Rogotzki v. Schept

• Decision Date: 28 April 1966
• Docket Number: No. A--141,A--141
• Citation: 91 N.J.Super. 135,219 A.2d 426
• Parties: Katherine ROGOTZKI, as guardian ad litem, etc., et al., Plaintiffs-Appellants, v. Dr. Samuel S. SCHEPT and Dr. William Jay Snyder, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 135

91 N.J.Super. 135

219 A.2d 426

Katherine ROGOTZKI, as guardian ad litem, etc., et al Plaintiffs-Appellants, v. Dr. Samuel S. SCHEPT and Dr. William Jay Snyder Defendants-Respondents.

No. A--141.

Superior Court of New Jersey Appellate Division.

Argued Nov. 15, 1965.

Decided April 28, 1966.

Nicholas H. Politan, Jersey City, for appellants (Krieger, Chodash & Politan, Jersey City, attorneys).

Robert E. Tarleton, Jersey City, for respondent Dr. Samuel S. Schept (Beggans & Keale, Jersey City, attorneys, James P. Beggans, Jersey City, of counsel).

William P. Braun, Newark, for respondent Dr. William Jay Snyder (J. Emmet Cassidy, Hackensack, attorney).

Before Judges GOLDMANN, FOLEY and COLLESTER.

The opinion of the court was delivered by

GOLDMANN, S.J.A.D.

Plaintiffs appeal by leave of court from a Law Division interlocutory order denying their motion to compel defendants to answer certain questions, over 70 in number, put to them in the course of depositions. This is a medical malpractice action wherein the infant plaintiff suing by her guardian Ad litem, seeks damages for permanent injuries caused by defendants' negligent diagnosis and treatment. Her parents sue Per quod.

Infant plaintiff, then six years old, was admitted to the North Hudson Hospital by defendant Dr. Schept, who performed an appendectomy on May 25, 1953, assisted by defendant Dr. Snyder. She was discharged as 'cured' on May 30. She was, in fact, not cured and had to be readmitted to the hospital. The second operation, performed June 9, 1953, this time by Dr. Snyder assisted by Dr. Schept, revealed a postoperative peritonitis, the result of a fecal fistula. It would appear that the girl was subsequently transferred to another hospital where she had to undergo further treatment and operations.

As set forth in the complaint and pretrial order, defendants' alleged negligence consisted of their failure properly to diagnose and treat the infant for appendicitis; negligently performing an appendectomy; unnecessarily cutting into areas that were not connected with the appendectomy; failure to practice aseptic techniques; failure properly to diagnose and treat the child subsequent to the appendectomy; negligently treating and abandoning her by allowing her discharge from the hospital as cured, when in fact she was not; failure properly to treat, diagnose and operate upon her subsequent to her readmission to the hospital, and negligently diagnosing, treating and operating upon plaintiff.

Defendants were deposed at some length on three different dates. In the course of these examinations questions were propounded by plaintiffs which related to defendants' findings, diagnoses and opinions while they were engaged in treating infant plaintiff. Defense counsel directed their respective clients not to answer a number of these questions, principally on the basis that they called for expert professional opinion. Plaintiffs moved to compel defendants to answer the questions as propounded. Their motion was denied, and we thereafter granted leave to appeal from the interlocutory order of the Law Division.

The reasons for some of defendants' objections were that the questions put were repetitious, oppressive, unintelligible, or without foundation. Such questions do not fall strictly within the legal issue posed on this appeal, set out in plaintiffs' 'Statement of Questions Involved':

'In a malpractice action, may a defendant doctor be examined at depositions with relation to his findings, diagnosis (diagnoses) and opinions concerning his treatment of the plaintiff?'

As noted hereinafter, the objections just mentioned were in some instances properly taken. However, most of the 70-odd objections fall squarely within the stated issue.

We do not deal with the familiar situation of a party seeking discovery of an expert witness engaged by the adverse party and who is later to testify for that party. Here, the experts are defendants themselves. Nonetheless defendants assert, and the trial judge agreed, that a treating physician who is a party defendant may not be compelled to answer on depositions such questions as call for his expert opinions or conclusions related to the treatment he rendered.

