The issue presented by plaintiffs' motion in this medical malpractice case is whether the defense should be permitted to call a treating physician as a liability expert witness at trial.
On May 2, 1979 the infant plaintiff severely fractured her left arm when she fell from a tree. She was treated by defendant orthopedists, Drs. Levine and Kovarsky, at defendant Pascack Valley Hospital. Dr. Levine reduced the fractures during surgery and then immobilized the arm by cast traction. Unfortunately the infant plaintiff developed a condition known as Volkman's ischemic contracture, which has left her arm deformed. Upon diagnosing this condition, Dr. Levine performed
further surgery and then, at defendants' suggestion, care of the infant plaintiff was transferred to Dr. Harold Dick, a prominent orthopedist at Columbia Presbyterian Hospital who specializes in pediatric reconstructive surgery, and under whom defendant Dr. Levine once trained. Dr. Dick has performed numerous operations on the infant plaintiff and she still remains under his care.
In May 1981 plaintiffs instituted this action alleging that the deformity of the infant plaintiff's arm was caused by the negligence of the defendants in failing to recognize and treat the impending condition. About one and one half years ago counsel for the defendant physicians notified plaintiffs' counsel that Dr. Dick had agreed to act as a liability expert on their behalf. They thereafter served a copy of his report. They intend to call Dr. Dick at trial, along with another orthopedic surgeon, to testify that the defendant physicians did not deviate from accepted standards of medical practice in their treatment of the infant plaintiff. Of course, plaintiffs intend to call Dr. Dick at trial to testify as the infant plaintiff's treating physician. About 9 months ago plaintiffs' counsel advised defense counsel by letter that they objected to Dr. Dick being called as a defense expert, but they did not file this motion to bar his testimony until the eve of trial.
Defendants argue that they should not be deprived of the testimony of an expert of Dr. Dick's qualifications just prior to trial, especially since they have spent considerable time in the last one and one half years consulting with him in preparation for trial. A persuasive argument can be made that plaintiffs have waived their right to object by waiting so long to file this motion. But if Dr. Dick should in fairness be barred from testifying as a defense expert, it can be done in such a way that will not prejudice the defendants. I am also cognizant of the fact that if I deny the motion simply because of the impending trial date, the infant plaintiff could ask for a voluntary dismissal, reinstitute suit and raise the same question later. The issue should be decided now on its merits.
The physician-patient relationship
The patient-physician privilege created by N.J.S.A. 2A:84A-22.1 et seq. does not bar Dr. Dick's testimony as a defense expert. Any privilege was waived by institution of this action by reason of N.J.S.A. 2A:84A-22.4 which provides that "[t]here is no privilege under this act in an action in which the condition of the patient is an element or factor of the claim . . . of the patient. . . ." Indeed, because of this waiver, the defendants could depose Dr. Dick and, if they wish, call him as a fact witness at trial. But the testimonial privilege created by the statute, and its waiver, do not answer the question whether defendants can go beyond this and engage Dr. Dick as a voluntary expert witness as to the liability of the treating physicians who preceded him.
The purpose of the patient-physician privilege is to enable the patient to secure medical services without fear of betrayal and unwarranted embarrassing and detrimental disclosure in court of information which might deter him from revealing his symptoms to a doctor to the detriment of his health. State, in Interest of M.P.C., 165 N.J. Super. 131, 136 (App.Div.1979). While the statutory privilege is not a direct bar to what the defendants seek to do here, it does confirm that the established public policy of this state recognizes a confidential relationship between patient and physician for the benefit of the patient. Even before enactment of the statute, our Supreme Court in Hague v. Williams, 37 N.J. 328 (1962) recognized a limited right against non-testimonial disclosure because of the confidential nature of the relationship. The nature of that relationship imposes fiduciary obligations on the physician because it ...