medicare-medicaid-fraud-caseCan an attorney ask a treating physician to testify? Do you have pay the treating physician as an expert witness to testify?  This depends on whether or not the doctor is considered as a fact witness or expert witness.

Judge Jon W. Thompson of the Arizona Court of Appeals recently wrote the opinion in a special action that stemmed from a personal injury lawsuit where a treating physician refused to testify unless he was compensated as an expert witness. The issue was whether a treating physician’s testimony concerning the patient’s diagnosis, treatment, and prognosis is an expert testimony within the meaning of the rules of evidence only, because it draws upon the doctor’s skill, training, and experience as a professional.

Plaintiff was involved in a car accident with defendant in Scottsdale, Arizona. Plaintiff sued defendant for damages and claimed that she needed chiropractic treatment. Plaintiff listed the doctor’s office named Injury Chiropractic as a witness to “testify consistently with their medical records regarding the injuries sustained by plaintiff and related medical treatment.” Plaintiff also listed Injury Chiropractic as an expert witness, stating the “doctors will testify as plaintiff’s treating physicians, to the injuries and medical treatment and anticipated medical treatment.” The treatment notes of Dr. DH of Injury Chiropractic were attached to the statement.

Defendant subpoenaed Dr. DH to take his deposition.  The doctor moved to quash the subpoena, or in the alternative, enter a protective order limiting the scope of inquiry and requiring defendant to pay expert witness fees in advance. Dr. DH sought to limit the issues to:

  1. Care and treatment of plaintiff;
  2. Documentation related to the care provided;
  3. Reasonableness of the medical services provided; and
  4. Philosophy and modalities of the type of chiropractic medicine engaged in by Dr. DH regarding plaintiff’s medical condition.

The trial Judge Thompson granted the doctor’s motion and held that Dr. DH was an expert witness under the Arizona Rules of Civil Procedure. After the deposition, Dr. DH was to be paid $300 per hour as an expert witness.

On appeal, defendant claimed that he shouldn’t be required to pay expert witness fees for Dr. DH because of his specialized chiropractic knowledge because he would be testifying only about his examination, treatment, bills, and chiropractic opinions formed during plaintiff’s treatment. The doctor wasn’t retained for the litigation.  His testimony was based on his care during plaintiff’s treatment, not opinions formed after plaintiff’s discharge from care in anticipation of the lawsuit.

Judge Thompson stated, “[a] fact witness typically testifies about information he or she has acquired independent of the litigation, the parties, or the attorneys.” A medical fact witness, he reasoned, wouldn’t be required to do more to answer questions other than to review his own records. Fact-based testimony is derived from the five senses, Judge Thompson wrote, i.e., what the treating doctor saw, heard, or felt.  The testimony given is typically in response to the “who, what, when, where, and why” questions. Questions about experience, training, and the professional’s background and specialization are “relevant to jurors in assessing the credibility of fact witnesses and in determining the weight to give their testimony.” Allowing doctors to “educate” the jury by explaining terms and procedures in an understandable manner doesn’t constitute expert testimony.

In contrast, Judge Thompson said testimony would constitute expert testimony requiring appropriate compensation if the questions required a doctor examine the medical records, comment on the testimony of another physician, or opine on the standard of care or treatment given by another health care professional. Judge Thompson explained that hypothetical questions or questions regarding causation signaled that the doctor is being asked to give expert testimony. In support, Judge Thompson cited Duquette v. Superior Court (Az. App. 1989), where the Arizona Court of Appeals stated: “A plaintiff’s treating physician is not an ‘expert witness’ within the meaning of Rule 26(b)(4) because the facts known and opinions held by a treating physician are not ‘acquired or developed in anticipation of litigation or for trial.’ ”

Judge Thompson dismissed Dr. DH’s argument that Arizona Rule of Civil Procedure 26(b)(4) identifies and distinguishes between two types of experts: (i) one whose opinions may be presented at trial; and (ii) one who has been retained or specially employed and who is not expected to testify at trial; and further that Rule 26(b)(4) requires reasonable payment to an expert responding to the discovery request, regardless of whether it is a treating physician who is testifying under Rule 702 and Rule 703 or an expert who is not expected to testify at trial.  The Judge Thompson stated that Rules of Evidence 702 and 703, which apply in both civil and criminal cases, deal only with witnesses testifying as experts and not as fact witnesses. The rules don’t declare that testifying doctors are necessarily experts.  Instead, they provide rules applicable to doctors who are engaged as experts.

Dr. DH was not listed as an expert witness in plaintiff’s disclosure statement; however, Injury Chiropractic was identified generically both as fact witnesses and as expert witnesses.  The Court of Appeals held that the test is not the label given by the disclosing attorney, but rather the substance of the disclosure under Rules of Civil Procedure 26.1. In this case, the substance of the disclosure was the same. A review of Dr. DH’s testimony showed that it was almost entirely factual—based on information he personally observed independent of the litigation.

Having found that neither of Rule 26(b)(4)(B) usages of “expert” applied, Judge Thompson concluded that the requirement of the rule to pay the “expert” a reasonable fee also didn’t apply to Dr. DH. It also wasn’t appropriate to carve out an exception for doctors to the general rule that fact witnesses are not paid for giving testimony. The Court of Appeals said that courts should not create a special class of fact witnesses who are entitled to expert witness fees while excluding others.

Therefore, when a treating doctor is testifying only to the injury, medical treatment, and other first-hand knowledge not obtained for purposes of litigation, the treating doctor is a fact witness and shouldn’t be compensated as an expert. However, where expert testimony is solicited, whether the source of the expert’s underlying information is from personal observation or the observations of others, but the testimony is developed for purposes of litigation, the doctors must be compensated accordingly.

The Court of Appeals granted defendant relief and vacated the order compelling expert witness payment to Dr. DH for his testimony relating to the care and treatment of plaintiff.

By:  Kurt Mattson, J.D., LLM