Expert Opinion From The Defendant-Physician

Washington and Lee Law Review Volume 25 | Issue 1 Article 13 Spring 3-1-1968 Expert Opinion From The Defendant-Physician Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Evidence Commons, and the Medical Jurisprudence Commons Recommended Citation Expert Opinion From The Defendant-Physician, 25 Wash. & Lee L. Rev. 115 (1968), https://scholarlycommons.law.wlu.edu/wlulr/vol25/iss1/13 This Comment is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact . 1968] CASE COMMENTS not contemplate extending coverage of the new rules to retrials. However, confusion will continue to exist until the problem disappears with the passage of time or at least until the United States Supreme Court provides definite guidelines. BiLLY JOE TSINGER EXPERT OPINION FROM THE DEFENDANT-PHYSICIAN Nearly every state has a statute allowing a litigant to call an adverse party to testify to "facts within his knowledge," that is, to what he actually saw and did.1 In medical malpractice suits, however, the question arises whether an adverse witness may be required under the statute to testify not only to what he saw and did but also to whether his actions deviated from the accepted standard of medical practice in the community, testimony considered as "expert opinion." Most adverse witness statutes do not expressly prohibit one party from using the other as his expert witness. 2 While recognizing the right of a plaintiff in a malpractice action to call the defendant-physician as a witness, some courts have limited the testimony which may be elicited from such a witness to "non-expert opinion" testimony.3 Other courts allow free and complete questioning just as if the witness had been 4 called as an expert under ordinary circumstances. CAL. CIV. PRO. CODE § 2055 (West 1966); CONN. GEN. STAT. ANN § 52-178 (1958); 154-1-16 (1963); HAWAII REV. LAWS § 222-27 (1955); IDAHO CODE ANN. § 9-12o6 (1967); ILL. REv. STAT. ch. 11o, § 6o (Smith-Hurd 1958); IND. ANN. STAT. § 2-1728 (1958); KAN. STAT. ANN. § 60-243 (1964); MD. ANN. CODE art. 35, § 9 (1965); MAss. GEN. LAws ch. 233:22 (1956); MIcH. STAT. ANN. § 27A.2161 (1962); IMINN. STAT. § 595.03 (1965); Miss. CODE ANN. § 1710 (1943); MO. R]v. STAT. § 491.030 (1959); M.R. Crv. P., Rule 43(b) (ig6i); N.H. REv. STAT. ANN. ch. 516 § 24 (1947); N.J. RE'. STAT. § zA:81-ii (1937); NROP 4 3 (b) (1964); N.C. GEN. STAT. § 8-50 (1953); OHio 'REV. CODE ANN. § 2317.07 (Baldwin 1966); OKLA. STAT. tit. 12, § 383 (1961); PA. STAT. ANN. tit. 28, § 324 (1958); S.C. CODE ANN. § 26-501 (1962); COLO. REv. STAT. ANN. § VT. STAT. ANN. tit. 12, § 1641 (1958); VA CODE ANN. § 8-291 (1950); Wis. STAT. ANN. § 885.14 (1961); and also, FED. R. Civ. P. 43 (b). -See, e.g., CONN. GEN. STAT. ANN. § 52-178 (1958), "Any party to a civil action or probate proceeding may compel an adverse party, or any person for whose benefit such action or proceeding is instituted, prosecuted or defended, to testify as a witness in his behalf, in the same manner and subject to the same rules as other witnesses, and he may examine such party to the same extent as an adverse witness." -'Eg., Osborn v. Carey, 24 Idaho 158, 132 P. 967 (1913); Ericksen v. Wilson, 266 Minn. 401, 123 N.W.2d 687 (1963); Hull v. Plume, 131 N.J.L. 511, 37 A.2d 53 (Ct. App. 1944). 'E.g., Lawless v. Calaway, 24 Cal. 2d 81, 147 P.2d 604 (1944); Dark v. Fetzer, 6 Mich. App. 308, 149 N.W.2d 222 (1967); Rogotzki v. Schept, 91 N.J. Super. 135, 116 WASHINGTON AND LEE LAW REVIEW [Vol. XXV In Dark v. Fetzer8 plaintiff consulted the defendant, Dr. Fetzer, in his capacity as an osteopathic physician. Upon examining the plaintiff, Dr. Fetzer found it necessary to perform a hysterectomy and to call in the second defendant, Dr. Sheets, for assistance. The operation resulted in the successful removal of a malignant tumor but also resulted in the puncture of the left ureter causing irregular drainage. The plaintiff later was readmitted to the hospital for a second operation which failed to correct the irregularity. She was finally referred to Dr. Reed Nesbit. At trial, plaintiff called Dr. Fetzer to the stand and cross-examined him under the adverse witness statute, but when plaintiff's counsel attempted to elicit expert opinion testimony from the defendant, an objection was raised and sustained. Judgment was entered for the defendant. On appeal the court found that the purpose of the adverse witness statute is to level former technical rules in order to arrive at the facts in issue. The court held that the plaintiff should have been allowed to call the doctors as adverse witnesses and to establish her case in chief through their expert testimony.6 If this practice is to be allowed there are two important questions peculiar to it that must be considered: 7 (i) Is it inconsistent for the plaintiff to present the physician as competent to testify as an expert witness, when by bringing the action he is attempting to discredit the physician's medical competence? (2) If the plaintiff's position is not inconsistent, will the court interpret the statute to require the physician to present evidence adverse to his defense? The first and major question to be resolved is that of the witness' competency. In Ericksen v. Wilson8 the court held that the plaintiff could not under the guise of the adverse witness statute force the de219 A.2d 426 (1966); McDermott v. Manhattan Eye, Ear & Throat Hospital, 15 N.Y.2d 20, 203 N.E.2d 469 (1964). 16 Mich. App. 3o8, 149 N.W.2d 222 (1967). Old. at 224-25. 7 There is also the question of bias which is applicable to any testimony under an adverse witness statute but which deserves some mention here. In Sturdivant Bank v. Wright, 184 Mo. App. 164, 168 S.W. 355 (1914), an action on a note, defendant was placed on the stand by plaintiff and examined as a witness on plaintiff's behalf. Defendant testified that he had not signed the note; plaintiff subsequently asked for an instruction to the jury pointing out that the defendant had an interest in the suit and was biased. The court held that failure to give an instruction taking the interest of the adverse party -into consideration was not reversible error. "[He was the witness called and placed upon the stand and examined by plaintiff, and it did not lie in the mouth of plaintiff to impeach or throw any slur in the character of the witnesses whom it had itself produced and tendered to the jury as a credible witness in the case." Id. at 357. '266 ,Minn. 401, 123 N.W.2d 687 (1963). 1968] CASE COMMENTS fendant to become his expert witness. The court noted that this procedure should be disallowed particularly where, as in a malpractice action, the plaintiff is (...truncated)