Personal Injury Lawyer Blog
It is worth noting that situations similar to those described in this medical malpractice case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser Permanente, U.C. Davis Medical Center, Mercy, Sutter, or any skilled nursing facility.
(Please also note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death case and its proceedings.)
Should [defendant/physicians] be … designated, a full inquiry into their present opinions would be entirely appropriate. But … the inquiry is not appropriate until and unless there is … a[n] [expert] designation.
As we have seen, C.C.P. section 2034 is expressly applicable to the expert opinion of parties to a lawsuit. We see no reason to disrupt the carefully crafted legislative scheme for the regulation of discovery of the identity, qualifications and opinions of expert witnesses. The trial court order that the physician defendants testify at deposition about their present opinion of the medical propriety of their acts, even though they have not been designated as expert witnesses, would have that effect. It is for that reason that we direct that it be set aside. [Id. at pages 1455-1457].
Likewise, Province v. Center of Women’s Health (1994) 20 Cal.App 4th 1673, involved a matter where a severely brain-damaged plaintiff (by her mother/guardian ad litem) alleged defendants committed medical malpractice during her birth/delivery. For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.
At trial, the Province defendant doctors elicited expert testimony from a pathologist who had examined the umbilical cord of plaintiff shortly after birth.
Despite the fact that this pathologist had not been previously designated as a defense expert under C.C.P. §2034 nor had been deposed as an expert, and in complete disregard of plaintiffs repeated objections, the trial Court allowed the pathologist’s testimony.
Upon appeal, the appellate court commented that the lower Court … did not strictly limit [the pathologist’s] testimony to that of a percipient witness and that [J]uror declarations suggest that some jurors may have been swayed by [the pathologist’s] testimony . [Id at 1683].
As such, Province held in pertinent part:
The Discovery Act of 1986 requires full and timely disclosure regarding experts; it has teeth in the form of exclusion and monetary sanctions to ensure compliance for its salutary purposes. On retrial, respondent’s [defendant doctor] counsel must fully comply with the Discovery Act, including permitting [the pathologist] to be deposed. The trial court must limit his testimony to percipient observations if respondent fails to do so. [Id at 1684].
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.