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How important is the support of my treating physician in a medical malpractice case?
A:
The support of your treating physician is often critically important in a medical malpractice case.
In the decision of Arons v. Jutkowkitz, 9 N.Y.3d 393 (2007), New York's Court of Appeals held that defense counsel may speak privately with the plaintiff's treating physicians relating to claims made in the lawsuit, if the physician voluntarily agrees to the interview. During such a casual setting of the "off-the-record" interviews between defense counsel and the plaintiff's treating physician, there is a real risk that the treating physician will divulge privileged information that is irrelevant to the issues in the lawsuit, i.e., treatment for substance or alcohol abuse. Furthermore, the plaintiff's treating physician may feel compelled to testify in support of the defendant physician since they are insured by the same liability insurance carrier.
With such off-the-record interviews, the plaintiff's treating physician has the power to devastate the plaintiff's case. For example, the treating physician may tell the defense counsel that earlier treatment of a medical condition would not have made a difference in the plaintiff's outcome, or the plaintiff's non-compliance in following medical advice was the cause of the injuries sustained by the plaintiff. There are a number of reasons that the plaintiff's treating physician's support of the lawsuit is crucial.
For these reasons, it is important that the treating physicians be informed that they are not required to speak with defense counsel and the decision whether to meet with defense counsel is entirely voluntary. The treating physicians must also be informed that the defense counsel represent the defendant and the purpose of the meeting is to attempt to defeat the plaintiff's lawsuit. Few treating physicians, once informed of the true motives of defense counsel, will agree to the off-the-record meetings that are now permitted by the Arons decision.
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John H. Fisher
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John H. Fisher
130 North Front Street
Kingston, New York 12402-3058
Phone: 518.265.9131
Fax: 845-331-2004
Toll Free: 866.889.6882
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