NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4986-08T34986-08T3

CATHERINE KENNEDY CARCHIDI, as

parent and guardian of HUNTER

CARCHIDI DUBOIS,

Plaintiff-Respondent,

v.

MICHELLE A. IAVICOLI, M.D., RICARDO

CARABALLO, M.D., ROBIN L. PERRY, M.D.,

RICHARD L. FISCHER, M.D., DR. KARIN

WITT, SUSAN I. KAUFMAN, D.O., DR.

STACIE MACDONALD, NATALIE FRANZBLAU,

M.D., BRIAN LEVE, M.D.,

Defendants-Respondents,

and

THE COOPER HOSPITAL/UNIVERSITY MEDICAL

CENTER, THE COOPER HEALTH SYSTEM, and

WOMEN'S HEALTH ASSOCIATES and/or COOPER

OB-GYN,

Defendants-Appellants.

________________________________________________________________

Argued December 7, 2009 - Decided

Before Judges Lisa, Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-8005-06.

Walter F. Kawalec, III, argued the cause for appellants (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Stephen A. Ryan of the Pennsylvania bar, admitted pro hac vice, Mr. Kawalec and David J. Krolikowski, on the briefs).

Jeffrey M. Kornblau argued the cause for respondent Catherine Kennedy Carchidi (Kornblau & Kornblau, P.C., attorneys; Mr. Kornblau and Lynn Sare Kornblau, on the brief).

Mayfield, Turner, O'Mara, Donnelley & McBride, attorneys for respondents Dr. Stacie MacDonald, Dr. Karin Witt and Brian Leve, M.D., rely on the brief of appellants.

Stahl & DeLaurentis, P.C., attorneys for respondent Susan I. Kaufman, D.O., rely on the brief of appellants.

Parker McCay, attorneys for respondents Michelle A. Iavicoli, M.D., Ricardo Caraballo, M.D. and Natalie Franzblau, M.D., rely on the brief of appellants.

Respondents Richard L. Fischer, M.D. and Robin L. Perry, M.D. have not filed briefs.

Britcher, Leone & Roth, L.L.C., attorneys for amicus curiae New Jersey Association for Justice (E. Drew Britcher and Jennifer Widmann Garcia, on the brief).

Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for amicus curiae New Jersey Hospital Association (Thomas B. Leyhane, of counsel and on the brief).

The opinion of the court was delivered by

LISA, P.J.A.D.

We granted defendant, Cooper Health Systems (Cooper), leave to appeal two interlocutory orders in this medical malpractice case that (1) precluded Cooper from utilizing two particular physicians as causation experts, and (2) precluded one of those physicians from examining plaintiff. The two physicians never treated plaintiff but were members of the physician group that has regularly treated plaintiff since 2001, when he was one year old, for the injuries resulting from the alleged malpractice at the time of his delivery and birth. For the reasons that follow, we affirm.

Plaintiff was born in 2000, nearly three months prematurely. Plaintiff suffers from serious and complex neurological conditions, including cerebral palsy with right hemiparesis, autism, epilepsy and bilateral deafness. Plaintiff contends that these conditions were caused by the negligence of doctors at Cooper, which included the failure to administer prenatal steroids and take other appropriate measures to prevent or delay plaintiff's preterm delivery. Plaintiff contends that appropriate care would have prevented him from sustaining an intraventricular hemorrhage, resulting in brain damage. Defendants deny any negligence. They also deny that plaintiff suffered an intraventricular hemorrhage. They contend the cause of plaintiff's brain damage was a left middle cerebral artery infarction, which was brought on by an infection (chorioamnionitis) in the mother and her premature rupture of membranes precipitating premature delivery, all of which could not have been avoided.

Shortly after his birth, plaintiff treated with the neurology division at duPont Hospital for Children in Wilmington, Delaware. Since 2001, he has treated regularly and continuously with the neurology group at Children's Hospital of Philadelphia (CHOP). Since 2001, plaintiff has primarily treated with Dr. Dennis J. Dlugos, a member of that group, and he has seen other physicians and nurse practitioners in the group from time to time. Plaintiff's parents chose CHOP and this group because of the outstanding qualifications of the hospital and group and the proximity of CHOP to their home in South Jersey. Having this facility and group nearby for emergency situations, with plaintiff's records available and health care providers familiar with his situation was also a selection factor. Plaintiff's mother has taken plaintiff to CHOP in emergency situations since 2005, and in the last year and one half the frequency of emergency visits has increased due to an escalation in plaintiff's neurological problems.

