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Carson v. Fine2/10/1994
Piller v. Kovarsky, 194 N.J. Super. 392, 476 A.2d 1279 (1984), a New Jersey Superior Court faced with this question prohibited a treating physician's adverse expert testimony. After recognizing the fiduciary nature of the physician-patient relationship, and distinguishing the situation where the treating physician testifies adversely regarding the plaintiff's condition or course of treatment, the court concluded:
Defendants argue that a physician volunteering to testify as a defense expert does not in any way damage the essence of the relationship with the patient because the quality of medical treatment is not lessened. But it could not help but have a detrimental effect on the quality of the relationship, and who can say that this would not thereby affect the well-being of the patient.
Piller, 194 N.J. Super. at 398.
The court's rationale in Piller is strikingly similar to our rationale in Loudon for prohibiting ex parte contact with a
patient's treating physician. Certainly the threat that ex parte contact will "have a chilling effect on the physician-patient relationship and hinder further treatment", Loudon, 110 Wash. 2d at 679, is no greater than the threat that a treating physician's gratuitous adverse testimony will likewise erode the patient's trust and hinder further treatment.
Almost always, and certainly in this case, the defense can find other experts to provide the same testimony being solicited of the plaintiff's treating physician. The defense selects the treating physician precisely because he or she is ethically committed to the patient's best interests and juries are likely to give this fact great weight. Yet, in reality the doctor may well have divided loyalties. " doctor may be persuaded for reasons of professional and economic self-interest to assist the defense". Corboy, Ex Parte Contacts Between Plaintiff's Physician and Defense Attorneys: Protecting the Patient-Litigant's Right to A Fair Trial, 21 Loy. U. Chi. L.J. 1001, 1022 (1989-1990). Limiting a treating physician's testimony to that which is necessary to establish the contested facts would reduce the incentive and opportunity for a treating physician to breach his or her fiduciary duty.
We must take great care not to exploit the physician-patient relationship. As litigation techniques embrace increasingly aggressive "hardball" tactics, we too must be increasingly vigilant in protecting the rights of litigants in our courts. The potentially devastating effect on a patient's well being by this gratuitous testimony is too high a price to pay for asserting his or her right to a civil remedy. I conclude the fiduciary nature of the relationship should preclude physicians from testifying as expert witnesses on standards of care, at least when alternate testimony is available to the defense.
II
I reach the same result under an ER 403 analysis. The Court of Appeals correctly recognized that Dr. Duenhoelter's testimony in this case "inevitably present a high risk of
unfair prejudice". Carson v. Fine, 67 Wash. App. 457, 464, 836 P.2d 223 (1992). The "prejudice arises from the fact that plaintiffs will have to answer the argument that 'their own doctor says there is no malpractice'". Carson, 67 Wash. App. at 464-65 (quoting Piller, 194 N.J. Super. at 399). Such testimony can wreak havoc with a plaintiff's case and possibly sound its death knell. The prejudicial impact of a treating physician's adverse expert testimony almost always outweighs the probative value of the testimony. Therefore, I agree with the C
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