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Defendant-Doctor in a Medical Malpractice Action May Be Questioned (by the Plaintiff) As an Expert About His Own Treatment of Plaintiff

The Third Department determined (1) the defendant doctor in a medical malpractice action can be deposed as an expert (by the plaintiff)  with respect to his treatment (the doctor was asked whether the treatment as described in the records deviated from the standard of care); (2) the defendant doctor must answer the question whether he has given any statements to a quality assurance committee, even though the statements themselves would be privileged; (3) substantial changes to deposition testimony in an errata sheet would be allowed, but, based on the substantive nature of the changes, further deposition of the witness was appropriate as well.  With respect to questioning the defendant doctor as an expert about his own treatment, the court wrote:

In the context of a medical malpractice action, the Court of Appeals has held that “a plaintiff . . . is entitled to call the defendant doctor to the stand and question him [or her] both as to his [or her] factual knowledge of the case (that is, as to his [or her] examination, diagnosis, treatment and the like) and, if he [or she] be so qualified, as an expert for the purpose of establishing the generally accepted medical practice in the community” … .  Thus, although “one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness[,] [w]here . . . the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from [being deposed] as an expert” … . Lieblich … v Saint Peter’s Hospital of the City of Albany…, 516736, 3rd Dept 12-19-13

 

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