Whether treating

physicians must

be paid for their

testimony dependson whether they are

expert witnesses, ormerely fact witnesses.

As a practical matter,

however, the issue isnot always clear-cut.

MUST TREATING PHYSICIANS BE PAID FORTHEIR TESTIMONY?

By Michael L. Forte and Sara M. Klco

In personal injury cases, theplaintiff's treating physicians generallycharge a fee for their testimony.'Although Florida Rule of CivilProcedure 1.390 entitles "expert"witnesses to a reasonable fee, anopen question remains as to whethertreating physicians are really expertsfor purposes of this rule.' If they aresimply fact witnesses explaining theirmedical observations, then a fee for theirtestimony may not be required.

The only Florida appellate court toaddress this issue essentially ruled a feeis unnecessary, but the opinion offerslimited reasoning. In ComprehensiveHealth Center, Inc. v. United AutomobileInsurance Company,3 a healthcarecenter sued its patient's insurer incounty court for PIP benefits. Whenthe insurer sought to depose two ofthe center's doctors, the center filed amotion for a protective order seekingprepayment of the doctors' depositionfees. At the hearing on the motion, theinsurer argued the doctors were notentitled to fees because they were merefact witnesses who would explain theirtreatment of the center's patient. Thecounty court disagreed, and ordered theinsurer to pre-pay $350 to each doctor.

The appellate division of the circuitcourt reversed. It reasoned the treatingphysicians were not experts "becausethey do not obtain their information forthe purpose of litigation but rather in thecourse of treating their patients." Thehealthcare center then sought certiorariin the Third District Court of Appeal,which denied the petition. The ThirdDistrict stated, without discussing Rule1.390 or offering further explanation,"The circuit court correctly decided to

apply Frantz."'In Frantz v. Golebiewski,6 a plaintiff

sued a doctor for malpractice. Thedefendant's attorney then obtained asworn statement from the plaintiff'ssubsequent doctor without first giving theplaintiff notice. When the plaintiff learnedof the statement, she filed a motion tocompel its production. The trial judgegranted the motion and ordered thedefendant to produce the statement. Thedefendant refused. The trial court thenfined the defendant, prohibited the use ofthe statement by the defendant for anypurpose, and ordered that the plaintiffbe given notice before any such furtherstatements were taken.

The Third District granted thedefendant's petition for certiorari. Itrejected the plaintiffs argument that atreating physician is governed by FloridaRule of Civil Procedure 1.280(b)(5),which controls discovery of opinionsfrom testifying experts. The court notedthe rule is limited to expert opinions"acquired and developed in anticipationof litigation or for trial, as in the caseof an expert retained by counsel."' Itreasoned the plaintiffs subsequentdoctor did "not acquire his expertknowledge [of plaintiff] for the purposeof litigation but rather simply in thecourse of attempting to make his patientwell."8As such, he essentially was afact witness—albeit with specializedtraining—who had observed the plaintiffsmedical condition. Therefore, thedefendant's ability to obtain informationfrom a treating physician was not limitedto the methods allowed by Rule 1.280(b)(5) and the doctor's statement enjoyedthe same work product protection as anyother nonparty witness statement.9

OUTE AUTHORS-

MICHAEL L. FORTE is a partner at the Tampa office of Rumberger,Kirk & Caldwell, P.A. He practices in the areas of retail and hospitality,law enforcement defense, products liability and construction. Hegraduated from Stetson University College of Law in 2002.

SARA M. KLCO is an associate in the Miami office of Broad andCassel and is a member of the firm's commercial litigation practice

group. She obtained her J.D. and M.B.A. from Stetson University in 2008.

