Lazorick v. Brown

• Decision Date: 31 August 1984
• Citation: 480 A.2d 223,195 N.J.Super. 444
• Parties: Francine LAZORICK and Frank and Ann Lazorick, her parents, Plaintiffs-Respondents, v. J. Duff BROWN, M.D., Kurt Manrodt, M.D., Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 444

195 N.J.Super. 444

480 A.2d 223

Francine LAZORICK and Frank and Ann Lazorick, her parents Plaintiffs-Respondents, v. J. Duff BROWN, M.D., Kurt Manrodt, M.D., Defendants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Feb. 28, 1984.

Decided Aug. 31, 1984.

Craig S. Combs, Morristown, for defendants-appellants (Giblin, Combs & Cooney, Morristown, attorneys; Craig S. Combs and Thomas F. Quinn, Morristown, on the brief).

Arthur I. Miltz, Livingston, for plaintiffs-respondents (Kronisch & Schkeeper, Livingston, attorneys; Arthur I. Miltz, Livingston, on the brief).

Before Judges BOTTER, PRESSLER and O'BRIEN.

The opinion of the court was delivered by

BOTTER, P.J.A.D.

This is a medical malpractice action against two doctors, Dr. Brown and Dr. Manrodt. After being treated by them plaintiff Francine Lazorick came under the care of Dr. Galton and Dr. Needle. The issue on this appeal is whether defendants should be barred from calling Dr. Galton and Dr. Needle as witnesses because defense counsel spoke with them and received reports from them without their patient's consent. Because of this conduct the trial judge ordered that neither Dr. Galton nor Dr. Needle would be allowed to testify for defendants at trial as a fact or expert witness. We granted defendants leave to appeal from this order, and we now reverse.

Francine Lazorick is now 30 years of age. ¹ She was treated by defendants in 1979. While the particular medical dispute does not bear significantly on the confidentiality issue in this case, we will sketch in some details as background. Plaintiff saw Dr. Manrodt on October 5, 1979. According to medical reports in the record she appeared to have an upper respiratory infection manifested by a stuffy nose, coughing, and shortness of breath. Examination revealed thick mucus in her nose and wheezing rales in both lungs. A nasal spray, cough medication and Erythromycin were prescribed. She was seen again by Dr. Manrodt on October 30 and by Dr. Brown on November 13, 1979, during Dr. Manrodt's absence. Dr. Brown prescribed Amoxicillin, a penicillin derivative. Dr. Manrodt saw her two days later and continued her on Amoxicillin, apparently until November 18. Plaintiff's condition worsened and she was seen on November 19 by an associate of Dr. Brown. Thereafter she came under the care of Dr. Galton who admitted her to the Chilton Memorial Hospital on November 20 with a diagnosis of "serum sickness reaction." She was also seen some time thereafter by Dr. Needle in consultation with Dr. Galton.

Plaintiffs contend that Francine Lazorick developed a severe systemic disease called vasculitis resulting in permanently debilitating injuries, including the loss of use of her hands except for limited purposes. They contend that this disease was a reaction to Amoxicillin which they contend should not have been prescribed and should not have been continued. Defendants contend that Amoxicillin did not cause the vasculitis. They base this in part on the presence of wheezing before antibiotics were administered. Defendants' medical experts deny that plaintiff had serum sickness. They say that she had periarteritis (also referred to as vasculitis syndrome) which was manifested by symptoms, including respiratory symptoms, that preexisted the ingestion of Amoxicillin. They also deny that defendants were negligent in administering Amoxicillin to plaintiff.

Plaintiffs' answers to interrogatories did not list Dr. Galton and Dr. Needle as proposed expert witnesses. They have received reports from consulting physicians who examined various records and have expressed opinions as to the cause of Francine's condition and defendants' malpractice, but plaintiffs do not plan to produce any treating doctors as their own witnesses. Dr. Galton was listed as a treating physician for plaintiff's "current disease," but plaintiffs did not submit any report from him.

