deposition date and changing a scheduled court appearance for a jury trial, cooperation can be obtained more easily.

Paying the witness a reasonable amount to compensate for lost time from work would also help secure cooperation, provided it does not create a basis for an argument that the payment biased the witness in favor of the proponent of the testimony. In this regard, the bar associations of some states have promulgated specific guidelines for the compensation of physicians who meet with defense counsel and give testimony at a deposition or at trial. Guidelines issued by the Mississippi Bar, for example, state that a physician is entitled to charge “fair and reasonable compensation” for time expended in conference or consultation with the attorney and in preparation for that discussion, “provided, however, that the charges should be consistent with the customary ones made by the physician in his practice.” Fair and reasonable compensation for depositions and court appearances is likewise permitted. The Mississippi Bar, Professional Guide for Attorneys and Physicians, Article IV, Compensation of Physician, www/msbar.org/2_professional_guide_for_attorneys_and_ physicians. Moreover, many professional liability insurers are willing to provide counsel for a non-party physician at his or her deposition. This may be a particularly effective means of persuading a doctor to appear voluntarily for a deposition in cases where the non-party and the defendant share the same insurer.

Foregoing the Deposition

Where there is reason to expect that the witness will be available for trial, and the party favored by the testimony feels that for tactical reasons it is preferable to produce a live witness, it may be counterproductive to secure the deposition of that witness prior to trial (unless, of course, a deposition is required or routinely taken by custom and practice in the particular jurisdiction). This scenario will raise issues concerning what disclosure has to be made in advance of trial with regard to the witness, in order to ensure that the witness can testify in all contemplated areas at trial; and to what extent the witness can give expert opinion testimony.

The non-party physician is a hybrid between a fact witness, who testifies based on personal observation, and an expert witness, who is permitted to state opinions because of training and experience in an area which is beyond the knowledge of the average juror. With regard to disclosure, although New York, for example, requires fairly explicit disclosure in advance of an expert's testimony (New York Civil Practice Law & Rules ' 3101(d)), the courts there have made it very clear that the testimony of a treating physician is not to be precluded due to the absence of an expert response for that witness. See, e.g., Andrew v. Hurh, 34 A.D.3d 1331 (4th Dept. 2006), lv den 8 N.Y.3d 808 (2007). In most states, a non-party treating physician is permitted to give expert opinion testimony regarding the standard of care.

The litigant has to weigh the options carefully in this area before deciding how to proceed. A non-party treating physician makes an attractive witness because he or she is presented as one who has the perspective of an independent professional whose sole focus has been upon rendering care to the injured party. If that witness becomes a paid expert for any of the parties to the case, there is a chance that the jury will see the witness as having less of the desired independence and attractiveness. Furthermore, if the non-party treating physician does the job of the party's expert witness thoroughly enough, there could be an argument that the subsequent expert's testimony would be cumulative and should be precluded.

Producing the Non-Party Physician at Trial

Most non-party physician witnesses who receive a subpoena for trial consult an attorney regarding compliance. More often than should be the case, this conversation results in the attorney for the witness calling the attorney who served the subpoena and suggesting that the witness has no information helpful to the litigant; the attorney for the litigant will not be happy with the witness's testimony; the witness will not speak with the litigant's attorney prior to trial; and the witness will only answer those questions which he is directed to answer by the trial court, making it very obvious that the witness is testifying against his or her will. There are legitimate limits to what can be required of a subpoenaed witness, but the attorney for the witness has ethical duties which should preclude this type of telephone call.

Although it is not easy to find clearly written precedent on what has occurred to attorneys for witnesses who place their obligation to the witness above the interests of the tribunal, it does not strain the imagination to see where this might be sanctionable conduct. Rarely would the attorney for the witness know the litigant's case well enough to correctly conclude that the testimony would be less than helpful to the litigant. The trial of a lawsuit is expensive and often unpredictable, and it should be a rare trial attorney who subpoenas a witness to give testimony where that witness will not provide material evidence on the points in issue. The ends of justice are not served by the witness who attempts to evade the responsibility to testify, and worse can be said of the attorney who gives legal assistance to that evasion.

The Role of the Trial Witness

Only in an unusual case would the non-party physician's testimony supplant the need for expert medical testimony on the part of the litigant. That being the case, careful attention is needed to define the roles of the treating physician and the expert witness. There is a spectrum of possibility, but in each situation the distinctions remain important to preserve.