TRIAL ADVOCATE QUARTERLY - FALL 2013

Courts citing the Frantzdecision stop short of ruling treatingphysicians always are fact witnesses.In Clair v. Perry,1° the court in afootnote acknowledged Frantz butstated "the rule is not absolute, anda treating physician may be deemedan expert in certain circumstances.""Similarly, in Fittipaldi USA, Inc. v.Castroneves,12 the court cited Frantzand its progeny, but stated "theholdings in those cases address thecategorization of treating physiciansas ordinary witnesses but do notaddress the limits of such testimony.It is entirely possible that even atreating physician's testimony couldcross the line into expert testimony. 13

In addition, neitherComprehensive Health nor Frantzaddress the potential effect, if any,of Florida Rule of Civil Procedure1.390. That rule provides: "An expertor skilled witness whose depositionis taken shall be allowed a witnessfee in such reasonable amount asthe court may determine." It defines"expert witness" as

a person duly andregularly engagedin the practice ofa profession whoholds a professionaldegree from auniversity or collegeand has had specialprofessional trainingand experience, orone possessed ofspecial knowledgeor skill about thesubject upon whichcalled to testify."

Absent from this rule is anyrequirement that the witness'sopinions were "acquired ordeveloped in anticipation of litigationor for trial." Practitioners are leftwithout sufficient guidance regardinghow this rule reconciles withComprehensive Health.

Still, a defendant should be ableto assemble a technical argumentagainst being required to pay atreating physician. As an initialmatter, the Third District's decisionin Comprehensive Health—as theonly appellate court decision on thisissue—is binding upon all circuitcourts in Florida.15

And aside from the Frantzsituation, at least two other usefulanalogies exist. First, when courtsat trial limit the number of expertsper discipline, treating physiciansgenerally do not count as experts.18For example, in Ryder TruckRental, Inc. v. Perez,17 a defendantin a car accident case retainedan orthopedist and neurologistto perform compulsory medicalexaminations of the plaintiff. Beforetrial, the court limited each party toone medical expert per specialty.The defendant objected because,as it turned out, the plaintiffs owntreating physicians (one of whomwas an orthopedist) had opined theplaintiff did not sustain a permanentinjury. As such, the defendant soughtto present testimony of its ownCME doctors as well as that of theplaintiffs treaters. The defendantargued the treating physicians werenot experts but rather fact witnesses.The trial court rejected this argumentand precluded the defendant fromcalling the treaters.

The appellate court reversedand remanded for a new trial. Itcited Frantz for the idea that treatersdevelop their opinions as a byproductof trying to make their patients well,as opposed to developing themfor litigation purposes. It ruled theplaintiffs treaters "should not havebeen classified as expert witnesses,but as ordinary fact witnesses notimpeded by the 'one expert perspecialty' rule imposed by the trialcourt:18

Second, treating physicians donot count as experts for the federalexpert report requirement.19 Rule26(a)(2) requires written reportsof experts who are "retained orspecially employed to provideexpert testimony in the case."The commentary to the 1993amendments to Rule 26 specifiesthat "A treating physician, forexample, can be deposed orcalled to testify at trial without anyrequirement for a written report."Similarly, the Middle District ofFlorida Discovery Handbook, SectionII(E) observes:

The expert reportis not required ofa "hybrid" witness,such as a treating

physician, whowas not specificallyretained for thelitigation and willprovide both factand expert testimony(though nonretainedexperts must stillbe disclosed andare subject toregular documentand depositiondiscovery).The parties areencouraged tocommunicateopenly about allopinions that atreating physician isexpected to renderin support of aparty's case.

Of course, practicalconsiderations abound. If a courtgrants a motion to compel thetestimony without a fee, the doctorlikely would be unhappy to say theleast, making the deposition or trialquestioning more difficult. In addition,the plaintiff may become inspiredto look at the fees charged by thedefendant's experts, and seek tolimit those fees.2° In that situation,the defendant often ends up payingthe difference between the defenseexpert's original fee and the fee setby the court, potentially resultingin an overall net increase of thedefendant's expert costs. Perhaps inthe future a defendant will find itselfin a situation conducive to fightingthis fight, resulting in additionalfavorable case law from appellatecourts.

