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Drown v. Markowitz

Connecticut Superior Court Judicial District of Hartford at Hartford
Aug 18, 2006
2006 Ct. Sup. 15198 (Conn. Super. Ct. 2006)

Opinion

No. CV 05-4010740

August 18, 2006


MEMORANDUM OF DECISION ON MOTION FOR PROTECTIVE ORDER DATED JULY 17, 2006 BY DEFENDANTS ALEXANDRA FLOWERS AND HARTFORD HOSPITAL


1. FACTS

This is a medical malpractice action. The plaintiff individually as spouse and as Administrator of the Estate of Robert Drown, claims negligence in the care of Robert Drown while he was an inpatient at Hartford Hospital in 2003. Plaintiff's decedent (hereinafter "Robert Drown") was admitted to the hospital on October 26, 2003 with a massive stroke and died at the hospital on November 29, 2003.

One of the defendants in this action is Dr. Alexandra Flowers who is an employee of another defendant, Hartford Hospital. Dr. Flowers gave neurology service to Robert Drown and rendered care and treatment to him on numerous occasions during the initial weeks of his hospitalization. During the final week of the patient's hospitalization when the alleged negligence occurred, Dr. Flowers was away from the hospital on vacation and arranged for other physicians to take care of the patient. She was away from to evening of November 26, 2003 through the evening of Sunday November 30, 2003. The patient died on Saturday, November 29, 2003.

Plaintiff's attorney advised defendants' attorneys that when she deposes Dr. Flowers she anticipates asking Dr. Flowers standard of care questions regarding other healthcare providers who rendered care and treatment to the plaintiff's decedent including healthcare providers who rendered care during Dr. Flowers' absence. The defendants previously named have filed the protective order to assure that Dr. Flowers does not have to provide expert testimony against colleagues, fellow employees of the hospital or other healthcare providers. CT Page 15199

FINDINGS

1. The plaintiff has filed an objection dated July 28, 2006 to the motion for protective order.

2. The parties agree that there is no Connecticut Appellate Court or Connecticut Supreme Court case on this issue.

3. It is well settled law that the extent of discovery and the use of protective orders is clearly within the discretion of the trial judge. Further, such orders may provide that discovery be had only on specified terms and conditions. Of course, the plaintiff may use the defendant, Alexandra Flowers, M.D., as an expert witness as to her own conduct.

4. Plaintiff, however, may not use Dr. Flowers as her expert witness in regard to matters other than her own conduct.

5. Other states have ruled on this issue. Rhode Island stated "absent extraordinary circumstances . . . a non-party expert cannot be compelled to give opinion testimony against his or her will." Owens v. Silvia, 838 A.2d 881 (2003). The Wisconsin Supreme Court has held that "an expert witness shall not be appointed by the judge unless the expert witness consents to act." (Emphasis added.) Burnett v. Alt, 224 Wis.2d 72, 86 (1999). That court also held: "We conclude that this express grant implies a privilege to refuse to testify if the expert is called by a litigant. If a court cannot compel an expert witness to testify, it logically follows that a litigant should not be able to so compel an expert. It makes little if any sense to conclude that a litigant has greater rights than a court with respect to obtaining testimony from experts." C.P.B. Section 42-39 tracks the wording of the Wisconsin Statute. Section 42-39 states in pertinent part, "an expert witness shall not be appointed by the judicial authority unless the expert consents to act." Clearly, here Dr. Flowers is not consenting to her being deposed as an expert witness. Further, federal courts have held that an unretained expert may not be subpoenaed.

Section 42-39 applies only to criminal cases, but it is clear that the same rule can be applied to civil litigation. Further, Conn. Gen. Stat. § 52-149a(b) states in pertinent part "whenever the deposition of a physician, psychologist, chiropractor, naturopathic physician or dentist is so taken, the party requesting the deposition shall pay to the medical expert the fee for giving testimony for the deposition."

In the case of Carvalho v. New Rochelle Hospital, 384 N.Y.S.2d 508 (1976), the Appellate Division held, inter alia, "in an action for malpractice brought against more than one physician, one defendant physician may not be examined before trial about the professional quality of the services rendered by a co-defendant physician . . ."

CONCLUSION

Dr. Flowers has not consented to be an expert witness for the plaintiff. She, of course, may be deposed regarding her own conduct in this matter. The plaintiff is prohibited from asking Dr. Flowers questions as to standard of care regarding other healthcare providers who rendered care and treatment or failed to render care and treatment to the plaintiff's decedent, including healthcare providers who rendered or failed to render care during Dr. Flowers' absence.

Accordingly, a protective order is issued prohibiting the plaintiff from questioning Dr. Flowers about her colleagues, fellow employees of the hospital or other healthcare providers as to her opinion as to what the standard of care was or is and whether or not that standard of care was violated and by whom. Plaintiff may question her regarding her preparation of the discharge summary after the death of Robert Drown. She may also be questioned as to what facts she knows of the conduct of others. However, this questioning is limited to facts that she knows, and she may not be asked her opinion as to those facts or standard of care of anyone except herself.


Summaries of

Drown v. Markowitz

Connecticut Superior Court Judicial District of Hartford at Hartford
Aug 18, 2006
2006 Ct. Sup. 15198 (Conn. Super. Ct. 2006)
Case details for

Drown v. Markowitz

Case Details

Full title:JACQULINE DROWN, ADMIN. ET AL. v. STEWART K. MARKOWITZ, M.D. ET AL

Court:Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Aug 18, 2006

Citations

2006 Ct. Sup. 15198 (Conn. Super. Ct. 2006)
41 CLR 855

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