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Court barred attempt to use treating Drs. Reports: case on point: Carchidi v. Iavicolli, A-4986-08T3 NJ SUP (3/24/2010) -NJ.

CASE FACTS: Hunter Carchidi DuBois was horn in 2000, nearly three months prematurely. He suffers from serious and complex neurological conditions, including cerebral palsy with right hemiparesis. Autism, epilepsy and bilateral deafness. His mother, as his parent and guardian, contends that these conditions were caused by the negligence of doctors at Cooper Hospital. University Medical Center, which included the failure to administer prenatal steroids and take other appropriate measures to prevent or delay her pre term delivery. She further contended that appropriate care would have prevented an intraventricular hemorrhage, resulting in brain damage. The defendants, including those physicians involved in the prenatal care of Hunter, were alleged to have been guilty of medical malpractice, all of which resulted in the injuries sustained. Shortly after his birth, he was treated at the neurology division at duPont Hospital for Children in Wilmington. Delaware. Since 2001. Hunter treated regularly and continuously with the neurology group at Children's Hospital of Philadelphia (CHOP). Since 2001. Hunter treated with Dr. Dennis Dlugos, a member of that group. Hunter's parents chose CHOP and this group because of the outstanding qualifications of the hospital and group and the proximity of CHOP to their home. Hunter's mother, who is a nurse at CHOP, knows that her son's care depends on the free exchange of ideas between the physicians comprising the neurology group, and relies on that free exchange to assure high quality care. The group consists of about twenty-two physicians. On two occasions, in 2003 and 2009, Hunter underwent MRI studies at CHOP, which were interpreted by members of the group. As the deadline for serving expert reports approached. Cooper sought to have Hunter examined by Dr. Robert Clancy, a senior member of the group. Plaintiff's counsel refused. Cooper moved to compel the examination . The motion was denied. During this time frame, Cooper also served on plaintiff expert reports from Drs. Clancy and Dr. Robert Zimmerman, a senior physician in the group. Dr. Clancy's report included an opinion that the Cooper doctors did not breach the applicable standard of care. He also gave his opinion as to causation of Hunter's injuries, which was along the lines previously described as Cooper's position. Dr. Zimmerman's report set forth his review and interpretation of ten neuroimaging studies. The first study was conducted one day after Hunter's birth, and the others over the next two months. He concluded that the study conducted on the day after birth was normal, but the study conducted three days later revealed acute damage in a cerebral artery most likely an infarction. Subsequent studies "show the evolution of that injury." This was supported by Dr. Clancy's causation opinion. These reports were obtained by Cooper without the plaintiff's permission or knowledge. Plaintiff moved to bar Cooper from using Drs. Clancy and Zimmerman as experts. The court granted the plaintiff's motion. Defendants appealed.

COURT'S OPINION: The Superior Court of New Jersey. Appellate Division, affirmed the order entered by the lower court. The court held, inter alia, that since Cooper, without the plaintiff's permission or knowledge, obtained the reports of Drs. Clancy and Zimmerman, they should be barred from introducing them as evidence

LEGAL COMMENTARY: The court reasoned that Drs. Clancy and Zimmerman were not actual treating physicians and could therefore not be used by the defense to give adverse causation testimony based on knowledge and information obtained through treatment. The court further reasoned that because of their membership in the plaintiff's treatment group, it would be improper to allow the defendants to use them as experts against the plaintiff. The court found it significant that each of these treatment groups held itself out as a team. The court was also influenced by the senior status of Drs. Claney and Zimmerman, who were or had been chairs or v ice-chairs with supervisory or managerial authority over the other team members and who provided training for junior team members. The court agreed with both parties that the issue presented to the court was a novel one. Each side argued that the other wanted to have it both ways. Cooper contended that if the doctors arc deemed treating physicians, the applicable precedents in the jurisdiction allow them to give adverse causation testimony; if they are not deemed treating physicians, there is nothing to prohibit them from being used as experts. Thus Cooper argued that under one rationale or the other, their causation testimony must be allowed. Conversely, the plaintiff contended that because the doctors were not treating physicians the could not be allowed to give adverse causation testimony under precedent in the jurisdiction; and although they were not treating physicians, their membership in the plaintiff's treatment group should preclude them from serving as experts against a patient of their group to avoid unwarranted interference with the physician-patient relationship and unwarranted prejudice to the plaintiff at trial. For either reason, the plaintiff urged the banning of their testimony.
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Title Annotation:Medical Law Case on Point
Author:Iavicolli, Carchidi V.
Publication:Medical Law's Regan Report
Article Type:Case overview
Date:Jul 1, 2010
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