Testimony of Treating Doctors

Brien Roche

Calling a plaintiff’s treating physician as a witness can be a problem.  Under Virginia Code § 8.01-399 the doctor may be limited to testifying to what is in the treatment record.  If the treating doctor is called by the plaintiff, then that doctor should be allowed to testify freely.  If the doctor is testifying as an expert, then there should be an expert designation that was timely filed. 

Virginia Code § 8.01-399.A and B contemplate essentially three (3) instances wherein the treating doctor can testify:  (a) with the consent of the patient; (b) through formal discovery or (c) through testimony at trial.  If the treating doctor is called by the defendant, then under Virginia Code § 8.01-399.B the doctor is probably limited to what is in his contemporaneous notes.  The purpose of this Code section is essentially to protect the plaintiff from the treating doctor i.e., not allowing the treating doctor to essentially turn on the plaintiff and provide expert testimony contrary to what is in the treating doctor’s contemporaneous file.  

That problem is then further compounded in that some entities will not allow their treating doctors to testify as to causation.  That is, they will not be allowed to testify as to what was the cause of the patient’s injury.

The way to get around that is to first start with the treatment.  That is, have the doctor explain exactly what the treatment was.  Treatment may have been non-surgical or it may have been surgical. 

Then ask the doctor simply why that treatment was provided.

All of this can then be further tied together through any retained expert that you bring to court who testifies as to what caused the medical condition for which the treatment was rendered.

Testimony of Treating Doctors May Be Limited

See my book on Objections. In particular see the chapter on experts.

In questioning the treating doctor, it is probably important to have that witness explain that their employer does not allow them to render expert testimony.  It’s not that the doctor doesn’t have an expert opinion.  It is simply that they’re not allowed to render it by their employment contract.  It’s probably a good idea to do the evidence deposition of the treating doctor first.  That way you know exactly what holes need to be filled in through your retained expert.

These treating doctors should be disclosed as potential experts.  The disclosure may consist primarily of either reciting or simply incorporating the medical records.  Presumably the doctor will at least recite what is in the medical record. 

With this type of a record you have first the testimony of the treating doctor as to what was done, what the prelude was that led to the treatment and then the final wrap-up through a retained expert.  That retained expert then ties up any loose ends that may have been left dangling by the treating doctor.

Cooperation of Doctors

On July 1, 2021 the General Assembly passed a statute requiring that every health insurance carrier include in its contract a provision that prohibits a provider from discriminating against any enrollee solely due to the enrollee’s status as a litigant in pending litigation or potential litigation due to being involved in a motor vehicle crash.  That Code section is 38.2-3407.15.  That could be a powerful weapon in terms of inducing a doctor to cooperate.  

Call, or contact us for a free consult. Also for more info on testimony of treating doctors see the Wikipedia pages. Also see the post on this site dealing with expert issues.