Medical Malpractice: Treating Physician Cannot Be Expert Witness

A New Jersey appeals court has ruled that defense attorneys cannot use an injured party’s current treating physician as an expert witness to provide testimony regarding the acceptable standard of care in a medical malpractice case.

In the case before the court, the plaintiff had a procedure known as a laparoscopic cholecystectomy, which involved clipping and cutting the plaintiff’s cystic duct as part of the process of removing the gall bladder. During the operation, the surgeon accidentally severed the patient’s common bile duct, which required further surgery. The second surgery was performed by a different doctor.

At trial, the only issue in dispute was whether or not severing the common bile duct was recognized in the medical community as a potential complication of the procedure or whether doing so constituted a breach of the duty of care. During the gathering of evidence, the defendants deposed the doctor who performed the follow-up surgery, who testified that “a bile duct injury…can happen to any surgeon, even surgeons with very high expertise.” The defendants introduced that testimony during trial as evidence that the severing of the common bile duct was not a deviation from the standard of care and, therefore, not malpractice.

The Superior Court of New Jersey, Appellate Division, found the testimony to be inappropriate, ruling that the doctor could testify regarding his diagnosis and treatment of the bile duct injury, but not “how it happened and why it happened, or that it could have happened to the best of surgeons.” The appeals court reversed a jury verdict in favor of the defendants and ordered a new trial.

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