Have you had the experience of your client’s physician refusing to meet with you or discuss your client’s medical treatment? While it doesn’t happen frequently, in my experience, it has happened. Your choice is to schedule a deposition of your own client’s treating doctor if you want information. It also presents an issue of what to do at trial when you have to subpoena the reluctant doctor to testify. It will be obvious this is not a friendly witness, What can you do?

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In the absence of other solutions, my approach is to expose the situation if the testimony is needed. At least the jury will understand the bias of the witness. Here is one way to approach the issue. It’s is far from perfect, but you may find some ideas that are useful. I base it on the American Medical Association Code of Ethics https://www.ama-assn.org/delivering-care/ethics/code-medical-ethics-overview. This is the part of the deposition relating to the refusal. The balance would address the client’s treatment facts. I’ve set out the AMA Ethics Code for reference, not necessarily part of the questioning.

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Code of Medical Ethics Opinion 1.1.1

The practice of medicine, and its embodiment in the clinical encounter between a patient and a physician, is fundamentally a moral activity that arises from the imperative to care for patients and to alleviate suffering. The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare.

The health and well-being of patients depends on a collaborative effort between patient and physician in a mutually respectful alliance.

Physicians can best contribute to a mutually respectful alliance with patients by serving as their patients’ advocates and by respecting patients’ rights. These include the right:

(f) To obtain copies or summaries of their medical records….

(h) To be advised of any conflicts of interest their physician may have in respect to their care.

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1. Code of Medical Ethics Opinion 1.1.1

   The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare ↑

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2. Code of Medical Ethics Opinion 9.7.1

   Medical evidence is critical in a variety of legal and administrative proceedings. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice. ↑

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3. Code of Medical Ethics Opinion 9.7.1

   Whenever physicians serve as witnesses they must:

   (a) Accurately represent their qualifications.

   (b) Testify honestly. ↑

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4. Code of Medical Ethics Opinion 9.7.1

   Whenever physicians serve as witnesses they must:

   (a) Accurately represent their qualifications.

   (b) Testify honestly ↑

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5. Code of Medical Ethics Opinion 9.7.1

   Physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient’s medical interests paramount… ↑

6. Code of Medical Ethics Opinion 9.7.1

   Whenever physicians serve as witnesses they must (e) Delivering honest testimony. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case. ↑

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