Why The Courts Don’t Allow A Party To Convert Non-Party Physician Witnesses Into Experts


So I came across a really interesting article in this month’s issue of the New York State Bar Association Journal that I thought I should share. The article is “Can a Non-Party Physician Be Compelled to Give Expert Testimony in a Medical Malpractice Action?” written by Katherine W. Dandy and Steven W. Kraus. I’m going to summarize it a little, and if you are interested PLEASE go and read this great article!

The article talks about an interesting issue revolving around procedure and trial practice. So this is another post about the nuances that need to be taken into consideration when practicing law (like my other post on the twelve New Jersey nurses).

It is understand that a defendant in a civil trial can be called to the stand as a witness and have their knowledge used as an expert. They can be asked typical witness-like question such as their examination of the patient, diagnosis, treatment, what they saw, heard, said, and anything else relevant to the case. They may ALSO be asked to act as an expert witness and discuss the more complicated nuances of practicing medicine. This has been approved by the highest court in New York, the Court of Appeals.

However, the situation is different when there is another non-party physician testifying at trial. There are STRICT procedural requirements for expert witnesses and witnesses birthed from the Civil Practice Law and Rules—New York’s body of law governing civil trials—and case law. Particularly, the case law explicitly says that a non-party witness cannot be converted to an expert witness against his or her will and, moreover, cannot be compelled to give expert testimony but may contract to do so for compensation. This serves to protect a witness from being abused at trial. The idea is for the non-party witness to testify to the basic facts, such as the treatment they did after the defendant to help correct the mistakes or what the patient’s condition was when he or she first came to the non-party physician.

Not only does this act to save the non-party witness from overreaching by a party, but it protects the party not calling that witness from being broadsided by a witness who is now acting as an expert. Preparing for a witness is time consuming, but it requires a mastery of the facts (and the law to a point) at trial. HOWEVER, when there is an expert at trial a party REALLY needs to prepare a LOT to combat that expert. Essentially, the attorney needs to know MORE than the expert; that means memorizing all of the law and the medicine at the same time. The CPLR provides for expert disclosure so the attorney can do extensive and appropriate research regarding that expert in efforts to combat them. Therefore, if a party brings a non-party physician into trial as a “witness” but uses them inappropriately as an expert, courts have forcefully prohibited that.

This is really an interesting nuance of the law on how little technicalities can be the difference between admitting the testimony of a non-party physician into the trial and potentially having a devastating effect OR having that testimony barred and not admitted; possibly killing the trial for that party.

But what do you think? I would love to hear from you! I welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.