The non-party physician may be needed to provide solely factual testimony where there is a dispute among the parties on one or more subjects, and the history taken by the witness or some aspect of his or her observations or treatment helps to resolve the conflict. Examples include history, medications, diagnoses, and treatments which are denied at trial but documented in the records and memory of the witness. There may be a mixed issue of factual observation and medical expertise where the non-party treating doctor has acted in a manner that supports the litigant's contention. Examples include decisions (and the bases therefor) by contemporaneous treating physicians who did not perform testing which the defendant was allegedly obligated to perform. There may also be circumstances in which the standard of care at the time and place of treatment is in issue, and the director of the hospital service testifies on a pure standard-of-care issue with marginal connection to the patient.

The testimony of physician witnesses from differing specialties is not cumulative even where it touches upon the same subject matter, since each can bring a different perspective to bear on the issues.

However, the trial court and jury are all presumably intelligent people who do not need multiple witnesses to make the same points. Here, it is useful to orient the non-party physician witness to what occurred in the course of the treatment in which the witness participated, and allow the expert witness to speak to the standard of care and give the causation opinions. This allows the non-party physician to draw on the strength of his or her knowledge of the patient and the precise environment in which the treatment was rendered. The expert witnesses have less insight here, and their strength lies in their qualifications as experts and the impartiality they can maintain precisely because they were not exposed to the same environment in which the treatment was rendered.

Conclusion

A well-balanced defense may require the participation of non-party treating physicians, and their presence and testimony at trial could communicate a legitimacy that is not conveyed by either the parties or their expert witnesses. Whether non-party physicians can advance the position of a litigant requires careful analysis by the trial attorney, who needs a solid basis, derived from the physicians' records and possibly ex-parte interviews, for that analysis.

John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg, a member of this newsletter's Board of Editors, is a partner practicing in the firm's New York office, where she is Head of the Appellate Department.

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.

The death or unavailability of a key witness prior to trial could have a profound effect on the outcome of the case at trial, as many trial attorneys know from personal experience. From both defense counsel's and the physicians' perspective, the appeal of a non-party deposition is that physicians who may be difficult to schedule for court appearances may be deposed without inconvenience to their patients or themselves. If for reasons of infirmity, age, medical condition, career changes, or other factors, a physician witness may not be available at the time of trial, the transcript of the “perpetuation deposition” will always remain available. With all of the factual foundation testimony in admissible form (the executed deposition transcript), there is far less uncertainty as to whether the basis for expert testimony will be available to support the contentions of a party at trial.

Securing the Non-Party Deposition

Most non-party treating physicians have plenty to occupy their time and cannot be expected to be anxious to spend an afternoon with several strangers from the legal profession whose divergent interests and probing questions can make for an uncomfortable encounter. Although a subpoena may be used to overcome the witness' reticence, the physician can usually be convinced that submitting to a deposition in familiar surroundings at a convenient time is preferable to the vagaries of a live appearance at trial (where travel, delays, and scheduling issues can create far more inconvenience). If the non-party witness comprehends the difference between changing a suddenly inconvenient deposition date and changing a scheduled court appearance for a jury trial, cooperation can be obtained more easily.

Paying the witness a reasonable amount to compensate for lost time from work would also help secure cooperation, provided it does not create a basis for an argument that the payment biased the witness in favor of the proponent of the testimony. In this regard, the bar associations of some states have promulgated specific guidelines for the compensation of physicians who meet with defense counsel and give testimony at a deposition or at trial. Guidelines issued by the Mississippi Bar, for example, state that a physician is entitled to charge “fair and reasonable compensation” for time expended in conference or consultation with the attorney and in preparation for that discussion, “provided, however, that the charges should be consistent with the customary ones made by the physician in his practice.” Fair and reasonable compensation for depositions and court appearances is likewise permitted. The Mississippi Bar, Professional Guide for Attorneys and Physicians, Article IV, Compensation of Physician, www/msbar.org/2_professional_guide_for_attorneys_and_ physicians. Moreover, many professional liability insurers are willing to provide counsel for a non-party physician at his or her deposition. This may be a particularly effective means of persuading a doctor to appear voluntarily for a deposition in cases where the non-party and the defendant share the same insurer.

Foregoing the Deposition

Where there is reason to expect that the witness will be available for trial, and the party favored by the testimony feels that for tactical reasons it is preferable to produce a live witness, it may be counterproductive to secure the deposition of that witness prior to trial (unless, of course, a deposition is required or routinely taken by custom and practice in the particular jurisdiction). This scenario will raise issues concerning what disclosure has to be made in advance of trial with regard to the witness, in order to ensure that the witness can testify in all contemplated areas at trial; and to what extent the witness can give expert opinion testimony.

