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Bar News - October 22, 2004 Superior Court Rulings on the Questioning of Physicians and Nurses in Med-Mal Depositions By: Ralph E. Holmes Tort Shorts  A FREQUENTLY RECURRING question is whether a doctor or nurse in a medical malpractice case may be questioned at a deposition about other care providers' treatment of the plaintiff. Defense counsel sometimes object on the grounds that the witness has not been disclosed as an expert and/or the witness cannot be compelled to give expert testimony. The first ground generally has no weight, as these depositions almost always occur before plaintiffs are required to disclose their experts, and, in any case, plaintiffs' attorneys cannot disclose what they do not know-namely, the answers to the objected-to questions. Defense objections that witnesses should not be asked to provide expert opinions is usually the focus of the debate. Based on the cases with which I am familiar, the Superior Court appears to have consistently permitted inquiry along these lines in keeping with the liberal approach to discovery in this state. Under Superior Court Rule 35(b)(1), "parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." New Hampshire has adopted a broad view of discoverable material. Superior Court Rule 44 provides that during a deposition, a deponent: shall ordinarily be required to answer all questions not subject to privilege or excused by the statute relating to depositions, and it is not grounds for refusal to answer a particular question that the testimony would be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence and does not violate any privilege. (Emphasis added.) Accordingly, during a deposition, any questions which could lead to the discovery of admissible evidence are permissible. Durocher's Ice Cream, Inc. v. Pierce Construction Co., 106 N.H. 293, 296 (1965). Absent a claim of privilege or manifest irrelevance, a party may not limit the scope of an adverse party's discovery request. Breagy v. Stark, 138 N.H. 479, 482 (1994). Any testimony by one care provider supportive or critical of the care provided by a defendant will likely be credible to the jury. It is commonplace for individuals who have participated in the facts of a case, but also have some professional training or experience, to give opinion testimony based on their knowledge of the facts as well as their expertise. See, e.g., Cyr v. J.I. Case Company, 139 N.H. 193, 200 (1994) (plaintiff's coworker permitted to give opinion testimony regarding her own probable reaction to backup alarm on bulldozer); Kierstead v. Betley Chevrolet-Buick, 118 N.H. 493, 497 (1978) (opinion of defendant's employees, who were auto mechanics, as to whether problem with plaintiff's car could be easily fixed held admissible); Rau, 97 N.H. at 494-495 (1952) (defendant stores' executive allowed to opine a customer would not expect that area where plaintiff fell was for use by public). In Jenkins v. Hitchcock Clinic (Hillsborough, 99-C-269), Judge William Barry considered whether counsel could appropriately instruct a nurse not to answer questions about a fetal heart monitor tracing. As recounted in the Court's Order of May 26, 2000, "Defendants ...specifically, affirmatively and unequivocally instructed and prohibited Nurse Pomeroy from answering any question related to interpretation of the electronic fetal heart monitoring strips recorded after she completed her shift at 1500 hours." Id. at p. 5. After considering counsel's argument that the nurse could not be compelled to offer expert testimony about the care provided by other nurses, Judge Barry ruled: The instructions by counsel for the defendants to Nurse Pomeroy not to answer certain questions that certainly were relevant and concededly within her area of knowledge and/or expertise was without legal basis, totally unjustified, and egregiously wrong. Id. at p. 9 (emphasis added).  In Duarte v. St. Joseph Hospital (Hillsborough, 98-C- 452), Judge Arthur Brennan considered the objections of counsel to deposition questions of a nurse about a fetal heart tracing "on the grounds that she was a fact witness without personal knowledge of the monitoring chart." The Court overruled the objections: The Court finds that, as the supervisory nurse on duty at the time of Hope Duarte's birth, see Fox Depo. At 21, 47-48, Nurse Fox's testimony regarding Hope Duarte's fetal heart-monitoring chart is reasonably calculated to lead to the discovery of admissible evidence. Nurse Fox's opinion would be based upon her approximate 13 years of experience as a supervisory nurse, see id. at 12, and her knowledge of what medical documentation related to births ordinarily contains. See id. at 24. Furthermore, with respect to fetal heart-monitoring, Nurse Fox has received additional training, trains and supervises others and has knowledge as to how charting is done. See id. at 26, 28, 94-95. In view of this testimony, Nurse Fox's testimony is discoverable. Id. pp. 2-3 (emphasis added). In