Listen to Your Doctor and Theirs: The Treating Physician as An Expert Witnesses

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1 The DelliCarpini Law Firm Melville Law Center Old Country Road fax Melville, NY John M. DelliCarpini Christopher J. DelliCarpini (admitted in NY and DC) Listen to Your Doctor and Theirs: The Treating Physician as An Expert Witnesses by Christopher J. DelliCarpini and John M. DelliCarpini Parties need not disclose treating physicians as expert witnesses under CPLR 3101(d), a trial court recently held, even where the physicians testimony goes to the ultimate issues of negligence and causation. The decision in Shecter v. Fuster, No /2004 (N.Y. County Feb. 24, 2011), shows how counsel can make the most of disclosure as to treating physicians and the consequences when they fail to do so. The Shecter Decision Ms. Shecter sued her late husband s cardiologist, Dr. Fuster, for medical malpractice. She alleged that Dr. Fuster negligently failed to perform certain diagnostic procedures on Mr. Shecter, which would have prevented Mr. Shecter s fatal heart attack. At trial the defense called a nonparty cardiologist, Dr. Damani, who had treated Mr. Shecter concurrently with the defendant. Dr. Damani testified that he also did not perform these procedures on Mr. Shecter in the relevant time period. He further testified, over objection, as to why Mr. Shecter s condition warranted neither procedure. The jury returned a unanimous verdict for the defense. Ms. Shecter then moved to set aside the verdict under CPLR Rule Ms. Shecter argued that Dr. Damani s testimony amounted to opinion evidence as to whether Dr. Fuster was right not to prescribe these procedures, though the defense never disclosed Dr. Damani as an expert. She also argued that the defense failed to produce Dr. Damani s records as required by Uniform Rule

2 The DelliCarpini Law Firm 2 The defense contended that treating physicians need not be disclosed under Section 3101(d). The defense, however, had done just that, listing Dr. Damani as a possible factual witness to Mr. Shecter s cardiac and pulmonary condition as it relates to the claims in this case. The defense also argued that Dr. Damani merely testified to his recollections of the care provided to Mr. Shecter and any impressions drawn from it. The court held that Dr. Damani did not need to be disclosed under Section 3101(d) because he did not offer expert testimony: He testified to his factual observations and conclusions. Dr. Damani s opinion on why he did not order the angiography was not based on the standard of care, but rather his own clinical impressions. The court added that Dr. Damani s testimony was not necessary to sustain the verdict, pointing to the testimony of the other defense experts. The court also found no violation of Uniform Rule since Dr. Damani never prepared a medical report and his records were already available to Ms. Shecter. Section 3101(d) and Treating Physicians The Shecter court supported its decision by citing Finger v. Brande, 306 A.D.2d 104 (1st Dept. 2003), which held that the treating physician, who was not disclosed as an expert, could testify as to the cause of the injuries even though he expressed no opinion as to causation. The court also cited Waters v. East Nassau Medical Group, 92 A.D.2d 893 (2nd Dept. 1983), which holds likewise. Is this, though, a distinction without a difference? How was Dr. Damani s treatment of Mr. Shecter relevant, if not to the ultimate issue of whether Dr. Fuster was negligent to treat Mr. Shecter the same way at the same time? And could a cardiologist testify to how he treated his patient and why without offering opinion as to why he was right to do so? In the First Department, such questions are academic. Under McGee v. Family Care Services, 246 A.D.2d 308 (1 st Dept. 1998), treating physicians may testify without disclosure under Section 3101(d), since disclosure with respect to treating physicians is governed by CPLR 3121 and 22 NYCRR , not CPLR 3101(d)(1). The Second Department has also held that a treating physician may give an expert opinion without prior notice pursuant to CPLR 3101(d)(i). See Malanga v. City of New York, 300 A.D.2d 549, 550 (2 nd Dept. 2002). The

