10 Fla. L. Weekly Supp. 933a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician who testifies regarding his knowledge of patient’s treatment, diagnosis or prognosis is fact witness not entitled to expert witness fee since opinion is based on information acquired from physician’s personal observations rather than information provided by a party in anticipation of litigation or in preparation for trial — Question certified
DR. ROBERT SIMON (Rosalie Madden), Plaintiff, vs. PROGRESSIVE EXPRESS INS. CO., Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 2003CC8913-RJ. Peter M. Evans, Judge. Counsel: Frank Noska, West Palm Beach. Seth Pachter, Vernis & Bowling of Palm Beach, P.A., North Palm Beach, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER
THIS MATTER having come before this court upon PLAINTIFF’S MOTION FOR PROTECTIVE ORDER. This motion arises from a Personal Injury Protection suit, involving the non-payment of medical bills submitted by Plaintiff to Defendant. The Defendant has issued notices for deposition the plaintiff, Dr. Robert Simon. The Plaintiff filed a Motion for Protective Order objecting to the deposition of the treating physician; and alternatively requesting that the Defendant be required to pay an expert witness fee to the treating physician. The court having reviewed the submitted memorandums of law submitted by counsel and otherwise being fully informed in the premises thereof, this Court makes the following findings:
Expert opinions are those acquired and developed in anticipation of litigation or for trial, as in the case of an expert retained by counsel. Frantz v. Golebiewski, 407 So. 2d 283, 285 (Fla. 3d DCA 1981). In contrast to an examining physician, a treating physician does not acquire his expert knowledge for the purpose of litigation but rather simply in the course of attempting to make his/her patient well. Id.; See also, Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289, 290 (Fla. 3d DCA 1998). The treating physician diagnoses the patient’s problem and administers treatment in response to it. Therefore, the treatment is rendered based on the patient’s needs, not the needs of the litigation process. Consequently, it seems clear that any treating physician, who has treated a patient-plaintiff is just an actor in the case and viewer of the patient’s condition and shall be treated as an ordinary witness not an expert witness. Id. 407 at 285.
A physician or other health care practitioner, who testifies regarding his/her knowledge of the patient’s treatment, diagnosis or prognosis, does not, for the purpose of this analysis, express an expert opinion. This applies whether the treating physician testifies to factual matters as to which any lay witness may testify or testifies as to the patient’s diagnosis, prognosis and causation of the injury. This is true even though the testimony is based on the knowledge reaped by the professional at the time of the patient’s treatment and on the professional’s experience in the particular field of expertise. Plunkett v. Spaulding, 60 Cal. Rptr. 2d 377, 384-86 (Cal. 3d Dist. Ct. App. 1997).
The rationale for regarding a treating physician differently from other experts lies in the assumption that the treating physician’s opinion is based upon information acquired from his/her personal observations of the patient. Since, the physician’s information is obtained from personal observation, this makes the physician a fact witness. A treating physician does not come into the relationship “in anticipation of litigation.” The expression of an opinion by a treating physician who is bring an action to collect his own fees, concerning prognosis, diagnosis, causation of the injuries, duration, or as to the reasonableness and necessity of the doctors’ bills is testimony acquired from personal observation rather than from information provided by a party in anticipation of litigation or in preparation for trial.
The court also points out that the justification for categorizing a treating physician as a “fact witness” for purposes of discovery dissolves when his or her intended testimony extends beyond what the treating physician has observed, concluded and done, and addresses what another physician should have observed, concluded or done. If the defendant questions the physician about what standard of care applies generally, or whether the standard has been breached, such opinion testimony is extraneous to that physician’s treatment of the patient.
There is a great deal of controversy regarding this issue in the County Courts of the State of Florida. It has become common for treating physicians to accept an assignment of PIP benefits and to later bring action if the insurance carrier refuses or reduces payment. In each of these cases the insurance carrier will want to depose the treating physicians. The county and circuit court of this state are now divided on whether the treating physician can require an expert witness fee for testifying about the treatment for which he or she is seeking payment. In many of these cases the fees sought for testimony greatly exceed the amount being claimed. Even in the event the insurance carrier successfully defends the claim, the treating physician would have earned more from the deposition fee than the amount originally sued upon.
The following cases provide that a treating physician is not entitled to be called as an expert witness and obtain reasonable fees for his/her testimony: Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998); Frantz v. Golebiewski, 407 So. 2d 283 (Fla. 3d DCA 1981); Leverone v. Liberty Mutual Insurance Co., 9 Fla. L. Weekly Supp. 51a (Fla. Pinellas County Ct. 2001).
Alternately, the following courts have ruled that a treating physician is entitled to demand an expert witness fee for deposition. Medical Evaluation Center, Inc. v. Liberty Mutual Insurance Co., 8 Fla. L. Weekly Supp. 392a (Fla. Hillsborough County Ct. 2001); Rubenstein v. Progressive Express Ins. Co., 10 Fla. L. Weekly Supp. 212 (Fla. Broward County Ct. 2003); Shaker v. Progressive Express Ins. Co., 9 Fla. L. Weekly Supp. 870 (Fla. Palm Beach County Ct. 2002); Rivas Therapy Clinic v. Allstate Indemnity Co., 9 Fla. [L.] Weekly Supp. 251 (Fla. Hillsborough County Ct. 2002); Williams v. Allstate Indemnity Co., 9 Fla. L. Weekly Supp. 713 (Fla. Palm Beach County Ct. 2002); Moreno v. United Automobile Ins. Co., 9 Fla. L. Weekly Supp. 196 (Fla. Miami-Dade County Ct. 2001); Munoz v. Miami Chiropractic Assoc., 9 Fla. L. Weekly Supp. 196 (Fla. Miami-Dade County Ct. 2001); Brass & Singer, D.C., P.A. v. Progressive Express Insurance Co., 9 Fla. L. Weekly Supp. 629 (Fla. Hillsborough County Ct. 2002).
It is clear that a controversy exists which is causing conflicts within each of the Districts, Circuits and Counties. There is not even consistency within the individual counties. It is causing large amounts of court time to be dedicated to the resolution of this issue in each individual case. There is no standard and the parties in each and every case are in doubt as to what a particular judge will rule when the issue is presented.
The court hereby certifies pursuant to Florida Rule of Appellate Procedure 9.160, to the Florida Fourth District Court of Appeal, as a question of great public importance, the following question: Is a treating physician, who has accepted an assignment of benefits from a patient, and has brought action to collect those benefits, entitled to be paid an “expert witness” fee when deposed by the defendant insurance carrier on the facts surrounding the treatment of the insured assignor patient?
Based upon the foregoing, it is hereby;
ORDERED AND ADJUDGED that Plaintiff’s Motion for Protective Order is DENIED.
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