HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Friday, October 30, 2020

The Privileged Physician and Medical Malpractice: Why a Qualified Expert Testimonial Privilege Should Not Apply to Defendant Treating Health Care Providers

Kevin Sweeney (University of Connecticut), The Privileged Physician and Medical Malpractice: Why a Qualified Expert Testimonial Privilege Should Not Apply to Defendant Treating Health Care Providers, 52(1) Conn. L. Rev. (2020):

In Redding Life Care, LLC v. Town of Redding, the Connecticut Appellate Court recognized a qualified expert testimonial privilege that precludes discovery of an unretained expert’s opinion. That decision threatens to eliminate relevant and irreplaceable testimony of defendant treating health care providers in medical malpractice cases. The Appellate Court set forth a balancing test to determine if a party can overcome the qualified privilege as applied to a particular unretained expert: (1) whether the expert reasonably should have expected to be called upon to provide opinion testimony in subsequent litigation; and (2) whether there exists a compelling need for expert opinion testimony in the case. This Note analyzes the balancing test set forth in Redding as applied to defendant health care providers who participated in the treatment relevant to malpractice litigation. First, this Note considers whether the need for defendant health care providers’ testimony should overcome the Redding qualified testimonial privilege. Second, this Note explores whether the testimonial privilege violates Connecticut’s liberal rules of discovery as applied to defendant health care providers’ deposition testimony. Part I begins by discussing the risk of losing the expert opinion testimony of defendant treating physicians in medical malpractice litigation, addressing Connecticut’s requirements for expert testimony of treating physicians and the unique role of defendant health care providers. Part II presents a compelling need for defendant health care providers’ expert testimony in medical malpractice litigation, balancing the rights of expert witnesses to be free from testifying with the needs of courts and litigants for their evidence. Part III concludes by challenging the application of a qualified expert testimonial privilege to the discovery stage of medical malpractice litigation, considering the practical difficulties imposed by the Redding privilege in light of Connecticut’s liberal rules of discovery.

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