See, e.g., Frantz v. Golebiewski, 407So. 2d 283, 285 n.1 (Fla. 3d DCA1981) ("As a practical matter, medicalprofessionals almost invariably insist—asevery witness has the right to do—upona formal deposition and the payment ofan appropriate witness fee before givinga statement to the party adverse to hispatient.").Florida circuit court opinions on this issueare all over the board, and even somejudges within the same circuit disagree.Compare. United Auto. Ins. Co. v. FlaglerMed. Ctr., Inc., Nos. 08-535, 07-3529(Fla. 11th Cir. Ct. July 22, 2010) (treatingphysician entitled to fee) with Rodriguez v.Allstate Indemnity Co., No. (Fla. 11thCir. Ct. April 14, 2003) (treating physiciannot entitled to fee).56 So. 3d 41 (Fla. 3d DCA 2011).

TRIAL ADVOCATE QUARTERLY - FALL 2013

4 Comprehensive Health Ctr., Inc., 56 So. 3dat 43.Id. at 44.

6 407 So, 2d 283 (Fla. 3d DCA 1981).7 Frantz, 407 So. 2d at 285. Note that at the

time of the decision, the rule in questionwas numbered 1.280(b)(3).

8 Id.9 Accord Avis Rent-A-Car Sys., Inc. v. Smith,

548 So. 2d 1193, 1194 (Fla. 4th DCA1989); Coralluzzo v. Fass, 435 So. 2d 262,263 (Fla. 3d DCA 1983).

10

11

12

13

14

15

66 So. 3d 1078 (Fla. 4th DCA 2011).Id. at 1080 n.1.905 So. 2d 182 (Fla. 3d DCA 2005).Id. at 18, n. 1.Fla. R. Civ. P. 1.390 (emphasis added).Pardo v. State, 596 So. 2d 665, 667 (Fla.1992).

16 E.g., Carpenter v. Alonso, 587 So.2d 572, 573 (Fla. 3d DCA 1991) (In amedical malpractice case, "permitting thedefendant doctor to testify as to his care ofthe plaintiff would not be a violation of 'the

17

18

19

20

trial court's] expert witness limitation.").715 So. 2d 289 (Fla. 3d DCA 1998).Ryder Truck Rental, Inc., 715 So. 2d at291.Interpretation of federal rules of procedureare persuasive on Florida state courts. Eg.Carriage Hills Condominium, Inc. v. JBHRoofing & Constructors, Inc., 109 So. 3d329, 334, n. 1 (Fla. 4th DCA 2013).Florida Rule of Civil Procedure 1.390empowers courts to set a reasonableexpert fee.

F LArricta Defense Lawyers Association

2014WINTER SEMINAR

Crested Butte Mountain ResortCrested Butte, Colorado

January 15.20, 2014Arrive on January 15, 2014 • Depart on January 20, 2014

FDLA IS GOING TO CRESTED BUTTE FOR THE2014 WINTER SEMINAR!!

Those of you who have been with us for previous WinterMeetings know how fantastic they are. Please join us for the2014 event, January 15-20, 2014. Join us for top rateCLE programs, fellowship, and skiing.

Crested Butte has always been known as the perfect moun-tain to improve your skiing because of the diverse terrain andeasy progression from beginner, intermediate and advancedsections of the mountain. This unique character of the moun-tain, combined with uncrowded slopes, fantastic groomingand snow conditions, gives one a sense of freedom andconfidence. The mountain has some of the easiest access towhat is considered to be the country's best steeps where youcan find classic bowl skiing or unexplored lines on every run.

Winter activities abound: horseback riding in the snow —cross-country skiing — dog sled tours — sleigh ride dinners

zipline tours — snowshoeing — snowmobile adventures —tubing — an Adventure Park — Snowcat driving.

Considering the distinctive qualities of Crested Butte, it iseasy to understand how it has been called "Colorado's lastgreat ski town."

For additional information on Crested Butte, visit http://www.skicb.com/cbmr/index.aspx.

A limited number of rooms remain in the block.Rooms are in The Elevation Hotel & Spa and The Lodge atMountaineer Square. The Elevation is a newly remodeledski-in/ski-out luxurious full-service hotel & spa. The Lodge atMountaineer Square is located in the heart of the base areajust steps from the ski lifts and features luxury condomini-ums. The Lodge is a short walk from The Elevation.

Reserve your room now by contactingNell hicinnish at 800-365-1224 or

nmcinnish@aliseasonstravel.com

TRIAL ADVOCATE QUARTERLY - FALL 2013