When is a Treating Physician Not a Treating Physician?

When the so-called treating physician is handpicked by an attorney to advance his client’s lawsuit. See Daniel E. Cummins, “Did Your Attorney Refer You to that Doctor?” (Dec. 17, 2014).

Treating physicians are a powerful weapon in health-effects litigation because they can deliver what appears to opinions untainted by “litigation bias.” Jurors and judges, challenged by difficult medical causation issues, find the caring attitude of treating physicians as a powerful proxy for the truth, which alleviates the need to think critically and carefully about epidemiology, statistics, toxicology, and the like. Of course, some treating physicians are biased by their care and treatment of the patient, especially when their treatment did not go so well. Physicians who were not able to cure or ameliorate their patients’ conditions may welcome the opportunity to advocate for their patients to give them, or their survivors, to make up for their failure to help through the healing arts. Patient-advocacy bias, however, is more difficult to appreciate than hired-expert witness bias.

Plaintiffs’ counsel often base their litigation strategy upon using treating physicians on causation or damages issues to take advantage of jurors’ and judges’ perceptions of treating physicians as motivated by beneficence rather than lucre[1]. Of course, there are dangers in these tactics. For one thing, the treating physicians, as in Tamraz v. Lincoln Elec. Co., may not really be up to the task of delivering a causation opinion, and the plaintiffs’ counsel’s cynical tactic will make a weaker case weaker still in the eyes of the jury. And then the treating physician may not subscribe fully to the plaintiffs’ lawyer’s litigation goals and theories[2]. SeePolitics of Expert Witnesses – The Treating Physician” (June 7, 2012).

Plaintiffs’ counsel may attempt to avoid the weaknesses of their treating physician strategy by selecting a carefully screened physician, ready to endorse plaintiffs’ litigation theories, and then to refer the claimant to this physician under cover of an asserted attorney-client privilege. A recent trial court in Pennsylvania, however, dealt a serious blow to this covert strategy by holding that the lawyer’s directing of his client’s medical care is not within the scope of the attorney-client relationship, and thus not a privileged communication. English v. Stepchin, No. CP-23-CV-786-2014, 101 Del. 424 (C.P. Del. Cty. Nov. 12, 2014 Kenney, P.J.). In English, plaintiff’s counsel asserted the privilege and objected to defense counsel’s deposition question whether plaintiff’s counsel had referred plaintiff to her treating physician.

On motion to compel discovery, Delaware County President Judge Chad F. Kenney overruled the objection, and held that “whether counsel referred Plaintiff to her treating physicians does not constitute legal assistance so as to justify properly invoking the attorney-client privilege.” As Judge Kenney explained:

“Clearly, whether counsel referred Plaintiff to her treating physicians is not a communication involved in either rendering a legal opinion or securing legal services. Furthermore, we conclude that the communication of such information does not constitute assistance in a legal matter so as to properly invoke the attorney-client privilege.

* * *

The disclosure of such information is not of a nature as would discourage trust or candid communication between a lawyer and a client and we are of the opinion that it does not outweigh the interest in the accessibility of material evidence to further the truth determining process.”

Id. at 425. The assertion of the attorney-client privilege was thus rejected, and the plaintiff was required to provide details as to how she came to go to her so-called treating physician.

The English decision represents a symmetrical paring of the attorney-client privilege to match the limitations imposed by other recent decisions on defense counsel. See, e.g., In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789, 800, 802 (E.D.La. 2007)(“We could not see the legal significance of these comments…” by in-house counsel on “scientific reports, articles accepted for publication in noted journals, and research proposals”); Weitz & Luxenberg P.C. v. Georgia-Pacific LLC, 2013 WL 2435565, 2013 NY Slip Op 04127 (June 6, 2013).

[1] See, e.g., Simmons v. Novartis Pharm. Corp., 2012 WL 2016246, *2, *7 (6th Cir. 2012) (affirming exclusion of retained expert witness, as well as a treating physician who relied solely upon a limited selection of medical studies given to him by plaintiffs’ counsel); Tamraz v. BOC Group Inc., No. 1:04-CV-18948, 2008 WL 2796726 (N.D.Ohio July 18, 2008)(denying Rule 702 challenge to treating physician’s causation opinion), rev’d sub nom. Tamraz v. Lincoln Elec. Co., 620 F.3d 665 (6th Cir. 2010) (carefully reviewing record of trial testimony of plaintiffs’ treating physician; reversing judgment for plaintiff based in substantial part upon treating physician’s speculative causal assessment created by plaintiffs’ counsel), cert. denied, 131 S. Ct. 2454 (2011).  See generally Robert Ambrogi, “A ‘Masterly’ Opinion on Expert Testimony,” Bullseye: October 2010; David Walk, “A masterly Daubert opinion” (Sept. 15, 2010);  Ellen Melville, “Comment, Gating the Gatekeeper: Tamraz v. Lincoln Electric Co. and the Expansion of Daubert Reviewing Authority,” 53 B.C. L. Rev. 195 (2012) (student review that mistakenly equates current Rule 702 law with the Supreme Court’s 1993 Daubert decision, while ignoring subsequent precedent and revision of Rule 702).

[2] In the welding fume litigation, inspired by the money and tactics of ex-convict Richard Scruggs, plaintiffs’ counsel adopted a dual strategy of co-opting a local treating physician, and alternatively, having their ready, willing, and able retained expert witness, Dr. Paul Nausieda, claim that he had created a physician-patient relationship with the claimant.


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