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Court Clarifies Procedure for Preclusion of Physician Reports

On 4/23/20, the Appellate Division, Third Department decided Delucia v. Greenbuild, LLC. This decision clarifies the procedure for seeking preclusion of a treating doctor's medical reports and opinion when the doctor refuses to appear for testimony. It has generally been assumed that a carrier must try to enforce a subpoena in New York State Supreme Court against a doctor who refuses to testify before seeking preclusion of that doctor’s reports and opinion. 

In Delucia, the court clarified that enforcement of a subpoena is not required before a carrier seeks preclusion so as long as the Board has not previously directed the carrier to enforce the subpoena. In this case, the carrier sent five subpoenas to the claimant's treating physicians for medical testimony. Each time the physicians ignored the subpoenas. The carrier did not attempt to enforce the subpoenas in Supreme Court, and the Board never directed the carrier to enforce the subpoenas. The Board eventually precluded the reports and opinion of the two doctors who refused to testify. Claimant appealed to the Appellate Division, arguing that the carrier could not legally seek preclusion until after trying to enforce the subpoenas in Supreme Court. The Appellate Division rejected this argument, holding that a carrier is only required to seek enforcement of a subpoena before requesting preclusion of a treating doctor's reports and opinion if the Board has explicitly directed enforcement of the subpoena in a previous decision. Since the Board never directed enforcement of the subpoenas in this case, the court affirmed the Board's preclusion of the reports and opinions from the doctors who refused to testify.

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