A PHYSICIAN’S DUTY TO TESTIFY

By Attorey Mark S. Gervelis

I. INTRODUCTION

The physician’s responsibilities to the patient rest upon two foundations: the age-old Hippocratic Oath, and the physician-patient relationship with its unique statutory dimensions. A patient confronted with injury or illness obviously relies on a physician to provide the best possible medical care within the protection of a physician-patient relationship. But the patient also looks to his or her doctor to provide assistance in the even the injury gives rise to a legal claim. In that connection, a physician has an affirmative duty to adequately document the injury and to honestly testify at trial on behalf of the patient.

II. A PHYSICIAN’S RESPONSIBILITY TO TESTIFY

A. The Duty to Testify
A treating physician’s duty of total care requires him or her to offer candid testimony on behalf of the patient, a duty which has been acknowledged in decisional case law such as that from the federal district count in Hammonds v. Aetna Casualty & Insurance Company, 243 F. Sup. 793 (N.D. Ohio 1963). The court in Hammonds said:

It cannot be questioned that part of a doctor’s duty of total care requires him to offer his medical testimony on behalf of his patient if the patient becomes involved in litigation over the injury or illness which the doctor treated. Thus, during the course of such litigation, in addition to the duty of secrecy, there arises the duty of undivided loyalty. (1)

We are of the opinion that members of a profession, especially the medical profession, stand in a confidential or fiduciary capacity as to their patients. They owe their patients more than just medical care for which payment is exacted. There is a duty of total care; that includes and comprehends a duty to aid the patient in litigation, to render reports when necessary and to attend court when needed. (3)

As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests his physician’s assistance, the physician should furnish medical evidence, with the patient’s consent, in order to secure the patient’s legal rights. (4)

Therefore, not only is the treating physician free to testify upon a waiver by the patient of the physician-patient relationship, but the obligation to do so is imposed by the professional association’s code mandating assistance of the patient at trial.

B. The Necessity of Physician Testimony
The treating physician’s testimony is crucial in securing the patient’s legal rights and in overcoming the many obstacles which a patient can face prior to trial. For example, while an insurance company may refuse to settle a claim because it believes that its insured was not at fault, it may also claim that the patient’s injuries are not severe or that the medical expenses incurred by the patient are excessive. A treating physician’s documentation, reports and testimony can be critical to verifying the patient’s condition and treatment costs prior to trial, thereby facilitating negotiation and settlement of the claims.

If trial does become necessary, the treating physician has a critical role in education the jury and explaining the causal connection between the accident ant the injury for which the physician provided the treatment. (5) Even in cases where there is no serious dispute as to the source or extent of the patient’s injuries, a physician’ testimony is still necessary to establish a formal record supporting the claim.

C. The Physician’s Testimony
A treating physician may actually testify at trial, or in advance or trial by a video-taped deposition that will eventually be presented at trial. Although a physician is otherwise precluded by physician-patient privilege from revealing the details of his patient’s treatment to third parties, that privilege is waived by the patient when the physician is called to testify on the patient’s behalf. Trial testimony, identified in the Code of Medical Ethics as an affirmative duty that the physician owes the patient, (6) is distinct from ex parte communications (that is, communications with others without the patient’s knowledge or consent) which do infringe on the confidential relationship.

A treating physician’s testimony must meet certain legal standards in order for it to be admissible evidence in the courts of Ohio. The phrases “reasonable medical certainty” and “reasonable medical probability” are key. In order to establish the connection between the accident and the patient’s injury, the physician must state his opinion in terms of “reasonable medical probability”. (7) If an event is more than fifty percent likely to produce the occurrence at issue, then it meets the “probability” standard. (8) In establishing the legal link between accident and resulting injury, “reasonable medical probability” means that, in his physician’s medical opinion, the accident for which the patient received treatment probably cause the injury.

If a patient has permanent injuries, the physician must present his opinion as to the permanency of the condition in terms of “reasonable medical certainty.” Thus, testimony that an accident “possibly” cause an injury will not create the necessary legal link;9 a treating physician’s testimony must be stated in terms of reasonable medical certainty as to permanency or probability as to causation, not possibility.

III. CONCLUSION

In Spaulding v. Hussain, the court said:

[H]owever far the litigation duty may extend at it’s outer limits, this much at least is clear ­ a treating physician is not at liberty to ignore with impunity the basic obligation of rendering a reasonable modicum of litigation assistance. Nor is he free, without compelling professional justification, to renege on a promise, reasonable and detrimentally relied upon by his patient, to render specific litigation assistance. (10)

[W]hen the patient files suit and places a specific mental or physical condition at issue, we believe that the fiduciary relationship existing between the patient and the physician requires, at the very minimum, that the patient have a right to rest assured that the physician will act in good faith while at the same time, the physician complies with court-authorized discovery. Thus, when a patient files suit, the physician should be prepared to release those records relevant to the condition placed at issue, be available to give depositions, and be prepared to testify should he be called upon to do so. (11)

When a treating physician testifies candidly at trial, he or she upholds the Hippocratic oath and provides invaluable assistance to the patient. The duty to thus testify is recognized by the courts.

Indeed, a treating physician who avoids this obligation may be subject to penalties imposed by the court. (12) Thus the interest of the patient, the physician, and the legal process are all served by the physician’s involvement.

Published in Ohio Trial, magazine Volume 13, Issue 1, Spring 2003

1 Id. at 799.

2 Id.

3 Alexander v. Knight, 177 A.2d 142 (Pa. Super. Ct. 1962); see also Petrillo v. Syntex Lab., Inc., 499 N.E. 2d 952 (Ill. App. Ct. 1986) (to the effect that the fiduciary relationship between patient and physician requires the physician to provide testimony on the patient’s behalf).

4 Code of Medical Ethics, American Medical Association.

5 Darnell v. Eastman, 261 N.E.2d114 (Ohio 1970)

6 Petrillo, 499 N.E.2d at 956.

7 Shepard v. Midland Mutual Life Insurance Company, 87 N.E.2d 156 (Ohio 1949).

8 Cooper v. Sisters of Charity of Cincinnati, Inc., 272 N.E.2d 97 (Ohio 1971).

9 Brandt v. Mansfield Rapid Transit, Inc., 92 N.E.2d 1 (Ohio 1950).

10 Spaulding v. Hussain, 551 A.2d 1022 (N.J. Super. Ct. App. Div. 1988).

11 Petrillo, 499 N.E.2d at 961.

12 Hussain, at 1026.

*PUBLISHED IN OHIO TRIAL MAGAZINE