On appeal from Superior Court of New Jersey, Law Division, Morris County.
Botter, Pressler and O'Brien. The opinion of the court was delivered by Botter, P.J.A.D.
[195 NJSuper Page 446] This is a medical malpractice action against two doctors, Dr. Brown and Dr. Manrodt. After being treated by them plaintiff Francine Lazorick came under the care of Dr. Galton and Dr. Needle. The issue on this appeal is whether defendants should be barred from calling Dr. Galton and Dr. Needle as witnesses because defense counsel spoke with them and received reports
from them without their patient's consent. Because of this conduct the trial judge ordered that neither Dr. Galton nor Dr. Needle would be allowed to testify for defendants at trial as a fact or expert witness. We granted defendants leave to appeal from this order, and we now reverse.
Francine Lazorick is now 30 years of age.*fn1 She was treated by defendants in 1979. While the particular medical dispute does not bear significantly on the confidentiality issue in this case, we will sketch in some details as background. Plaintiff saw Dr. Manrodt on October 5, 1979. According to medical reports in the record she appeared to have an upper respiratory infection manifested by a stuffy nose, coughing, and shortness of breath. Examination revealed thick mucus in her nose and wheezing rales in both lungs. A nasal spray, cough medication and Erythromycin were prescribed. She was seen again by Dr. Manrodt on October 30 and by Dr. Brown on November 13, 1979, during Dr. Manrodt's absence. Dr. Brown prescribed Amoxicillin, a penicillin derivative. Dr. Manrodt saw her two days later and continued her on Amoxicillin, apparently until November 18. Plaintiff's condition worsened and she was seen on November 19 by an associate of Dr. Brown. Thereafter she came under the care of Dr. Galton who admitted her to the Chilton Memorial Hospital on November 20 with a diagnosis of "serum sickness reaction." She was also seen some time thereafter by Dr. Needle in consultation with Dr. Galton.
Plaintiffs contend that Francine Lazorick developed a severe systemic disease called vasculitis resulting in permanently debilitating injuries, including the loss of use of her hands except for limited purposes. They contend that this disease was a reaction to Amoxicillin which they contend should not have been prescribed and should not have been continued. Defendants contend that Amoxicillin did not cause the vasculitis. They
base this in part on the presence of wheezing before antibiotics were administered. Defendants' medical experts deny that plaintiff had serum sickness. They say that she had periarteritis (also referred to as vasculitis syndrome) which was manifested by symptoms, including respiratory symtoms, that preexisted the ingestion of Amoxicillin. They also deny that defendants were negligent in administering Amoxicillin to plaintiff.
Plaintiffs' answers to interrogatories did not list Dr. Galton and Dr. Needle as proposed expert witnesses. They have received reports from consulting physicians who examined various records and have expressed opinions as to the cause of Francine's condition and defendants' malpractice, but plaintiffs do not plan to produce any treating doctors as their own witnesses. Dr. Galton was listed as a treating physician for plaintiff's "current disease," but plaintiffs did not submit any report from him.
Defense counsel asked plaintiffs' attorneys to furnish written authorization for obtaining medical records from various doctors and to permit defense counsel to discuss Francine Lazorick's medical condition with those doctors. Consent was given for the medical records, but was denied as to "discussions or conversations." Defendants then moved to compel plaintiff to give such authorization, contending that plaintiffs' attorneys were free to discuss plaintiff's medical condition with treating doctors and defendants should have the same right, especially with doctors who will not be called as plaintiffs' witnesses. The trial judge denied the motion without clearly articulating the basis for his ruling. He referred to the fact that the doctors had not been asked to speak to defense counsel but apparently were willing to do so. He said he would not rule on defendants' request to compel plaintiff to sign an authorization and that he saw no need for intervention in the dispute at that time. In denying the motion he said, "I'm not saying that I might not grant it at some future time," but that he saw no basis for intervening in the dispute "at this point." Defense counsel suggested that he would arrange a meeting with the
doctors on notice to his adversary who could then move for a protective order. The judge gave the appearance of accepting this suggestion, so that if plaintiffs' attorneys objected and the doctors would not meet with defense counsel, the motion could be renewed. The trial judge denied the motion, giving as a reason that he had "no reasons to grant" it at that time.
Defense counsel arranged a meeting with Dr. Galton for December 2, 1982 and advised plaintiffs' attorneys by letter dated November 11 that they should move for a protective order if they thought the meeting was improper. Plaintiffs' attorneys replied that they reserved their right to object at trial to the admission of evidence from this unauthorized and inappropriate meeting with plaintiff's treating physicians. To this defense counsel replied that the purpose of the meeting was to investigate evidence, not create it. The response to this was another letter protesting the effort to turn treating physicians into witnesses against plaintiff, which plaintiffs' attorneys termed "wrong as a matter of simple fairness and justice." No motion was made for a protective order, and the meeting with Dr. Galton took place on December 2, followed by his written report stating that Amoxicillin "could have been the causative agent, but it is more likely that it was not the cause of the disease." Plaintiffs contend that this opinion conflicts with opinions expressed by Dr. Galton in the hospital records. Defendants dispute this contention. Later, without meeting with defense counsel, Dr. Needle furnished two reports expressing the opinion that it was impossible to establish that ...