11 Fla. L. Weekly Supp. 52a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician who testifies regarding knowledge of patient’s treatment, diagnosis or prognosis does not express expert opinion — Motions for protective order and expert witness fee denied — Question certified whether treating physician who has accepted assignment of benefits from a patient and has brought action to collect those benefits is entitled to be paid an expert witness fee when deposed by insurance carrier on the facts surrounding the treatment of the insured assignor patient
ORTHOPAEDIC CARE SPECIALISTS, P.L. (Richard Williams), Plaintiff, v. PROGRESSIVE EXPRESS INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. MC-03-1040-RJ. September 30, 2003. Peter M. Evans, Judge. Counsel: Andrew D. Wyman, Marks & Fleischer, Ft. Lauderdale. Erin H. Larabee, Williams, Leininger & Cosby, P.A., West Palm Beach.
ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AND MOTION FOR EXPERT WITNESS FEE
THIS MATTER having come before the Court upon Plaintiff’s Motion for Protective Order and Motion for Expert Witness Fee on September 9, 2003 and the Court having reviewed the submitted memorandums of law, having heard argument, and otherwise being fully advised in the premises, this Court makes the following findings:
1. This motion arises from a Personal Injury Protection suit, involving the non-payment of medical bills submitted by the Plaintiff to Defendant.
2. The Defendant has issued to the Plaintiff Notices for Deposition for “the Person with the Most Knowledge as to Treatment”.
3. The Plaintiff filed a Motion for Protective Order and Motion for Expert Witness Fee 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.
4. The Person with the Most Knowledge as to Treatment of the Insured, Richard Williams, is Dr. Richard L. Weiner.
5. Plaintiff relies on Florida Rule of Civil Procedure 1.390(a), in requesting an expert witness fee for the Person with the Most Knowledge as to Treatment.
6. This Court relies on its previous ruling in Boca Medical Therapy, Inc. (Michael LLera) v. Progressive Express Insurance Company, Case No. MS-02-025030-RJ, County Court for Palm Beach County.
7. Expert opinions are those acquired and developed in anticipation of litigation 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).
8. A physician or other health care practitioner, who testifies regarding his/her knowledge of the patient’s treatment, diagnosis of 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 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. Spalding, 60 Cal. Rptr. 2d 377, 384-86 (Cal. 3d Dist. Ct. App. 1997).
9. 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 bringing an action to collect his own fees, concerning prognosis, diagnosis, causation of the injuries, duration, or as to the reasonableness and necessity of the doctor’s bills is testimony acquired from personal observation rather than from information provided by a party in anticipation of litigation or in preparation for trial.
10. 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.
11. 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.
12. 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); Leveron v. Liberty Mutual Insurance Co., 9 Fla. L. Weekly Supp. 51a (Fla. Pinellas County Ct. 2001).
13. 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., 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).
14. 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 and Motion for Expert Witness Fee is DENIED.
* * *