Defense counsel asked plaintiffs' attorneys to furnish written authorization for obtaining medical records from various doctors and to permit defense counsel to discuss Francine Lazorick's medical condition with those doctors. Consent was given for the medical records, but was denied as to "discussions or conversations." Defendants then moved to compel plaintiff to give such authorization, contending that plaintiffs' attorneys were free to discuss plaintiff's medical condition with treating doctors and defendants should have the same right, especially with doctors who will not be called as plaintiffs' witnesses. The trial judge denied the motion without clearly articulating the basis for his ruling. He referred to the fact that the doctors had not been asked to speak to defense counsel but apparently were willing to do so. He said he would not rule on defendants' request to compel plaintiff to sign an authorization and that he saw no need for intervention in the dispute at that time. In denying the motion he said, "I'm not saying that I might not grant it at some future time," but that he saw no basis for intervening in the dispute "at this point." Defense counsel suggested that he would arrange a meeting with the doctors on notice to his adversary who could then move for a protective order. The judge gave the appearance of accepting this suggestion, so that if plaintiffs' attorneys objected and the doctors would not meet with defense counsel, the motion could be renewed. The trial judge denied the motion, giving as a reason that he had "no reasons to grant" it at that time.

Defense counsel arranged a meeting with Dr. Galton for December 2, 1982 and advised plaintiffs' attorneys by letter dated November 11 that they should move for a protective order if they thought the meeting was improper. Plaintiffs' attorneys replied that they reserved their right to object at trial to the admission of evidence from this unauthorized and inappropriate meeting with plaintiff's treating physicians. To this defense counsel replied that the purpose of the meeting was to investigate evidence, not create it. The response to this was another letter protesting the effort to turn treating physicians into witnesses against plaintiff, which plaintiffs' attorneys termed "wrong as a matter of simple fairness and justice." No motion was made for a protective order, and the meeting with Dr. Galton took place on December 2, followed by his written report stating that Amoxicillin "could have been the causative agent, but it is more likely that it was not the cause of the disease." Plaintiffs contend that this opinion conflicts with opinions expressed by Dr. Galton in the hospital records. Defendants dispute this contention. Later, without meeting with defense counsel, Dr. Needle furnished two reports expressing the opinion that it was impossible to establish that plaintiff's condition was caused by the Amoxicillin. Defendants say they are not offering Doctors Galton and Needle as expert witnesses on the standard of care exercised by defendants but solely as to their opinion as to when plaintiff's illness began and the lack of causal connection between Amoxicillin and that illness.

Plaintiffs' motion to bar the testimony of Dr. Galton and Dr. Needle was heard by a different trial judge. He expressed the view that "public policy" prohibits private interviews of physicians who treat a plaintiff, and that private interviews are not "an appropriate means or method of obtaining the information" to which an adversary is entitled. He stated further: "It is not appropriate for the physician to be placed in a position of advocacy against that physician's own patient. It has a serious tendency to impair, if not destroy, a very important relationship, that between physician and patient," which could jeopardize the effectiveness of treatment and the patient's freedom of choice in seeking medical care. The trial judge concluded that deposing a doctor is preferable to private conferences or interviews because it affords the opportunity to protect the patient's interests. Therefore, he entered an order barring any testimony from Dr. Galton and Dr. Needle, apparently for defense counsel's misconduct in speaking with them.

Even if we agreed with these principles we would question the relief granted in this case because plaintiffs failed to move for a protective order when they had the opportunity to do so. Defendants' attorneys sought to have the issue resolved by motion but were rebuffed apparently because it was not clear that the doctors would not talk to them without the patient's prior approval. After plaintiffs' attorneys were advised of the scheduled meeting with Dr. Galton they should have moved to prevent the meeting from taking place. The problem plaintiffs faced is that there is nothing in the Court Rules or the law of evidence that prohibits an attorney from obtaining unprivileged information through informal discussions with a potential witness. A doctor is not required to discuss a patient's medical condition with the patient's adversary, but there is no express law that prohibits him from doing so, providing he is not disclosing privileged information. Even if defense counsel contravened some unwritten public policy, in the circumstances of this case the sanction imposed seems unfair in the light of plaintiffs' failure to seek a protective order and defendants' prior attempt to obtain a ruling on the issue. Defense counsel could have considered Dr. Galton's opinion as to the cause of plaintiff's illness extremely important in relation to early impressions recorded by him in the hospital record. We understand defendants' position to be that the early diagnoses of serum sickness was proven incorrect by the course of the disease and subsequent medical findings. To utilize the diagnosis in the hospital report without permitting defendants to present Dr. Galton as a witness who could explain his prior and current opinion seems not only unfair but poses a serious evidence...