Defendant Snyder argues that the ruling below is supported by that part of R.R. 4:16--2 which provides:

'* * * A party may require any other party to disclose the names and addresses of proposed expert witnesses; except as provided in R.R. 4:25--2 (report of findings), such disclosure shall be solely for the purpose of enabling the party to investigate the qualifications of such witnesses in advance of trial. * * *'

Pointing to the word 'solely,' he claims that no other information may be obtained from such an expert, even though he be a party to the action. His reliance upon this single sentence in R.R. 4:16--2 and its use of the word 'solely' is misplaced.

R.R. 4:16--1 states that

'After the commencement of the action, any party may take the testimony of any person, including a party, by deposition upon oral examination * * * for the purpose of discovery * * *.'

And R.R. 4:16--2 directs that

'Unless otherwise ordered by the court as provided by Rule 4:20--2 (orders for the protection of parties and deponents) or 4:20--4 (motion to terminate or limit examination), the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party * * *. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. * * *'

The sentence upon which Dr. Snyder relies appears much later in R.R. 4:16--2 and is addressed to a limited subject matter--the requirement that any other party disclose the names and addresses of his proposed expert witnesses so that their qualifications may be investigated prior to trial.

By very definition, the gravamen of the charge of malpractice involves the diagnoses, treatments and opinions rendered by both defendants in their treatment of infant plaintiff. They were engaged by her parents (plaintiffs in this action) and were paid by them, and it is as a result of their services, treatments and medical opinions, formulated at the time they were discharging their duty as treating physicians, that this action is pending.

R.R. 4:16--12 is an adaptation of Federal Rule of Civil Procedure 26(b). It was specifically designed to encourage and foster full pretrial discovery of all matters not privileged and not specifically excepted from the operation of the rule (such as the work product of an attorney), which are relevant or which may lead to relevant evidence concerning the respective positions of a plaintiff or defendant. Our discovery rules are designed 'to afford parties litigant avenues of inquiry before trial in order that substantial justice might be achieved.' Callahan v. National Lead Co., 4 N.J. 150, 156, 72 A.2d 187 (1950).

Liberal procedures for discovery, as the late Chief Justice Vanderbilt said, are essential to any modern judicial system in which the search for truth in aid of justice is paramount. Lang v. Morgan's Home Equipment Corp., 6 N.J. 333, 338, 78 A.2d 705 (1951). More than a decade ago this court, in Interchemical Corp. v. Uncas Printing & Finishing Co., Inc., 39 N.J.Super. 318, 120 A.2d 880 (1956), clearly indicated that the broadest possible latitude should be accorded pretrial discovery. The discovery rules, we said, 'displaced what has been called the 'sporting' concept of a law action which all too often characterized the former practice. They inaugurated a permanent open season on facts.' (at page 325, 120 A.2d at page 883)

Defendants apparently concede that discovery may be had as to the treatment they rendered, their office records, and all objective facts within their knowledge. This is evident from a reading of the depositions and their argument on this appeal. However, they continue to object to any inquiry on depositions with regard to their opinions and conclusions because the answers called for by the questions put would require their 'expert opinions.' Dr. Schept, who presents the main argument in defense of this position, relies on Hull v. Plume, 131 N.J.L. 511, 37 A.2d 53 (E. & A.1944), where, in a medical malpractice suit, the court held that plaintiff could properly call upon defendant doctors to testify despite the fact that they were adverse parties, by virtue of the statute R.S. 2:97--12 (now N.J.S. 2A:81--11), which permitted examination of an adverse party as a witness. However, they could not be called and compelled to give expert testimony against their will. We do not consider the Hull case as authority binding upon us in the present circumstances. In the first place, it involved testimony sought to be elicited of a defendant doctor at the trial itself. Secondly, the questions there objected to endeavored to elicit from the witness 'information as to Various forms or hypothetical methods of treatment, and to obtain directly or indirectly his own opinion as to such matters, * * *.' (at page 516, 37 A.2d at page 56; italics ours)

As we have already pointedly observed, this case involves questions put at pretrial discovery and not at the trial itself. Were we called upon to pass on the question considered in Hull, and were the Hull opinion that of a court other than our former Court of Errors and Appeals, we would deem its result somewhat less than an enlightened one. In our view, it runs counter to the trend of liberal decisions where the aim is to reach at the truth of the matter, rather than indulge in the niceties which have so often characterized evidence law in the past.

A ready example of the more enlightened and practical view is McDermott v. Manhattan Eye, Ear & Throat...