Plaintiff's mother, who is a nurse at CHOP, knows that her son's care depends on the free exchange of ideas between the physicians comprising the neurology group, and she relies on that free exchange to assure high quality care for her son. The neurology group consists of about twenty-two physicians.

On two occasions, in 2003 and 2009, plaintiff underwent MRI studies at CHOP, which were interpreted by members of the neuroradiology group. Further studies are anticipated.

As the deadline for serving expert reports approached, Cooper sought to have plaintiff examined by Dr. Robert R. Clancy, a senior member of the CHOP neurology group. Plaintiff's counsel refused. Cooper moved to compel the examination. The motion was denied.

During this time frame, Cooper also served on plaintiff expert reports from Dr. Clancy and Dr. Robert A. Zimmerman, a senior physician in CHOP's neuroradiology group. Dr. Clancy's report included an opinion that the Cooper doctors did not breach the applicable standard of care. He also gave his opinion as to causation of plaintiff's injuries, which was along the lines we previously described as Cooper's position. Dr. Zimmerman's report set forth his review and interpretation of ten neuroimaging studies. The first study was conducted one day after plaintiff's birth and the others over the next two months. He concluded that the study conducted on the day after birth was normal but the study conducted three days later revealed an acute left middle cerebral artery infarction, and that the subsequent studies "show the evolution of that injury." This supported Dr. Clancy's causation opinion.

Cooper obtained the reports from Drs. Clancy and Zimmerman without plaintiff's permission or knowledge. Plaintiff moved to bar Cooper from using Drs. Clancy and Zimmerman as experts. Cooper advised the court and plaintiff that it did not intend to elicit from Dr. Clancy his opinion that the Cooper doctors did not breach the applicable standard of care. Cooper stated its intention to use both of these witnesses only to render opinions on causation, presumably adverse to plaintiff.

The court granted plaintiff's motion. Considering the rationale and holdings in Stigliano v. Connaught Laboratories, Inc., 140 N.J. 305 (1995), and other cases, the court reasoned that Drs. Clancy and Zimmerman were not actual treating physicians and could therefore not be used by the defense to give adverse causation testimony based on knowledge and information obtained through treatment. The court further reasoned that because of their membership in plaintiff's treatment group, it would be improper to allow the defense to use them as experts against plaintiff. The court found it significant that each of these treatment groups held itself out as a team. The court was also influenced by the senior status of Drs. Clancy and Zimmerman, who were or had been chairs or vice-chairs with supervisory or managerial authority over other team members and who provided training for junior team members.

Both sides agree that the issue presented is a novel one. Each argues that the other wants to have it both ways. Cooper says if the doctors are deemed treating physicians, the applicable precedents in this jurisdiction allow them to give adverse causation testimony; if they are not deemed treating physicians, there is nothing to prohibit them from being used as experts. Thus, Cooper argues that under one rationale or the other, their causation testimony must be allowed. Plaintiff says because the doctors are not treating physicians they cannot be allowed to give adverse causation testimony under the Stigliano rationale; and, although they are not treating physicians, their membership in plaintiff's treatment group should preclude them from serving as experts against a patient of their group to avoid unwarranted interference with the physician-patient relationship and unwarranted prejudice to plaintiff at trial. For either reason, plaintiff urges barring the testimony.

We resolve the conundrum by analyzing the nature of the physician-patient privilege, the extent of the waiver of the privilege upon the filing of a lawsuit placing at issue plaintiff's medical condition, and the legitimate interests of the respective parties as well as the interest of the public and the judicial system in ascertaining the truth. In doing so, we come down on the side of plaintiff.

The physician-patient privilege generally protects from disclosure confidential information transmitted between a physician and patient. N.J.S.A. 2A:84A-22.1, -22.2; N.J.R.E. 506(a), (b). For these purposes a "patient" is one who, for the sole purpose of treatment or diagnosis preliminary to treatment of his or her physical or mental condition "consults a physician, or submits to an examination by a physician." N.J.S.A. 2A:84A-22.1; N.J.R.E. 506(a). However, a patient who brings an action in which his or her condition is an element or factor, waives the privilege. N.J.S.A. 2A:84A-22.4; N.J.R.E. 506(d); Stigliano, supra, 140 N.J. at 312.

