![]() ![]() In addition, a treater testifying at trial will not be vulnerable to the classic “hired gun” line of attack because, in most cases, the treater was not selected by the plaintiff’s counsel and has acted independently of the litigation. This has led to a treatment plan that the treater personally developed in compliance with the medical standard of care. In other words, the treater has made a real life diagnosis based on multiple contacts with the plaintiff that act as the foundation for her opinions and are within her percipient knowledge as a treating physician. As a result, the treater is duty bound by the standard of care to exercise sound medical judgment in the diagnosis and treatment of the plaintiff. Principle among these is the fact that the treating physician has a physician-patient relationship with your client. There are several additional advantages to using a treating physician as a trial expert. Thereafter, other experts can reference them without running afoul of Sanchez. Such objections will be less likely to apply to the testimony of a well prepared and cooperative treater who should be able to lay a proper foundation to permit the introduction of his own medical records into evidence. After Sanchez, an expert can no longer “relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” ( Id.at 686). This decision brought an end to the traditional practice of getting hearsay evidence before a jury by having a retained expert rely upon it as the basis for an opinion. Sanchez established that when “any expert relates to the jury case-specific out-of-court statements, and treats the content of those statements as true … the statements are hearsay.” ( Id. ![]() Your answer may be a cooperative and properly prepared treating physician. If the objection is sustained, you may fail in your burden of proof at trial. Sanchez (2016) 63 Cal.4th 665, many attorneys have faced repeated objections related to their retained expert’s testimony. The outcome of the trial may very well hinge upon which side can present the most credible and persuasive evidence on these medical issues. Each of these topics will require opinion testimony by a competent expert. In many personal injury trials, jurors will be required to resolve conflicting expert testimony on issues of injury causation and the necessity and cost of past and future care. Phalle & Silver, PCįeatured in: Plaintiff Magazine (Click for Print-friendly PDF) ![]()
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