Legal Brief Needed for med mal case re: Improper Exclusion of Treating Physician Testimony and Medical Records
Budget: $750 – $1,500 USD
I need a brief written to overcome a judge's ruling that the plaintiff's treating doctor's cannot testify because they were not included on the expert designation in a medical malpractice case.
- There was no gamesmanship. Defense knew of the doctors. Defense has even deposed some of them.
- plaintiff has previously mentioned all the treating doctors in past discovery responses.
- Plaintiff's attorney listed retained experts but did not include non-retained experts (i.e., treating doctors) and instead included a statement reserving the right to call any doctors/witnesses listed in the joint witness list or in the defendant's expert designation.
- because the judge was in a rush to shorten the trial and not interfere with his scheduled month long vacation, he did not want to add any additional witnesses given that there were a lot of other experts testifying.
- judge has wide discretion on allowing non-retained experts to testify and plaintiff believes that judge should have not only allowed the treating doctors to appear, not allowing the treating doctors to appear results in completely eviscerating the plaintiff's case because there is no testimony of plaintiff's diagnoses or prognoses.
- Note, the judge allowed one of the treating doctors to testify because the defense agreed to it and parties even had a 2-hour deposition on an off day from trial and then had the doctor testify at trial. The same process should have been ordered for other treating doctors that the plaintiffs needed to bring to make their case.
- given that some doctors had already been deposed, they definitely should not have been excluded.
- An even bigger issue that resulted because of not allowing these doctors to testify was that their medical records which included their diagnoses were not substantiated and the judge would not even allow the medical records to come in.
- worst case scenario, the treating physicians should have been allowed to testify as percipient witnesses and to talk about the pain the plaintiff was in, the doctor's diagnoses, and also prognoses. This is not expert opinion and should have been allowed. Because this didn't occur, the jury is left wondering why the doctors didn't appear and whether or not the plaintiff really has any injuries or damage.
- causation testimony by the treating physicians should also have been allowed as long as it was based on their professional experience and examination of the injuries. It is not based on reviewing files from the case.
- There was no gamesmanship. Defense knew of the doctors. Defense has even deposed some of them.
- plaintiff has previously mentioned all the treating doctors in past discovery responses.
- Plaintiff's attorney listed retained experts but did not include non-retained experts (i.e., treating doctors) and instead included a statement reserving the right to call any doctors/witnesses listed in the joint witness list or in the defendant's expert designation.
- because the judge was in a rush to shorten the trial and not interfere with his scheduled month long vacation, he did not want to add any additional witnesses given that there were a lot of other experts testifying.
- judge has wide discretion on allowing non-retained experts to testify and plaintiff believes that judge should have not only allowed the treating doctors to appear, not allowing the treating doctors to appear results in completely eviscerating the plaintiff's case because there is no testimony of plaintiff's diagnoses or prognoses.
- Note, the judge allowed one of the treating doctors to testify because the defense agreed to it and parties even had a 2-hour deposition on an off day from trial and then had the doctor testify at trial. The same process should have been ordered for other treating doctors that the plaintiffs needed to bring to make their case.
- given that some doctors had already been deposed, they definitely should not have been excluded.
- An even bigger issue that resulted because of not allowing these doctors to testify was that their medical records which included their diagnoses were not substantiated and the judge would not even allow the medical records to come in.
- worst case scenario, the treating physicians should have been allowed to testify as percipient witnesses and to talk about the pain the plaintiff was in, the doctor's diagnoses, and also prognoses. This is not expert opinion and should have been allowed. Because this didn't occur, the jury is left wondering why the doctors didn't appear and whether or not the plaintiff really has any injuries or damage.
- causation testimony by the treating physicians should also have been allowed as long as it was based on their professional experience and examination of the injuries. It is not based on reviewing files from the case.