In Stigliano v. Connaught Laboratories, Inc. et al, the plaintiffs claimed their three-month-old baby suffered seizures as a result of an immunization shot. Frank and Mary Stigliano brought their daughter Jessica to a physician for a DPT shot. Six hours after Jessica was injected with the vaccine, she suffered a series of convulsive seizures. The child's parents then consulted with three pediatric neurologists for diagnosis and treatment None of these physicians found any evidence that Jessica‘s seizures were caused by the DPT shot.


    Nonetheless, the parents brought suit against the physician who administered the vaccine and the lab that manufactured it. The defense tried to introduce as witnesses the neurologists who had subsequently treated the infant for the seizures, to testify about whether the vaccination caused the condition. The plaintiffs objected. They claimed the subsequent treating physicians were bound by physician-patient confidentiality, and, further, were not experts on causation. The law division of the New Jersey courts agreed and barred the testimony.


    But the Appellate Court of New Jersey reversed this order. The higher court found that the parents waived the doctor-patient privilege when they brought a malpractice suit involving the medical condition that the proposed witnesses treated. And since the subsequent treating physicians’ opinions about causation were related to Jessica's treatment, the court said there was "no reason to distinguish the doctors’ testimony about causation and their testimony about diagnoses and prognoses." On further appeal, the New Jersey Supreme Court upheld the Appellate Court's decision. The Court recognized the sanctity of the physician's oath of confidentiality. But it stated firmly that not waiving confidentiality for the non-defendant treating physicians’ testimony in a malpractice case would keep from the jury critical information on a central issue of the case.


    According to the court, "The determination of causation is an essential part of diagnosis and treatment.  Doctors must determine the cause of a disease to treat the patient..." A different issue of confidentiality also arose as the high court allowed this testimony. It involved privileged conversations between experts and attorneys working on a case. The court found that the treating physicians, while clearly experts, were more appropriately labeled as "fact witnesses." The court made the distinction between experts and fact witnesses to ensure the physician testimony could be admitted. The legal system does not allow one side in a case to obtain the privileged discussions between experts and attorneys for the other side. In Stigliano, the subsequent treating physicians were experts, and they did offer a medical opinion to the plaintiffs that the vaccine did not cause the infant's seizures.


    But the high court in New Jersey said those opinions were not privileged. This was because the plaintiffs consulted these physicians for the purpose of obtaining treatment, not expert testimony. The court made this distinction, and applied the label fact witnesses, to uphold the principle of confidentiality between attorneys and the experts that attorneys consult as they prepare a case. The issue of seeking information from subsequent treating physicians often arises in medical malpractice cases. The states which have addressed these issues have arrived at varying conclusions. The New Jersey Court's decision in this case seems well founded in distinguishing between the role of experts retained for purposes of the litigation as opposed to physicians retained to provide treatment of the patient and the access to their conclusions and opinions.


    With the intense preparation involved during the discovery phase of malpractice actions, this issue is likely to arise and be addressed by other appellate courts. The New Jersey opinion appears to provide reasonable parameters for determining when such opinion testimony may be gained. However, before being deposed, physicians are well advised to seek legal advice regarding the legitimate scope of the testimony they can provide.

    Causation and Subsequent Treating Physicians

    by Attorney Frank E. Reardon

    August 1995

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

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