10 Fla. L. Weekly Supp. 654b

Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is not entitled to expert witness fee for deposition testimony

A-1 Mobile MRI, Inc., Plaintiff, v. Allstate Insurance Co., Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-5457 COSO 60. July 3, 2003. Sharon L. Zeller, Judge.

AMENDED ORDER

THIS CAUSE having come before the on March 20, 2003 on Defendant’s Motion to Compel Deposition Without Expert Fee, and the court having considered the record, heard argument of counsel, and being fully advised in the Premises, finds as follows:

1. In this case, the Plaintiff has sued the Defendant alleging that the Defendant has failed to pay certain personal injury protection benefits in accordance with the applicable insurance policy and Florida statutes.

2. The treating physician, Dr. Thomas Woolhiser, ordered and rendered treatment to the claimant, Chris Tharp.

3. As a treating physician, Dr. Woolhiser, is “a qualified medical expert with a first hand knowledge of the material facts, which permits him to state his opinions and inferences concerning the existence and cause of the diagnosed medical condition suffered by the plaintiff.” Brown v. Best Foods, 169 F.R.D. 385, (ND Ala. 1996). A doctor is not an expert if his or her testimony is based on . . . observations during the course of treating; if testimony was not acquired or developed in anticipation of litigation or for trial and if the testimony is based on personal knowledge. Brown v. Best Foods, supra at 387.

4. “The former Fifth Circuit recognized a well settled proposition that a physician who has examined and injured party may describe what he has seen and give his expert inference therefrom. Additionally, a treating physician may testify from personal observations of his patient that (she) is suffering pain.” McGuire v. Davis, 437 F.2d 570, 572 (5th Circuit, 1971).

5. In Demar v. United States of America, 199 F.R.D. 617, (D. Ill. 2001), the court stated that the treating physician is a fact witness and not an expert witness. The issue therein was whether he should be compensated as if he were an expert witness pursuant to FRCP 26(b)(4)(c).

6. In the aforementioned case, the issue is whether the doctor should be compensated pursuant to Federal Rules of Civil Procedure as an expert witness and therefore entitled to a reasonable fee or whether the doctor should be treated as fact witness and entitled only to the statutory attendance fee. The court therein stated that “it is undisputed that Dr. Beagler, as a treating physician, is a fact witness and not an expert witness in the case sub judice.” Demar v. USA, supra at 617.

7. In Baker v. Taco Bell, 163 F.R.D. 348, (D. Colo. 1995), the Court also examined the issue of treating physicians’ opinions under the Federal Rules. The “Interprofessional Code” endorsed by the local Bar Association and Medical Societies, states as follows:

“The premise that an expert witness fee is due only if an opinion is elicited from the witness is not a valid assumption. A physician who comes into possession of facts or information solely because of his or her position as a physician is entitled to receive compensation as an expert when subpoenaed to testify to those facts in court. The physician’s position and status at the time he or she comes into possession of relevant information determines whether a physician should be entitled to an expert witness fee.”(Emphasis added)

8. The court compared the medical field with the legal field and further stated:

An attorney does not become a expert witness just because he uses his past legal knowledge or researches the law to analyze his client’s case in representing the client. The court can assume the plaintiff’s treating physicians use their medical knowledge and, if necessary, medical literature to diagnose the cause of the plaintiff’s injuries, the nature of the injuries, and to prescribe a medical program. Baker supra at 351.

The court therein ruled that the treating physician is not entitled, as matter of law, to a fee other than the statutory fee.

9. A secondary issue that has been addressed by the Federal District Courts is whether or not a treating physician is entitled to compensation beyond the statutory rate. The District Courts that have addressed this issue are, essentially, split. Some courts compensate treating physicians at a reasonable rate for giving depositions in cases where they are not parties. The Eleventh Circuit has determined that pursuant to Fed.R.Civ.P. 55(d)(1), a prevailing party can recover only the statutory limits as fees for its own expert witnesses regardless of the amount actually charged by the expert. Brown v. Best Foods, supra at 388(n3). See also Dictiomatic, Inc. v. USF&G, 14 Fla. Law Weekly Fed. D159, (SD Law May 1, 2000).

10. After all is said and done, most treating physicians are not retained by parties as expert witnesses. The fact that treating physicians are technically experts, or could conceivably be retained for litigation does not change this reality. See also the case of Frantz v. Golebiewski, 407 So.2d 283, 285 (Fla. 3rd DCA 1981), Ryder Truck Rental v. Perez, 715 So.2d 289 (Fla. 3rd DCA 1998), Kurdian v. State Farm Mutual Automobile Insurance Company, 7 Fla. L. Weekly Supp. 694a (Fla. 17th Cir. Ct. 2000), Gonzalez v. State Farm Mutual Automobile Insurance Company, 8 Fla. L. Weekly Supp. 114a (Fla. 11th Cir. Ct. 2000), Arias v. Metropolitan Property and Casualty Insurance Company, 9 Fla. L. Weekly Supp. 488b (Fla. 9th Cir. Ct. 2002), Rios v. Allstate Insurance Company, 8 Fla. L. Weekly Supp. 635b (Fla. 17th Cir. Ct. 2001), and Martin v. Landy, 8 Fla. L. Weekly Supp 635b (Fla. 17th Cir. Ct. 2001) which apply and control this issue.

It is therefore,

ORDERED and ADJUDGED that Defendant’s Motion to Compel of Dr. Thomas Woolhiser Without an Expert Witness Fee is hereby granted. Dr. Thomas Woolhiser shall submit a deposition upon reasonable notice.

* * *