3 The DelliCarpini Law Firm 3 Fourth Department also concurs. See Casey v. Tan, 255 A.D.2d 900, 901 (4 th Dept. 1998). The Third Department, however, holds that Section 3101(d) requires disclosure of any medical professional, even a treating physician or nurse, who is expected to give expert testimony. Norton v. Nguyen, 49 A.D.3d 927, 929 (3 rd Dept. 2008). The decision in Shecter raises several questions. Why was Dr. Damani not also named as a defendant, if he failed to prescribe the same procedures as Dr. Fuster? How could plaintiff s counsel not have known months in advance what Dr. Damani would say on the stand? If the defense truly meant for Dr. Damani to testify solely as a fact witness, then why did he appear in the 3101(d) disclosure at all? It is worth noting that after filing this motion, Ms. Shecter s counsel was suspended for misconduct in other cases. Ms. Shecter argued in her reply brief that her former counsel s own troubles may have distracted him during trial. The court, however, did not address this argument. Lessons of Shecter Lingering questions aside, the court appears to have correctly permitted Dr. Damani s testimony. And regardless of the circumstances, Shecter illustrates several lessons from which plaintiff s and defense counsel could benefit. Know the Records. If, as it appears, Dr. Damani s records were available to plaintiff s counsel, then he should have examined them as soon as possible. Had he done so, he would have known that the concurring treating physician whom she had not sued would corroborate the defense theory merely by relating his own impressions and treatment of the deceased. Perhaps the troubles of plaintiff s counsel explain these apparent lapses. In any event, counsel in personal injury cases must thoroughly examine treating physicians records as soon as possible. Particularly where there is a concurrent treating physician of such obvious relevance, those records might determine whether and how one brings suit or approaches settlement discussions. Talk To Your Doctors And Theirs. In Shecter the plaintiff stipulated to serve the defense with authorizations for Dr. Damani and others consistent with Arons v. Jutkowitz, 9 N.Y.3d 393 (2007), which permits defense counsel to interview treating physicians ex parte. Had plaintiff s counsel availed himself of that same opportunity, he might have learned in disclosure what

4 The DelliCarpini Law Firm 4 he did not learn until trial: that Dr. Damani, if asked, would support Dr. Fuster s treatment of Mr. Shecter. Of course, Arons does not require treating physicians to speak with anyone. If treating physicians will not speak with counsel a problem even plaintiffs can face then counsel should consider deposing these physicians. At the very least, it will lock in their testimony and avoid surprises like plaintiff s counsel apparently faced in Shecter. Resolve Evidentiary Issues Before Trial. Had Ms. plaintiff s counsel known that Dr. Damani would offer expert opinion, he could have moved pretrial to preclude such testimony absent disclosure. Of course, the court would likely have denied such motion for the same reason it denied the posttrial motion. Perhaps plaintiff s counsel could have crafted a more persuasive argument in a pretrial brief than in a sidebar colloquy. A pretrial motion would also likely have illuminated Dr. Damani s contribution to the defense. However the court may rule, it is generally advisable to resolve any evidentiary issues before trial; by the time the witness takes the stand, it may well be too late. Full Disclosure. It is unclear what the Shecter decision means when it mentions that the defense disclosed Dr. Damani under Section 3101(d) as a possible fact witness. Section 3101(d) only requires disclosure upon demand of expert witnesses, not fact witnesses. If Dr. Damani appeared at all in the defense s expert witness disclosure, then how could plaintiff s counsel have objected to Dr. Damani testifying as an expert had the good doctor even done so? And if Dr. Damani truly was not intended to testify as an expert, then why would he have appeared in an expert witness disclosure? Perhaps the defense merely disclosed Dr. Damani in an abundance of caution. Had they more fully disclosed the substance of Dr. Damani s anticipated testimony, however, they might have induced settlement or voluntary discontinuance. Even if other circumstances discouraged it in Shecter, such tactics might prove prudent in your own cases. The Future of Expert Witness Disclosure As Shecter shows, the First and Second Departments currently do not require disclosure of treating physicians as experts. Ms. Shecter has noticed her appeal, however, and as long as the courts of the Appellate Division are not of

5 The DelliCarpini Law Firm 5 one mind on this issue there remains the possibility that the Court of Appeals will one day resolve this split, changing the law in one or more departments. Regardless of the development of law under Section 3101(d), counsel have opportunities to discover all that treating physicians can contribute to the issues in dispute. Taking these opportunities can help us all litigate more efficiently and effectively. The authors are principals of The DelliCarpini Law Firm with offices in Melville, representing plaintiffs in personal injury matters. Reprinted with permission, Nassau County Bar Association.

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