Non-Party Physicians in Nursing Home Cases

By: Barbara D. Goldberg and Joseph L. DeMarzo
Tuesday, September 3, 2013

Non-party treating physicians, particularly those who have treated a patient for many years, may potentially play a crucial role in the defense of actions alleging nursing home negligence and deprivation of rights under the state’s Public Health Law.1

Presumably, when treatment was sought, the patient, family member or caregiver provided a report — as complete and accurate as possible — of the patient’s symptoms, history and treatment outcomes. The non-party physician’s records, therefore, will likely contain useful and relevant information about the patient’s history and preexisting conditions. In addition, ex parte Arons interviews may reveal information not recorded in the chart.

Claims against nursing homes typically involve falls, pressure ulcers, and issues involving nutrition and hydration. Information obtained from non-party physicians may support a causation defense to a negligence claim or the statutory defense that a facility “exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient”2 in cases brought under the Public Health Law. Information obtained from non-party physicians regarding a preexisting condition may help establish, for example, that because a resident suffered from conditions such as cognitive impairment, altered nutritional status, failure to thrive or end-stage renal disease, the development of pressure ulcers or other injuries claimed in an action was unavoidable.

In one case, a 94-year-old resident of a nursing home allegedly sustained a right distal femur fracture when a nurse’s aide attempted a one-person transfer with a Hoyer lift, in violation of the resident’s care plan.3 The defense was that the fracture was spontaneous and attributable to preexisting osteoporosis. The resident had complained of “terrible pain” in her right leg earlier that day and, pursuant to standing orders from her treating physician, had frequently been medicated with Darvocet for right leg pain on an “as-needed” basis.

The jury found that the nursing home had violated a regulation requiring it to “ensure” that “[e]ach resident receives adequate supervision and assistance devices to prevent accidents,”4 but that there were no “injuries suffered” by the resident as a result, thereby implicitly accepting the defense theory of a spontaneous fracture. After being set aside by the trial court, the verdict was reinstated on appeal.

In a case such as this, the treating physician is clearly in a position to provide relevant information regarding the preexisting condition. If defense counsel decides to call the physician as a witness at trial, the jury may find the testimony more persuasive than that of an expert, since the witness’ sole focus was rendering care to the patient.

In another case resulting in a defense verdict,5 the resident’s preexisting conditions included dementia and tertiary syphilis, which contributed to decreased nutritional intake and failure to thrive. Her treating physician testified that because of these conditions and the fact that she was paralyzed and immobile, she was prone to skin ulceration. Based in part on the treating physician’s testimony, as well as expert testimony regarding the progressive effects of tertiary syphilis and dementia, the trial court upheld the jury’s determination that the development of a pressure ulcer on the patient’s buttock was unavoidable.

In some cases, treating physicians may be the best and possibly the only source of information regarding a relevant preexisting diagnosis, since the patient may not have discussed the particulars of a diagnosis made years previously with family members. Similarly, a treating physician may possess relevant information regarding prior alcohol or drug abuse leading to a chronic condition, such as advanced cirrhosis of the liver or dementia and cognitive impairment.

In sum, treating physicians may be called upon to give testimony both at a pretrial deposition or at trial. In an appropriate case, as the examples demonstrate, information from a treating physician may be the key to a successful defense.

Goldberg DeMarzoJoseph L. DeMarzo is a Senior Partner at Martin Clearwater & Bell LLP. Barbara D. Goldberg is a Partner and head of the firm’s Appellate Department. For more information, please visit