10 Fla. L. Weekly Supp. 212a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is entitled to expert fee for deposition testimony concerning the subject matter of his expertise, including treatment rendered to insured
ABBIE RUBENSTEIN, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. JAMIE RUBENSTEIN, Plaintiff, vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 02-2895 COCE 56. January 31, 2003. Linda R. Pratt, Judge. Counsel: Harley Kane, Kane & Kane, Boca Raton, for Plaintiff. Laverne Largie, for Defendant.
ORDER
THIS CAUSE is before the Court on Dr. Alan Dellabella’s motion for protective order and to compel payment of an expert witness fee. Dr. Dellabella, a nonparty to the action, is plaintiff’s treating physician. This Court has previously ruled in another case that under these same circumstances, Dr. Dellabella is not entitled to an expert fee, citing to Kurdian v. State Farm Mutual Automobile Insurance Company, 7 Florida Law Weekly Supplement 694 (a). See: Rios v. Allstate, 8 Florida Law Weekly Supplement 660 (b) (June 19, 2001).
The Court now recedes from its prior opinion, insofar as it relied on matters of public policy to deny a treating physician an expert fee when it is his bill that is in issue. Florida Rule of Civil Procedure 1.390 defines an “expert witness” as a person who has a professional training and a degree, or one possessed of special knowledge or skill about the subject upon which called to testify. Appellate Courts have ruled that treating physicians are expert witnesses, but are a class of expects not subject to the special discovery limitations of Rule 1.280, because their opinions were not obtained in anticipation of litigation or for trial. Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3 DCA 1981). While the Third DCA said in Frantz that treating physicians should be treated as ordinary witnesses for discovery purposes, it was not considering Rule 1.390 and whether the treating physician is entitled to a fee for testifying or sitting for a deposition.
Upon further consideration of the issue, this court feels that the logical interpretation of Rule 1.390 is that one is entitled to payment of an expert fee if one’s testimony concerns the subject of one’s expertise, no matter how or why the facts were acquired. Public policy concerns about payment of treating physicians cut both ways. On one hand, as pointed out in Kurdian, treating physicians who can get a fee for testifying may be discouraged from settling claims for their bills. On the other hand, not paying them to testify encourages abuse by the opposing party in setting and conducting dispositions to harass the physician into dropping a claim because it becomes too expensive to litigate.
Thus, the court finds that treating physicians should get an expert fee for testifying as long as the testimony concerns the subject matter of his expertise. In this case, defendant seeks to depose Dr. Dellabella concerning treatment he rendered to the insured. Even if defendant does not ask for his opinion specifically, defendant is still questioning him concerning the subject of his expertise. Therefore, he is entitled to a reasonable fee, which would be a cost taxed to the losing party.
Accordingly, Dr. Dellabella’s motion for protective order is granted. If the parties cannot agree on a fee, the Court will set one upon further evidentiary hearing.
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