10 Fla. L. Weekly Supp. 428a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician testifying in deposition to explain charges for treatment billed and policies and procedures employed to determine if charges were reasonable, necessary, and related to covered accident testifies as fact witness, not expert — Physician ordered to appear for deposition without payment of expert witness fee
ST. AUGUSTINE PHYSICIANS ASSOCIATES, INC., D/B/A MONAHAN CHIROPRACTIC CLINIC (Brian Hall), Plaintiff(s), vs. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 7th Judicial Circuit in and for Putnam County. Case No. 00-0466-SC. February 4, 2003. Elizabeth A. Morris, Judge. Counsel: Roberts J. Bradford, Jr., Marks & Fleischer, P.A., Fort Lauderdale, for Plaintiff. James C. Rinaman, III, McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., Jacksonville, for Defendant.
ORDER ON PLAINTIFF’S MOTION TOCOMPEL DEPOSITION OF DR. MONAHAN WITH EXPERT WITNESS FEES
THIS CAUSE came before the Court on Plaintiff, ST. AUGUSTINE PHYSICIANS ASSOCIATES, INC., Motion to Compel Expert Witness Fee and/or Motion For Protective Order, and the Court having heard argument of counsel and Dr. Monahan, and being otherwise fully advised of the premises, finds as follows:
1. Plaintiff, St. Augustine Physicians Associates, Inc., D/B/A Monahan Chiropractic Clinic, provided the insured with medical services for an automobile accident which occurred on August 19, 2000. Plaintiff gave notice of covered losses and the Plaintiff made demand for PIP benefits for reasonable, necessary and related medical treatment pursuant to an assignment of benefits. Plaintiff sued Defendant alleging that Defendant failed to pay PIP benefits in accordance with the law.
2. Defendant, PROGRESSIVE EXPRESS INSURANCE COMPANY, had scheduled the deposition of Martin Monahan, D.C., to take place on January 22, 2003, regarding the medical care and treatment provided to Defendant’s insured, Brian Hall.
3. The Defendant has refused to agree to pay Dr. Monahan an expert witness fee for his testimony because it was only seeking fact testimony rather than medical opinion testimony. Bills for Dr. Monahan’s services are at issue in this lawsuit.
4. Plaintiff filed a Motion to Compel Expert Witness Fee and/or Motion For Protective Order. Defendant filed a Response to Motion to Compel Expert Witness Fee and/or Motion For Protective Order.
5. Dr. Monahan was the treating Chiropractor for the insured in this case.
6. Florida Law makes a clear distinction between a physician acting as an “expert witness” and a “treating physician”. Ryder Truck Rental v. Perez, 715 So. 2d 289 (Fla. 3rd DCA 1998); Frantz v. Golebiewsky, 407 So. 2d 283 (Fla. 3rd DCA 1981). Both cases hold in the context of civil procedure, a Plaintiff’s treating physician is not an “expert”. The distinction between an expert witness and a treating physician is especially significant when it is the bills of the treating physician which are at issue in the litigation. It is the necessity, relatedness and reasonableness of Dr. Monahan bills that are at issue in this case, and he is, therefore, the real party in interest. Kurdian v. State Farm Auto Ins. Co., 7 FLW [Fla. L. Weekly] Supp. 694a (County Court, 17th Judicial Circuit in and for Broward County 2000).
7. The testimony that Dr. Monahan will be asked to give at his deposition is not in the nature of that of an expert, but rather as a fact witness to explain charges for treatment billed, and the policies and procedures that were employed to determine if charges were reasonable, necessary and related to the accident covered by the Defendant’s policy which is at issue in this case.
IT IS HEREBY ORDERED AND ADJUDGED:
8. That Plaintiff’s Motion to Compel Expert Witness Fee and/or Motion For Protective Order be DENIED. Dr. Martin Monahan, D.C., shall appear for deposition without payment of expert witness fee.
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