Medical malpractice claims generally require the testimony of an expert witness in order to determine negligence and causation. The testifying expert is crucially important to the presentation of a case, in addition to having the requisite medical credentials and experience to opine on the evidence reviewed. A recent appeals court decision from New Jersey considers whether a treating physician can testify for the defendant. The decision certainly has potential implications for New York medical malpractice law.
The defendant performed surgery on the plaintiff to extract an organ by means of a specific, though risky, surgical procedure. The parties agreed that during the surgery, the defendant sliced the incorrect area, causing an injury to the plaintiff. The issue before the court was whether this injury was a risk to which the patient consented prior to surgery, or instead a breach of the defendant’s standard of care.
Several days following the surgery, the plaintiff went back to an emergency room in New York with vomiting symptoms. Another surgeon performed emergency surgery on the plaintiff and discovered that her bile duct had been severed. This surgeon who repaired the bile duct later testified at a deposition that in his opinion, the defendant did not deviate from the standard of care. The plaintiff appealed a lower court ruling, arguing, in part, that the testimony of the operating physician was prejudicial to the plaintiff’s case.
The appeals court acknowledged that medical malpractice cases limit the kind of testimony that can be provided by a treating physician. The court reasoned that the surgeon who repaired the plaintiff’s bile duct was permitted to testify regarding only diagnosis and treatment. The treating physician was not permitted to testify how it happened and why it happened, or that it could have happened to the best surgeons. In other words, defendants are not permitted to use a treating doctor to testify regarding negligence or a breach of the standard of care. The appeals court ruled in favor of the plaintiff on this issue.
CPLR Section 3101(d) governs New York medical expert testimony disclosures, and treating physicians are required to comply with its provisions. Although New York courts have not ruled on the issue of treating physician testimony, the precedent established by this New Jersey decision could influence how New York courts handle this issue in the future.
Medical malpractice law is subject to frequent changes. It’s important to talk about your legal options with an experienced medical malpractice attorney, who is familiar with the most recent laws and regulations. If you have been injured during surgery, do not hesitate to contact our experienced Syracuse-based attorneys. To speak with a surgical malpractice attorney about your case, call DeFrancisco & Falgiatano Personal Injury Lawyers at 315-479-9000 or contact us online. We offer evening and weekend appointments as well as home and hospital visits.
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Medical Malpractice Claim Denied for New York Woman with Surgical Camera Lodged in Intestines, Syracuse Medical Malpractice and Personal Injury Lawyer Blog, September 22, 2017
New York Woman Dies After Undergoing Buttock-Enhancement Procedure, Syracuse Medical Malpractice and Personal Injury Lawyer Blog, September 15, 2017
Pathology Malpractice Claim in New York Illustrates Importance of Expert Witness Testimony, Syracuse Medical Malpractice and Personal Injury Lawyer Blog, September 8, 2017