Duty to Treat and Testify–The Role of Physicians in Litigation

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark

When a doctor treats you he/she must treat you as a whole. Unfortunately some medical treatments arise out of events that need to be litigated. In those situations your treating physician has a professional and legal duty to reasonably assist you in the litigation. This blog will concern Spaulding v. Hussain, a case from 1988 that is still relevant today. Mr. Spaulding was a self-employed scrap metal collector and was delivering scrap to Cumberland Recycling Corporation when he fell into a ditch. He was treated for serious orthopedic and neurological injuries and his primary physician was Dr. Hussain. Mr. Spaulding’s attorney met with Dr. Hussain about prospective testimony in court and because Dr. Hussain agreed to testify the attorney did not feel a need to use a subpoena. The attorney rescheduled the trial start date to accommodate Dr. Hussain leaving the country for an extended period. Then upon Dr. Hussain’s return his testimony was delayed a week from the agreed upon time in order to allow Dr. Hussain to catch-up on his affairs. The morning of the second agreed upon time for testimony by Dr. Hussain he didn’t show. The attorney finally was able to reach him and Dr. Hussain said he would arrive in the afternoon. Again Dr. Hussain did not show. Since cell phones didn’t yet exist the attorney waited next to the court phone the entire afternoon trying to reach Dr. Hussain. Finally the attorney was faced with three options:

  1. seek additional continuance
  2. move for mistrial
  3. accept inadequate $75,000 settlement

The attorney chose against the first option because he did not feel he had an adequate reason at this point to ask for another continuance. He chose against moving for mistrial because he felt it was unfair to all parties involved, including his client. He ultimately chose the third route with the intent to hold Dr. Hussain accountable for making his client whole. There were two main issues here. One was whether Dr. Hussain was liable from a contract perspective, and the second whether he was negligent. He was found liable on both grounds but this blog will focus on the latter. In order for someone to be negligence there must be a duty that is breached. The trial judge instructed this duty to the jury as “to treat a patient, to treat the whole patient unless otherwise agreed, and it can be otherwise agreed when a doctor treats an accident victim, the physician impliedly agrees to appear and testify on behalf of his patient on issues such as the nature, extent and causality of his patient’s injuries…this duty is tempered by reasonableness and fairness.” Medical emergencies may explain one absence from court testimony but if a doctor does not assist at all in a court proceeding he may be held liable for damage suffered by his patient as a result of the refusal. The jury found a causative breach by Dr. Hussain, and negligence by the attorney for accepting the settlement, assigning 55% and 45% liability respectively. The attorney moved for a judgment notwithstanding the verdict and 100 % of the negligence (after the plaintiff’s own negligence in falling in the ditch) was attributed to Dr. Hussain. This judgment was the subject of the appeal but for the purposes of this blog only the issue of physician duty to assist patients in litigation is relevant. The Court reasoned “although no reported decision in this jurisdiction has dealt with the physician’s duty to testify as part of his duty to treat his patient…we are satisfied that a treating physician has a duty to render reasonable required litigation assistance to his patient.” The Court did note that in lieu of live testimony a videotaped deposition pursuant to Rule 4:14-9 may be acceptable. This option might be particular acceptable for an E.R. physician or surgeon who cannot predict when they will be available for court.

It is also relevant to mention that the American Medical Association in their Opinion 9.07 on Medical Testimony said “as citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice.”

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