10 Fla. L. Weekly Supp. 973a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician — Where insurer seeks to depose treating physician employed by plaintiff medical provider regarding medical care and treatment provided to insured, trial court did not err in holding that witness is entitled to expert witness fee — If insurer seeks only factual testimony regarding medical care and treatment, it has option to depose physician’s medical records custodian
PROGRESSIVE EXPRESS INSURANCE COMPANY, Appellant, vs. PROFESSIONAL MEDICAL GROUP, INC., a/a/o Jurden Ugalde, Appellee. Circuit Court, 11th Judicial Circuit (Appellate) in and for Miami-Dade County. Case No. 03-170 AP. L.C. Case No. 02-10561 SP 25. October 14, 2003. On Petition for Writ of Certiorari from the County Court for Miami-Dade County. Counsel: Douglas H. Stein, Anania, Bandklayder, Blackwell, Baumgarten, Torricella & Stein, for Petitioner. Mari Sampedro-Iglesia, Jose R. Iglesia, P.A., for Respondent.
(SANDY KARLAN, GILL S. FREEMAN and RONALD C. DRESNICK, JJ.)
(SANDY KARLAN, J.) This is a petition for writ of certiorari review of the lower court’s order granting the respondent/medical provider’s motion for a protective order. The lower court’s order holds that the insured’s treating physician, Dr. Pablo Mursuli, is entitled to receive an expert witness fee for his deposition testimony regarding the medical care and treatment provided to the insured.
In the instant case, the respondent, as assignee of the insured, filed a complaint against the petitioner/insurer. The complaint sought payment of personal injury protection benefits, (PIP), for health care services that were provided by the insured’s treating physician, Dr. Mursuli. The petitioner served a notice of taking deposition of Dr. Mursuli. The respondent filed a motion for a protective order arguing that Dr. Mursuli was an independent contractor and should be paid an expert witness fee prior to being deposed. The petitioner filed its response and a motion to compel deposition of the treating physician without witness fee. In its response, the insurance company argued that Dr. Mursuli is an employee of the respondent, a fact witness as a treating physician, and not entitled to be paid for his deposition testimony. A hearing convened. The trial court entered an order granting the respondent’s motion for protective order. This petition ensued.
The pertinent question before this court is whether an insured’s treating physician is entitled to receive an expert witness fee for his deposition testimony regarding the medical care and treatment provided to petitioner’s insured.
Petitioner’s main contention is that the insured’s treating physician is a fact witness, and therefore, is not entitled to be paid an expert witness fee as a condition precedent to being deposed. Additionally, petitioner acknowledges that Fla. R. Civ. P. 1.390 states that an expert witness is entitled to a reasonable witness fee, but it argues that Fla. R. Civ. P. 1.280 dictates that only “facts known and opinions held by experts. . . acquired or developed in anticipation of litigation or trial” are discoverable from an expert. Since treating physicians do not acquire their expert knowledge for the purposes of litigation, but rather in the course of treating their patient, they should be considered ordinary fact witnesses.
In contrast, respondent argues that the treating physician, Dr. Mursuli, is an expert as defined by Fla. R. Civ. P. 1.390(a), thereby entitling him to an expert witness fee. Respondent argues that the plain language of the rule is clear, and there is nothing discretionary about the rule, nor are there any exceptions.
