Can a defense lawyer contact someone affiliated with your treating doctor’s medical group and use them as an expert witness against you? No, they cannot, according to a recent Appellate Division decision in Carchidi v. Iavicoli, 2010 N.J. Super. LEXIS 46, decided March 24, 2010.
In Carchidi, the infant plaintiff was born three months premature at Cooper University Hospital in 2000. He suffers from cerebral palsy which his parents contend was caused by doctors at Cooper who failed to administer steroids prenatally, and, take other measures to delay the plaintiff’s premature delivery. Beginning in 2001, the plaintiff began treating with a child neurology group at Children’s Hospital of Philadelphia (CHOP), primarily under the care of Dr. Dennis Dlugos. The infant has also had occasion to visit the ER at CHOP for emergency situations. In addition, the child has had brain imaging studies (MRIs) performed at CHOP in 2003 and 2009, which were interpreted by members of the hospital’s neuroradiology group. Lastly, plaintiff’s mother, is a nurse at CHOP.
The attorney for Cooper sought to utilize two senior physicians at CHOP, Dr. Robert Clancy – a neurologist, and, Dr. Robert Zimmerman – a renowned pediatric neuroradiologist, as expert witnesses against the plaintiffs, whose role would be to establish that plaintiff’s injuries were not caused by negligence of the doctors at Cooper in allowing the plaintiff to be born prematurely, but from a cerebral artery infection related to a maternal infection (chorioamnionitis).
In deciding for the plaintiffs and against Cooper, the Court ruled the potential prejudice to plaintiffs in allowing Cooper to use senior physicians, who are members of the very treating group where the plaintiff receives care, is so significant that the use of such experts must be barred. This will prevent a jury from being “told by senior members of plaintiff’s treatment team with supervisory and managerial authority and teaching responsibility within that team, that plaintiff’s experts are wrong in their assessment of the cause of plaintiff’s injuries.”
Similarly, the use by the defense of experts from CHOP has the capacity to adversely affect the plaintiff’s patient-physician relationship with his treating doctors. The Court stated that a patient has a “right to expect loyalty from his treating physician and should be able to place trust in that physician,” and, that those qualities would be undermined if a defense attorney were allowed to enlist members of a patient’s treatment team against him in a lawsuit.
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