It is impermissible for defendants in medical malpractice actions to utilize an expert who is linked to plaintiff's treating physicians.

The plaintiff, who suffers from cerebral palsy, autism, epilepsy and deafness, was born three months premature. The family of the minor plaintiff alleged that Camden's Cooper Hospital, along with nine physicians, failed to take appropriate measures to delay his birth. Two of the defense experts, as well as the plaintiff's primary treating physician since 2001, practice as part of the 22-person pediatric neurology department at the Children's Hospital of Philadelphia. The plaintiff's primary physician was not a named defendant. Neither of the two named defense experts, both of whom held supervisory roles in the practice group, ever treated the plaintiff. The review of images and reports of the defense experts concluded that the brain damage was caused by pre-birth issues, not by Cooper Hospital. Plaintiff's counsel succeeded in precluding the experts' reports and counsel for Cooper argued that precedent permitted the use of these physicians on causation-based issues. In agreeing with the plaintiff, the court noted a conflict because treatment groups like this one hold themselves out as a team and because the two experts chosen by defense counsel held supervisory roles. In affirming, the appellate court noted the use of expert testimony from a physician in the same medical group as the plaintiff's primary physician would be prejudicial to the plaintiff and would interfere with the physician-patient relationship because patients should be able to trust their doctors and "[t]hose qualities will likely be impaired if the defense were allowed to enlist members of plaintiff's treatment team in its litigation effort against plaintiff."

Case Law Alert - 4th Qtr 2010