This court recognizes that there appears to be a conflict within the Eleventh Judicial Circuit and among other judicial circuits pertaining to the issue at hand. See Gonzalez v. State Farm Mutual Automobile, 8 Fla. L. Weekly Supp. 114a (Fla. Dade Cty. Ct. 2000) (where this circuit’s county court held that a plaintiff’s treating physician is not entitled to payment of an expert witness fee.); Kurdian v. State Farm Mutual Auto Ins. Co., 7 Fla. L. Weekly Supp. 694a (Fla. Broward Cty. Ct. 2000) (where the treating physician was ordered to appear for deposition without receiving an expert witness.); but see Leida B. Moreno v. United Automobile Insurance Company, 9 Fla. L. Weekly Supp. 196a (Fla. Dade Cty. Ct. 2001) (where this circuit’s county court held that a plaintiff’s treating physician is entitled to payment of an expert witness fee.); Medical Evaluation Centers, Inc. v. Liberty Mutual Insurance Company, 8 Fla. L. Weekly Supp. 392a (Fla. Hillsborough Cty. Ct. 2001) (where the insurance company was ordered to pay the treating physician an expert witness fee for his deposition testimony and portal to portal time within fifteen days of the date of his deposition.)
Fla. R. Civ. P. 1.390, “Depositions of expert witnesses,” paragraphs (a) and (c) read as follows:
(a) Definition. The term “expert witness” as used herein applies exclusively to a person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about a subject upon which called to testify.
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(c) Fee. An expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine. The court shall also determine a reasonable time within which payment must be made, if the deponent and party cannot agree. All parties and the deponent shall be served with notice of any hearing to determine the fee. Any reasonable fee paid to an expert or skilled witness may be taxed as cost.
Based on the wording in paragraph (a), it seems clear that a physician falls within the meaning of the definition of “expert witness” under the rule. Additionally, when examining the plain language of the rule, the use of the word “shall” in paragraph (c) indicates that a party seeking to depose an expert witness must pay him a reasonable fee for his testimony. Further, there are no exceptions listed under the rule.
However, when examining the wording of Fla. R. Civ. P. 1.280, “General provisions governing discovery,” it fails to address the fee entitlement for expert witnesses’ deposition testimony. Consequently, Rule 1.280 appears to be inapplicable to the issue at hand. Further, in a recent Third District Court of Appeal case, Lion Plumbing Supply Inc. v. Suarez, 844 So. 2d 768, 771 (Fla. 3d DCA 2003), the court addressed the issue of whether treating physicians should be considered experts for the purpose of the “one-expert-per-specialty rule.” The Lion court stated the following:
The plaintiffs argue that this district has established a black letter rule whereby the testimony offered by a treating physician is never considered for purposes of a one-expert-per-side limitation. We do not think the cases support so rigid interpretation. . . . .Where, as here, a treating general practitioner serves as a conduit to place specialist testimony before the jury, or offers medical opinions based on specialist reports, the defending parties must have a fair opportunity to respond by presenting opposing expert testimony. Id. at 771.
Thus, it appears that the Lion court held that the determination of whether a doctor should be treated as an expert or an ordinary fact witness for the purpose of the “one-expert per specialty rule” depended upon the nature of the testimony that the party sought to elicit from the doctor.
In the instant case, petitioner is seeking to depose the insured’s treating physician regarding the medical care and treatment provided to the insured. Under Fla. R. Civ. P.1.390, the treating physician clearly falls within the definition of an expert witness, thereby entitling him to receive an expert witness fee. Further, if petitioner is only seeking to elicit factual testimony regarding the medical care and treatment provided to its insured, it has the option of deposing the physician’s medical records custodian, in conjunction with subpoenaing any and all medical records relating to the patient’s treatment and condition for its review.
Based on the foregoing reasoning, we find that the lower court did not err in granting the respondent’s motion for protective order holding that the insured’s treating physician is entitled to receive an expert witness fee for his deposition testimony. Therefore, the petition for writ of certiorari review is hereby DENIED.
As to the respondent’s motion for attorney’s fees, it is hereby GRANTED conditioned upon respondent ultimately prevailing with a recovery on the policy. (DRESNICK, J., concurs.)
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(FREEMAN, J., specially concurring.) Progressive is seeking to take the deposition of the treating physician in this matter to inquire regarding the necessity and rationale for the treatments rendered. As such, Progressive is seeking the treating physician’s expert opinion. He is therefore entitled to receive payment as an expert witness. (DRESNICK, J., concurs.)
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