Medical Malpractice Case of the Month
February 2002

A Massachusetts trial court has ruled that a medical malpractice defendant may be compelled to answer deposition questions asking whether he currently has information which would have caused him to treat the claimant in a different manner.
A physician was sued for malpractice in his diagnosis and treatment of a patient's fatal illness. The physician was deposed by the plaintiff's attorney, who posed a series of questions designed to ascertain whether the physician currently had medical knowledge which would have caused him to act differently in his treatment of the patient if he had had the knowledge at the time of treatment. The physician's counsel instructed the physician not to answer these questions, taking the position that his client could not be compelled to answer questions based on knowledge acquired after the patient's treatment or about any opinion he may hold on any subject. Following the deposition, the plaintiff moved to compel answers to the questions. The court granted the plaintiff's motion, ruling that defense counsel had acted improperly in instructing the physician not to answer the questions. In so ruling, the court relied upon a recently enacted Massachusetts rule of civil procedure which prohibits an attorney from instructing a deponent not to answer questions except where necessary to preserve a privilege or other protection against disclosure. The physician's attorney argued that his client was a fact witness, and that the questions posed by the plaintiff's counsel were appropriate only for an expert witness. The court rejected this argument, pointing out that although defense counsel was now representing that the physician would not offer any opinion testimony at trial, defense counsel had refused to give such an assurance when questioned at the deposition. Because the possibility existed that the physician would present opinion testimony.

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