Navigating Physician Refusal to Testify in Arizona: AMA Ethics and Your Patient Rights

In Phoenix, Arizona, where Gage Mathers Law Group is located, the three largest health care provider systems are Mayo Clinic, Dignity Health, and Banner Health. In the last few years, we have been advised by these institutions that they will not allow their providers to talk to lawyers about the facts of their patient’s injuries and treatment. They will hire a lawyer to challenge and limit subpoenas, as well as instruct the providers not to answer certain questions under oath.

There Is No Good Substitute For A Treating Physician’s Testimony

The treating physician’s refusal to testify has a tremendously damaging effect on the patient’s ability to obtain justice. It is very difficult to prove medical injuries and damages without physician testimony. The lawyer could subpoena the doctor to testify, but subpoenas can be challenged or limited by the judge in ways that cause unnecessary delays or limited evidence presentation. When the treating doctor refuses to testify, the best option is for the lawyer to hire a non-treating doctor to review the medical records and provide the necessary medical testimony.

Insurance companies love to tell juries that these cases are all a conspiracy between the injured person, their lawyer, and the doctors who treated the injured person. Hiring a non-treating doctor to testify is used by the insurance company defense attorneys to make it look like the injured person and their lawyer went shopping for a doctor who would say anything they’re paid to say, even though that’s not true. Over the last half-century, tort reform advocates have ingrained this conspiracy theory in Americans’ minds so it is an easy sell.

The insurance defense lawyer will make this the centerpiece of the defense at trial. They lie and mislead the jury to believe the plaintiff’s case is fictitious, the main support for their argument being the lack of treating physician testimony. The defense will argue that, if the plaintiff’s case legitimate and s/he was actually hurt, then the treating physicians who have dedicated their lives to helping patients certainly would have appeared in Court to testify. This is followed by the suggestion that the reason the treating doctor did not testify was because the treating doctor wouldn’t say the things the lawyer wanted the jury to hear and that’s why the plaintiff had to hire the non-treating doctor.

To jurors, who have never experienced the difficulty of getting a doctor to testify, that is an effective strategy for the insurance company. To the uninitiated, it makes sense. But it defies logic since the defense certainly would have the treating doctors testify if they were going to sink the plaintiff’s case; and the doctors would have been committing insurance fraud and medical hari-kari by creating records substantiating the plaintiff’s injuries and damages. Still, conspiracy theories stick and the jurors are never told what’s going on–that most doctors refuse to come to Court no matter how much they are paid.