In his Evidence column, Michael J. Hutter, a professor at Albany Law School and special counsel to Powers & Santola, writes that the "missing witness" rule is routinely invoked where the absent witness is a treating or examining physician, and rarely leads to a probing analysis as to whether it is appropriate to invoke the rule or how the elements for the invocation of the rule are to be applied and considered when a physician is involved. A thoughtful and thorough opinion from the Second Department has provided much needed guidance.
Application of Missing Witness Rule to Treating Physicians
New York Law Journal
October 3, 2013