What? My Treating Doctor Won’t Testify?

Posted By: Tony Baratta | January 15th, 2016

A present client suffered serious orthopedic injuries when a drunk driver crossed the center line of a highway and struck his car head on. An orthopedist was assigned to him by the hospital when brought in as a trauma patient.  My client had no real choice in the matter as it was an emergency situation.  Once discharged from the hospital, my client continued to receive out-patient treatment from the same orthopedist, like many people do.

While receiving out-patient care, my client received a letter from the orthopedist that said this: “we are often asked to provide medical opinion or provide deposition testimony regarding your injury, its prognosis, and treatment.  Because of the oppressive medical legal environment in Pennsylvania, we will not provide these letters or testimony to law firms that perform medical liability (malpractice) work.”

My client was now faced with a dilemma:  if he wanted to pursue compensation for his lost wages and permanent injuries from the drunk driver’s insurance company (or even his own insurance carrier for Underinsured or Uninsured Motorist benefits), he would be forced to treat with a different physican because this physician was telling him that he refused to explain to a jury the injury his patient suffered, the treatment provided, and what the expected recovery from the injury would be. 

At trial, my client has the burden to prove:

  • that he was caused an injury
  • what the injury was
  • that the treatment given was reasonable and necessary
  • that the injury caused his inability to work
  • what future harms he will suffer

By refusing to provide this testimony, the orthopedist is closing the courtroom doors for this patient.

Is this ethical?    I suggest that it is not.

In 2004, the American Medical Association issued an ethical guideline for medical testimony. The ethical opinion starts: “In various legal and environmental proceedings, medical evidence is critical.  As citizens and professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice.”

The blanket refusal by any physician to assist their patient in a matter in court is in violation of the fiduciary duty owed to the patient.  

Does this happen often?  Fortunately, not.  Most treating physicians understand and honor the ethical duty to assist the administration of justice by testifying, in court, regarding the care provided. 

What happens when a physician takes this position in a case I am handling?

 Unfortunately, I must either advise my client to change physicians, or, ask a different physician  to review all records and diagnostic studies, examine my client, and write a report setting forth his or her conclusions.  This physician will then be the physician who testifies at trial.  Either situation is not ideal, of course.

Medical testimony is necessary in every lawsuit to recover money damages for physical and emotional harm caused to my clients.

If you or a loved one is injured by someone else’s carelessness, and you  seek to be made whole for the losses suffered, your physician and your lawyer must be able to work together to accomplish the best possible and just outcome.  If you have any questions on this issue please feel free to call me or email me at tony@barattarussell.com

Tony Baratta is a trial attorney in Huntingdon Valley, PA who represents clients who have been seriously injured including due to medical mistakes. Tony is the founding partner of Baratta, Russell, & Baratta and on the board for the Philadelphia VIP. Tony is a Nationally Certified Civil Trial Advocate, AV Rated Preeminent by Martindale-Hubbel and a member of the Pennsylvania Brain Injury Association (BPIA).  He is also a member of the Million Dollar Advocates Forum for trial attorneys and voted one of Philadelphia’s Super Lawyers 2008-2015.

About the Author

Anthony J. Baratta (Tony) is a trial attorney. He has tried more than 50 cases to Juries in State and Federal Courts and has litigated thousands of personal injury and medical malpractice cases in his 30-year career. Tony is the founding partner of Baratta, Russell, & Baratta and an active board member of the Pennsylvania Brain Injury Association (BPIA). Tony is also on the board for the Philadelphia VIP and performs pro bono work for the Laurel House, a non-profit for victims of domestic abuse. In addition, Tony is a member of the Million Dollar Advocates Forum for trial attorneys, voted one of Philadelphia’s Super Lawyers for the past 14 years, and a 2018 recipient of the First Judicial District Pro Bono Award for the Civil Trial Division.

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