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A
PHYSICIAN’S DUTY TO TESTIFY
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)
The Code of Medical Ethics of the American Medical Association and
the Ohio State Medical Association require a physician to furnish
medical evidence to the patients with legal claims, and the court’s
decision in Hammonds was based on the public policy underlying
the American Medical Association’s Code of Ethics. (2) Acknowledging
the policy’s importance, the court noted a Pennsylvania court’s decision
which also recognized the physician’s duty to testify. Thus, in Alexander
v. Knight, the court stated:
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)
The duty to assist the patient with reports and honest testimony is
similarly imposed upon physicians by their professional societies.
Section 9.07 of the Code of Medical Ethics says:
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)
And, in Petrillo, the court said:
[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
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