Id. at 459, 521 A.2d 1377. But in Kurdek v. West Orange Board of Education, 222 N.J. Super. 218, 536 A.2d 332 (Law Div. 1987), the court allowed the defendant to call the plaintiff's treating physician as its witness on the issue of permanency of injury, reasoning that a trial is "essentially a search for the truth." Id. at 226, 536 A.2d 332. The court informed the witness that he had no obligation to serve as an expert for the defendant, but the doctor was willing to do so.
As we have previously explained, the "inevitable effect of allowing the privilege . . . is the withholding of evidence, often of the most reliable and probative kind, from the trier of fact." State v. Dyal, 97 N.J. 229, 237, 478 A.2d 390 (1984); see Graham, supra, 126 N.J. at 373, 599 A.2d 149; Kurdek v. Board of Educ., 222 N.J. Super. 218, 226, 536 A.2d 332 (Law Div. 1987); McCormick, Handbook of the Law ofEvidence § 105 at 390 (4th ed. 1992) (McCormick) (stating that privilege "essentially runs against the grain of justice, truth and fair dealing"). The traditional justification for the physician-patient privilege is that it encourages patients to disclose freely information needed for the diagnosis and treatment of disease and injury. State v.Schreiber, 122 N.J. 579, 587, 585 A.2d 945 (1991); McCormick, supra, § 103 at 384.
But a plaintiff's treating doctors can testify, and can be compelled by subpoena to testify, for a defendant "concerning their physical examinations and diagnoses of plaintiff." Spedick v. Murphy, 266 N.J. Super. 573, 592, 630 A.2d 355 (App.Div. 1993); see also Kurdek v. West Orange Educ. Bd., 222 N.J. Super. 218, 536 A.2d 332 (Law Div. 1987) (permitting defendant to call plaintiff's treating physician to state his prognosis of no permanency). Plaintiffs here accept that Drs. Chutorian, Buchhalter and Schneider are "treating physicians" and that their testimony is not subject to the physician-patient privilege.
Id., at 334, 531 A.2d 1379. See also Kurdek v. West Orange Bd. of Educ., 222 N.J. Super. 218, 536 A.2d 332 (Law Div. 1987). Neither Serrano v. Levitsky, 215 N.J. Super. 454, 521 A.2d 1377 (Law Div. 1986), nor Piller v. Kovarsky, 194 N.J. Super. 392, 476 A.2d 1279 (Law Div. 1984), are to the contrary.
While we acknowledge some authority to the contrary, we do not see the fiduciary nature of the physician-patient relationship as justification for restricting access to a treating physician's opinions. See Piller v. Kovarsky, 194 N.J. Super. 392, 476 A.2d 1279 (1984) (fiduciary nature of the relationship precludes physician from testifying against his patient); but see Kurdek v. West Orange Bd. of Educ., 222 N.J. Super. 218, 536 A.2d 332 (1987) (treating physician's adverse testimony admissible because physician-patient privilege waived by placing physical condition at issue). The third reason given by the Court of Appeals for requiring a trial court to make a record of its admission of a treating physician's adverse testimony was the inherent prejudice of such testimony.
"A lawsuit is not a parlor game; it is a solemn search for truth conducted by a court of law." Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 226, 536 A.2d 332 (Law Div.1987). "'[P]retrial procedures make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'"
Div. 1990). "A lawsuit is not a parlor game; it is a solemn search for truth conducted by a court of law." Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 226 (Law Div. 1987). "'[P]retrial procedures make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'" Kernan v. One Wash.Park Urban Renewal Assoc., 154 N.J. 437, 467 (1998) (quoting U.S. v. Proctor & Gamble Co., 356 U.S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958)).
We have not been asked to decide whether a current or past treating physician can under any circumstances be retained as an expert witness or consultant for the defense in a patient-plaintiff's own case. Compare Piller v. Kovarsky, 194 N.J.Super. 392, 399, 476 A.2d 1279 (Law Div.1984) (treating physician was precluded from testifying as a liability expert against patient-plaintiff's claims in medical malpractice action); Serrano v. Levitsky, 215 N.J.Super. 454, 460, 521 A.2d 1377 (Law Div.1986) (defendant could not make use at trial of opinion in treating physician's report that defendant-doctor did not commit malpractice) with Kurdek v. W. Orange Bd. of Educ., 222 N.J.Super. 218, 226, 536 A.2d 332 (Law Div.1987) (treating physician was permitted to testify on behalf of the defendant that patient-plaintiff's injury was not permanent); Cogdell v. Brown, 220 N.J.Super. 330, 334, 531 A.2d 1379 (Law Div.1987) (in malpractice action, plaintiff was permitted to call as an expert witness a non-treating physician who was originally retained as an expert by defendant doctor). In this appeal, defendants and amici curiae argue that the May 26, 2011 disqualification and protective order profoundly impairs defendants' ability to defend these lawsuits because it prevents them from employing qualified experts in cases against plaintiffs other than their own current or past patients.
"A lawsuit is not a parlor game; it is a solemn search for truth conducted by a court of law." Kurdek v. W. Orange Bd. of Educ., 222 N.J. Super. 218, 226, 536 A.2d 332 (Law Div.1987). "'[P]retrial procedures make a trial less a game of blind man's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.'"
Similarly, in Lazorick v. Brown, 195 N.J. Super. 444, 456, 480 A.2d 223 (App.Div. 1984), the patient-physician privilege was held not to preclude defendants from interviewing plaintiff's treating physician in a medical malpractice trial. Accord Kurdek v. West Orange Bd. of Educ., 222 N.J. Super. 218, 226, 536 A.2d 332 (Law Div. 1987). And in In re Murtha, 115 N.J. Super. 380, 387, 279 A.2d 889 (App.Div.), certif. denied, 59 N.J. 239, 281 A.2d 278 (1971), the priest-penitent privilege was held inapplicable to a teaching nun.