Reed v. Hitchcock Clinic, Inc., (Hillsborough, 89-C-813), Judge David Sullivan considered instructions by counsel of a non-defendant physician employed by a defendant healthcare clinic not to answer deposition questions on the ground that they sought expert testimony. In rejecting this argument, the Court stated: It does not appear to the court that any of the questions asked of Dr. Davis called for expert opinions. However it is irrelevant in a deposition whether or not Dr. Davis will be called as an expert. A doctor does not have to be listed as an expert to answer questions in a deposition. Order of October 29, 1991 (emphasis added). In Swenson v. Sise (Cheshire, 95-C-109), Judge Arthur Brennan ruled that counsel could elicit opinion testimony from a treating physician: The plaintiffs' motion is granted. The court finds that the questions asked of the treating physician are within the scope of discovery. It is true that the questions go to opinion testimony, but that fact does not categorize the defendant as an expert witness for discovery purposes. As to the defendants' argument that such discovery is premature and somehow interferes [with] the parties orderly preparation of trial, or for settlement, the court is not convinced. Order of February 22, 1996 (emphasis added). In Comeau v. Hitchcock Clinic, Inc., (Merrimack, 03-C-0274), Judge Kathleen McGuire considered whether the on-call obstetrician could be asked about the care provided by a nurse-midwife, whom he was to supervise and consult with in the event of labor and delivery difficulties. The Court allowed the inquiry, but based on counsel's representations at the hearing, noted that the inquiry would not specifically address "whether any of the defendants violated a duty of care." The Court ruled: The Court finds this testimony is relevant to issues material in this case such as whether: 1) the on-call obstetrician should have been told of the fetal heart monitor results; 2) there was any need to request the assistance of the on-call obstetrician; and 3) the policies of Concord Hospital were followed in this case. Dr. Kegel is not being asked to give his opinion about whether any of the defendants violated a duty of care. Order of August 3, 2004 (emphasis added). Finally, in Page v. SAU #33 et al. (Rockingham, 98-C-50), Judge Kenneth McHugh ruled in a non-medical case that it was inappropriate for counsel to instruct a witness not to answer questions seeking opinion testimony: Simply stated, there was no legitimate basis for counsel for SAU #33 to instruct Thomas Carroll not to answer the pending question.... The pleadings filed by plaintiff's counsel have convinced the Court that expert-type questions calling for opinion answers can be asked of any witness that has the ability to answer them. Such evidence can be extremely helpful to a jury in deciding liability, whether that evidence is in favor of the plaintiffs or the defendants. The issue with this type of evidence is weight not admissibility.... Order of July 8, 1999 (emphasis added). Burnham v. Exeter Hospital, (Rockingham, 93-C-01203), is contrary to the trend above. In Burnham, Judge Patricia Coffey ruled that counsel could not elicit expert opinions from treating physicians of the plaintiffs. The ruling states: . . . Superior Court Rule 35.b, which provides in pertinent part that a party may discover the opinions or facts of a person retained as an expert but not expected to be called as a witness at trial 'only upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.' Wheeler v. School Admin. Unit 21, 130 N.H. 666, 669 (1988), quoting Rule 35. This standard is not satisfied in the case before the Court. First, the rule applies only to those who have agreed to act as experts. In this case, the persons who are the subject of the motion to compel are not 'experts' as understood by the Court. Second, the circumstances of this case are not 'exceptional' as described within the Rule because there are ample alternatives open to the plaintiffs to obtain other persons as expert witnesses. Thus, the Rule which provides for compulsion of expert opinion at the discovery stage does not dictate compulsion in this case. Order dated November 2, 1994, p. 3-4 (emphasis added). Although this decision may be impossible to reconcile fully with the other rulings discussed above, it is distinguishable in that the case involved physician witnesses who were neither defendants nor apparently employees of any defendant. The two physician witnesses each engaged separate counsel to defend their depositions. While Burnham does not address this fact specifically, a request to limit a deposition inquiry may have more force if advanced by a non-party physician not employed by a defendant. Ralph F. Holmes, of the law firm of McLane, Graf, Raulerson & Middleton in Manchester, regularly writes "Tort Shorts," covering developments in personal injury litigation issues. He can be reached at ralph.holmes@mclane.com.
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