Plaintiff consulted Dr. Dlugos and submitted to examination by him solely for treatment and diagnosis preliminary to treatment. Dr. Dlugos is a treating physician within the meaning of this rule. He can be compelled to testify about facts known to him based on information received from plaintiff in the course of treatment. It is well settled that such factual information includes diagnosis, treatment and prognosis. Stigliano, supra, 140 N.J. at 312; Spedick v. Murphy, 266 N.J. Super. 573, 592 (App. Div.), certif. denied, 134 N.J. 567 (1993).

In Stigliano, the Court considered the use by the defense of causation testimony by three physicians plaintiff had consulted for diagnosis and potential treatment of a seizure disorder, which plaintiff contended was caused by a vaccine. Stigliano, supra, 140 N.J. at 308. The three doctors opined that the vaccine was not the cause of the seizure disorder. Ibid. In this court's opinion in Stigliano, we explained that the opinions of those three doctors on causation "were not unrelated to the treatment, unnecessary, volunteered or unsolicited" and that "management of a seizure disorder requires assessment of its nature, severity and cause." Stigliano v. Connaught Labs., Inc., 270 N.J. Super. 373, 378 (App. Div. 1994), aff'd, 140 N.J. 305 (1995). We therefore saw "no reason to distinguish the doctors' testimony as to causation and their testimony as to diagnoses and prognoses" because "[a]ll arise out of and are inextricably linked to [the plaintiff]'s treatment." Id. at 379. The Supreme Court agreed that the scope of unprivileged factual information available from a treating physician should include causation. The Court explained it this way:

Although the treating doctors are doubtless "experts," in this case they are more accurately fact witnesses. Their testimony relates to their diagnosis and treatment of the infant plaintiff. In this context, moreover, the characterization of the treating doctors' testimony as "fact" or "opinion" creates an artificial distinction. A determination of causation partakes of both fact and opinion. The critical point is that the treating doctors to treat their patients must determine the cause of a disease, whether that determination is characterized as fact or opinion.

As fact witnesses, the treating doctors may testify about their diagnosis and treatment of [the infant plaintiff]'s disorder, including their determination of that disorder's cause. Their testimony about the likely and unlikely causes of [the infant plaintiff]'s seizure disorder is factual information, albeit in the form of opinion.

[Stigliano, supra, 140 N.J. at 314.]

See also Lazorick v. Brown, 195 N.J. Super. 444, 449-51 (App. Div. 1984) (illustrating the close relationship between diagnosis, treatment, and determination of cause, noting a possible change in position by treating doctors regarding causation as treatment progressed compared to the initial diagnosis, based on "the course of the disease and subsequent medical findings").

In Stigliano, the Court distinguished cases precluding medical malpractice defendants from using treating doctors to provide expert testimony relating to deviation from the standard of care. See Stigliano, supra, 140 N.J. at 314-15 (distinguishing Serrano v. Levitsky, 215 N.J. Super. 454 (Law Div. 1986); Piller v. Kovarsky, 194 N.J. Super. 392 (Law Div. 1984)). The distinguishing factor was that Mr. and Mrs. Stigliano brought their daughter to several treating physicians for diagnosis and potential treatment. Id. at 315. This inherently included a request to make a determination of cause. On the contrary, in Piller and Serrano, the treating doctors were being asked about a subject not inextricably intertwined with their examination, diagnosis, treatment plan and cause determination, but about the alleged malpractice of other doctors. Ibid. In the former circumstance, the treating doctor, selected by the patient, possessed knowledge of the "fact" in issue, i.e. causation, which was gleaned from information transmitted by the patient and for which the privilege protecting confidentiality had been waived. In the latter circumstance, pure expert opinion, based on information beyond that provided by the patient in the course of diagnosis and treatment, was requested.

Like all privileges, the physician-patient privilege inhibits the search for the truth. Id. at 310 (citing Graham v. Gielchinsky, 126 N.J. 361, 373 (1991)). 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." Ibid. (quoting State v. Dyal, 97 N.J. 229, 237 (1984)). Accordingly, courts strictly construe privileges. Id. at 311. These fundamental principles supported the Court's conclusion in Stigliano that, although a mixture of fact and opinion, adverse causation testimony by a treating physician could be compelled once the privilege was waived. That testimony was deemed factual evidence, within the treating physician's personal knowledge, obtained by the physician at the patient's request. It should therefore not be withheld from the trier of fact. To do otherwise would have "'the awkward consequence of effectively frustrating discovery on a central issue of the case.'" Ibid. (quoting McCormick, Handbook of the Law of Evidence