By Mike A. D’Amico, Esq.
In short, yes.
In order to prevail in a medical malpractice case, the plaintiff must prove that the defendant health-care provider breached the prevailing standard of medical care. Evidence of this standard of care must be presented through a similar health-care provider as the defendant whose conduct is in question. Exactly who is considered a similar health care provider is defined in C.G.S. 52-184c. In sum, a similar provider is one who is board-certified in the same specialty as the defendant(assuming the defendant is board-certified), or someone who is simply trained in the same field of medicine(assuming the defendant is not board-certified).
The Connecticut Supreme Court has long recognized that the plaintiff may present the necessary evidence of the standard of care through the testimony of the defendant health-care provider. Slimak v. Foster, 106 Conn. 366, 371(1927); Snyder v. Pantaleo, 143 Conn. 290, 294(1956). Despite this clear pronouncement, often times defense counsel at deposition have instructed the defendant not to answer standard of care questions. The common arguments are (1) that the defendant has not been disclosed as an expert; (2) that the defendant should not be compelled to give standard of care testimony against his/her will when the defendant has not voluntarily been retained as an expert; and (3)that the plaintiff can acquire opinions of the standard of care through his/her own retained experts. None of these arguments are well-supported in the law.
Initially, the plaintiff certainly cannot disclose the defendant as an expert on the standard of care when the plaintiff has no idea what the defendant’s opinions are. In fact to disclose the defendant as an expert and set forth opinions on the standard of care which are speculation and potentially false is improper. Practice Book section 4-2(b) says that the signing of a pleading is a certification that there is good ground to support it. Therefore, deposition inquiry of the defendant as to his/her thoughts of what the standard of care is and whether or not it was breached must be allowed in order to allow the plaintiff to properly disclose the defendant as an expert. Further, an expert cannot be called at trial who has not been disclosed; and therefore there is no way for a plaintiff to rely on the standard of care opinion of the defendant at trial as Slimak, supra and Snyder, supra allow if a proper disclosure cannot be filed.
As to the second common argument, it is misplaced. Of course, an expert who has no relation to the case cannot be compelled to give expert opinion. For example, if a case is pending against Dr. X, employed by Hospital Y, most will agree that a doctor completely unrelated to the case from another institution, Hospital A, cannot be compelled involuntarily to study the facts of the case and provide expert opinion on the standard of care. This has been observed by some as a form of involuntary servitude. A defendant health-care provider whose conduct is at issue does not stand in these same shoes. The defendant knows the plaintiff, provided the care and treatment at issue and presumably knows what the standard of care is and whether he/she comported with it. And what better evidence of the standard of care and that it was breached than from the defendant himself?
As to the last common argument, it is silly. A plaintiff must always acquire the opinion of his/her own expert on the standard of care prior to filing any medical malpractice complaint. C.G.S. 52-190a. Does this then preclude the plaintiff from ever inquiring of the defendant at deposition about the standard of care? Of course not. If so, this would render the Connecticut Supreme Court opinions of Slimak, supra and Snyder, supra, a nullity.
Although the Connecticut Appellate or Supreme Courts have not addressed this precise issue, well-reasoned Connecticut Superior Court decisions have allowed deposition inquiry on the standard of care from a defendant, or hospital defendant employee whose conduct is at issue. Dunsing v. Hanson, 11 Conn.Law Trib 22(1985)(Berdon, J.); Matzkevich v. Waterbury Hospital Health Center, 41 Conn.Supp. 373, 375-376(1990); Lubin v. Maretz, 1 Conn.L.Rptr. 491(1990); and Kekelik v. Hall-Brooke Hospital, 29 Conn.L.Rptr. 136(2000)(Tierney, J.)
Further, courts around the country have similarly allowed this inquiry at deposition. See generally 88 A.L.R.2d 1186, section 4. The holdings of these cases rest on the foundation that no person has a privilege to refuse to be a witness or to refuse to disclose any relevant matter; and that such obstructive privileges are the exception and not the rule.
And this is a laudable foundation where the civil justice system has as its goal the search for truth and the provision of justice.