In Haynes v. Modh Jewel Hossain and Baxter Cab Corp., the defendants moved post-note of issue, to stay the trial and to conduct a new orthopedic examination of the plaintiff with a new orthopedist.  The basis of the motion was that the previously designated independent medical examiner received a Statement of Charges from the New York State Board for Professional Medical Conduct.  Thereafter, the doctor entered into a Consent Agreement and Order whereby he was placed on probation for a period of three years; his license to practice medicine was limited to preclude him from engaging in any practice as an independent medical examiner; and he agreed to voluntarily stop practicing as an independent medical examiner.  The defendants argued that the terms of the consent order rendered the doctor unavailable as a trial witness, entitling them to a further examination of the plaintiff.

In denying the defendants’ application, the trial court concluded that an expert is not rendered unavailable as a matter of law simply by virtue of the fact that a disciplinary action has been commenced against the expert resulting in restriction of the expert’s medical license.  Moreover, it is important to note that the plaintiff presented the court with an opinion letter from the Deputy Counsel for the Medical Board that clarified the limitations of the consent order for the sanctioned doctor.  The opinion letter stated that if, in the future, the doctor testified about acts performed, observations or findings made, or opinions and/or diagnoses rendered, at a time that predates the effective date of the order, the Board would not consider that to be reportable as a possible violation.  In relying on this letter, the trial judge noted that the doctor was available to testify at the time of trial.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact Nicole Y. Brown at .