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New York Court Discusses Depositions of Non-Party Physicians in Medical Malpractice Cases

In some cases in which a person is harmed by negligent treatment, multiple providers will participate in the person’s care, but not all of the providers will contribute to the person’s harm. Thus, it is not uncommon for either party to seek to depose non-party physicians as fact witnesses. There are limitations regarding what information can be elicited from a physician who is not an expert or a party, however, as demonstrated in a recent surgical malpractice case arising out of Bronx County.  If you sustained damages due to an inappropriately performed surgery, it is wise to speak with a proficient Syracuse surgical malpractice attorney regarding what evidence is available to support your claims.

The Deposition of the Non-Party Physician

Allegedly, the plaintiff’s decedent underwent an elective knee replacement at the defendant hospital. Following the surgery, the decedent was transferred to a recovery room where he became unresponsive. The decedent was resuscitated, but he ultimately died due to an anoxic brain injury. His estate subsequently filed a medical malpractice lawsuit against the hospital and the defendant that performed the surgery. During discovery, the plaintiff’s counsel deposed the anesthesiologist that attended the decedent’s surgery. The defendants’ counsel objected to several questions presented to the anesthesiologist and directed her not to answer. Thus, the plaintiff sought a court order directing the anesthesiologist to answer.

Information Discoverable from a Non-Party Physician in a Medical Malpractice Case

Pursuant to the New York laws of civil procedure, counsel should be permitted to question witnesses at depositions freely, and any question posed should be answered unless the question is clearly improper or seeks privileged information. For example, in a malpractice action, it is improper to question a physician regarding the quality of care provided by another physician, if the question does not pertain to the potential negligence of the physician being questioned. If the question simply refers to the treatment offered by another physician, though, the physician being deposed cannot refuse to answer.

In the subject case, the court found that questions that sought opinions regarding the care provided by the defendants were not appropriate, and counsel’s objections to these questions were valid. Conversely, the court ruled that questions that sought testimony that was objected to as hearsay should have been answered. The court noted that while hearsay evidence may not be admissible at trial, it does not preclude a witness from testifying regarding conversations that may be hearsay in a deposition.

Lastly, the court found that questions regarding the anesthesiologist’s opinion at the time she was providing treatment to the decedent were appropriate, while objections to questions regarding whether she agreed with diagnoses provided by other physicians were valid. Additionally, the court ruled that asking the anesthesiologist for her present-day opinion regarding care provided by other physicians would elevate her to the level of an expert, and was improper.

Speak with a Trusted Surgical Malpractice Attorney

If you or a loved one were harmed by a negligently performed surgery, it is advisable to speak with a trusted Syracuse surgical malpractice attorney regarding your options for pursuing compensation. The dedicated attorneys of DeFrancisco & Falgiatano, LLP Personal Injury Lawyers will work tirelessly to gather the evidence needed to help you seek a successful outcome. We can be contacted through our form online or at 315-479-9000 to schedule a complimentary and confidential conference.

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