Daily Blast October 19, 2011

Here is a new medical expert disclosure case you might find of interest. On October 19, 2011, Division One of the Second Appellate District Court of Appeal (LA) published Dozier v. Shapiro (Oct. 19, 2011, B224316) ___ Cal.App.4th ____, which held that a treating physician can be “transformed” into a retained expert when the physician receives additional materials from counsel following his deposition to enable him to testify about an opinion (e.g.,. the standard of care) not formed in connection with his physician-patient relationship. (Slip opn., p. 13.) When this occurs, the attorney must comply with the expert witness information exchange requirements under Code of Civil Procedure section 2034.210 or the physician will be precluded from testifying as to information learned outside of the physician-patient relationship. (Ibid.)

Plaintiff Dozier sued Dr. Shapiro claiming Dr. Shapiro’s professional negligence caused him to undergo a total left knee replacement. (Slip opn., p. 2.) Defendants deposed Dr. Zeegen, the physician who performed Dozier’s knee replacement. (Ibid.) At the deposition, Dr. Zeegen stated that he never determined whether Dr. Shapiro’s treatment fell below the standard of care. (Id. at p. 15.) Dozier’s attorney actually objected to any questions relating to whether or not Dr. Shapiro breached the applicable standard of care, stating that Dr. Zeegen was not being deposed as an expert. (Id. at pp. 2-3.) 

Dozier later designated three experts under section 2034.210, none of which included Dr. Zeegen. (Slip opn., p. 4.) Dr. Zeegen was listed only as one of nine “non-retained percipient experts whose testimony may be elicited at the time of trial.” (Ibid.) Dozier did not list any statement of qualifications, fees charged, or the general substance of anticipated testimony. (Ibid.) Further, Dozier never informed defendants of any change in Dr. Zeegen’s status or in his testimony. (Id. at p. 15.) When Dozier’s counsel informed the court that Dr. Zeegen was his only potential witness on the issues of standard of care and causation, Dr. Shapiro moved to dismiss the case.  The court granted the motion to dismiss and the Court of Appeal affirmed the judgment of dismissal. The appellate court found that Dozier’s request that Dr. Zeegen testify to opinions based on materials (X-rays and other documents) provided to him after his deposition (not in connection with his treatment of Dozier) had transformed Dr. Zeegen into a retained expert. (Id. at p. 13.) As a result, Dozier’s counsel was obligated to notify opposing counsel of the change in Dr. Zeegen’s status, which he never did. (Ibid.)

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