The non-party physician is a hybrid between a fact witness, who testifies based on personal observation, and an expert witness, who is permitted to state opinions because of training and experience in an area which is beyond the knowledge of the average juror. With regard to disclosure, although New York, for example, requires fairly explicit disclosure in advance of an expert's testimony (New York Civil Practice Law & Rules ' 3101(d)), the courts there have made it very clear that the testimony of a treating physician is not to be precluded due to the absence of an expert response for that witness. See, e.g., Andrew v. Hurh , 34 A.D.3d 1331 (4th Dept. 2006), lv den 8 N.Y.3d 808 (2007). In most states, a non-party treating physician is permitted to give expert opinion testimony regarding the standard of care.

The litigant has to weigh the options carefully in this area before deciding how to proceed. A non-party treating physician makes an attractive witness because he or she is presented as one who has the perspective of an independent professional whose sole focus has been upon rendering care to the injured party. If that witness becomes a paid expert for any of the parties to the case, there is a chance that the jury will see the witness as having less of the desired independence and attractiveness. Furthermore, if the non-party treating physician does the job of the party's expert witness thoroughly enough, there could be an argument that the subsequent expert's testimony would be cumulative and should be precluded.

Producing the Non-Party Physician at Trial

Most non-party physician witnesses who receive a subpoena for trial consult an attorney regarding compliance. More often than should be the case, this conversation results in the attorney for the witness calling the attorney who served the subpoena and suggesting that the witness has no information helpful to the litigant; the attorney for the litigant will not be happy with the witness's testimony; the witness will not speak with the litigant's attorney prior to trial; and the witness will only answer those questions which he is directed to answer by the trial court, making it very obvious that the witness is testifying against his or her will. There are legitimate limits to what can be required of a subpoenaed witness, but the attorney for the witness has ethical duties which should preclude this type of telephone call.

Although it is not easy to find clearly written precedent on what has occurred to attorneys for witnesses who place their obligation to the witness above the interests of the tribunal, it does not strain the imagination to see where this might be sanctionable conduct. Rarely would the attorney for the witness know the litigant's case well enough to correctly conclude that the testimony would be less than helpful to the litigant. The trial of a lawsuit is expensive and often unpredictable, and it should be a rare trial attorney who subpoenas a witness to give testimony where that witness will not provide material evidence on the points in issue. The ends of justice are not served by the witness who attempts to evade the responsibility to testify, and worse can be said of the attorney who gives legal assistance to that evasion.

The Role of the Trial Witness

Only in an unusual case would the non-party physician's testimony supplant the need for expert medical testimony on the part of the litigant. That being the case, careful attention is needed to define the roles of the treating physician and the expert witness. There is a spectrum of possibility, but in each situation the distinctions remain important to preserve.

The non-party physician may be needed to provide solely factual testimony where there is a dispute among the parties on one or more subjects, and the history taken by the witness or some aspect of his or her observations or treatment helps to resolve the conflict. Examples include history, medications, diagnoses, and treatments which are denied at trial but documented in the records and memory of the witness. There may be a mixed issue of factual observation and medical expertise where the non-party treating doctor has acted in a manner that supports the litigant's contention. Examples include decisions (and the bases therefor) by contemporaneous treating physicians who did not perform testing which the defendant was allegedly obligated to perform. There may also be circumstances in which the standard of care at the time and place of treatment is in issue, and the director of the hospital service testifies on a pure standard-of-care issue with marginal connection to the patient.

The testimony of physician witnesses from differing specialties is not cumulative even where it touches upon the same subject matter, since each can bring a different perspective to bear on the issues.

However, the trial court and jury are all presumably intelligent people who do not need multiple witnesses to make the same points. Here, it is useful to orient the non-party physician witness to what occurred in the course of the treatment in which the witness participated, and allow the expert witness to speak to the standard of care and give the causation opinions. This allows the non-party physician to draw on the strength of his or her knowledge of the patient and the precise environment in which the treatment was rendered. The expert witnesses have less insight here, and their strength lies in their qualifications as experts and the impartiality they can maintain precisely because they were not exposed to the same environment in which the treatment was rendered.

Conclusion

A well-balanced defense may require the participation of non-party treating physicians, and their presence and testimony at trial could communicate a legitimacy that is not conveyed by either the parties or their expert witnesses. Whether non-party physicians can advance the position of a litigant requires careful analysis by the trial attorney, who needs a solid basis, derived from the physicians' records and possibly ex-parte interviews, for that analysis.

John L.A. Lyddane is a senior partner and trial attorney at Martin Clearwater & Bell. Barbara D. Goldberg, a member of this newsletter's Board of Editors, is a partner practicing in the firm's New York office, where she is Head of the Appellate Department.