The trial court properly excluded the testimony of a treating physician on the standard of care when the witness had no opinion on this issue at the time of his deposition and plaintiff's subsequent expert witness disclosure did not notify the defendant that the witness formed an opinion on the subject after the deposition, said the Second Appellate District in Dozier v. Shapiro (Sept. 27, 2011, B224316), __ Cal.App.4th __ [2011 DJDAR 15497].
Dr. Shapiro performed knee surgery on plaintiff, affixing a plate and screws. When the plaintiff experienced continuing pain in his knee after the surgery, it was determined that there were mechanical complications associated with an implanted screw, and he eventually received a total knee replacement.
The physician who performed the knee replacement (Dr. Zeegan) testified at his deposition that the screw had penetrated into the joint. When asked if he had an opinion as to whether Dr. Shapiro placed the screw improperly, plaintiff's counsel objected on the ground that the question called for an expert opinion and the questions should be limited to the witness' care and treatment of the plaintiff. After the objection Dr. Zeegan testified that he didn't have an opinion on the subject because he had not reviewed the xrays taken immediately after the initial surgery.
Defendant served a demand to exchange lists of expert witnesses and Dr. Zeegan was disclosed as one of nine non-retained experts who would testify as to their treatment of the plaintiff, the "standard of care, causation, damages," and related subjects. As it turns out, after the deposition the plaintiff provided the earlier xrays and other documents to Dr. Zeegan, and he now had an opinion on whether Dr. Shapiro's treatment fell below the standard of care. At trial, defendant moved to limit the trial testimony of plaintiff's experts to the opinions rendered at their depositions, and the motion was granted. The trial court concluded that Dr. Zeegan did not have an opinion at his deposition on whether there was a breach of the standard of care and, since he was plaintiff's only potential witness on the subject, the case was dismissed.
The court of appeal affirmed the judgment. Although a treating physician may be qualified to testify on the subject
of a physician's adherence to the applicable standard of care, when Dr. Zeegan received additional materials from counsel to permit him to form an opinion on a subject that had no relationship to his treatment of plaintiff, he was effectively transformed from a treating physician into a retained expert. Since he had no opinion at his deposition on whether Dr. Shapiro complied with the standard of care, counsel had the obligation to disclose the fact that Dr. Zeegan had conducted a further investigation and now had an opinion on the subject. The disclosure here did not substantially comply with the statutory requirements for expert witness designation.