13 Fla. L. Weekly Supp. 730a
Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician who has accepted assignment of benefits from insured and brought action to collect benefits and who testified at deposition regarding billing practices of his office is fact witness not entitled to expert witness fee — Question certified
RICHARD K. LOHMANN, M.D., P.A., as assignee of SHAKELA MINNS, Plaintiff, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Defendant. County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 502005SC009582XXXXMB, Division RE. April 3, 2006. Peter M. Evans, Judge.
ORDER
THIS MATTER came before the Court on the Plaintiff’s Motion for Protective Order and Motion to Compel Expert Fee. This motion arises from a Personal Injury Protection suit, involving the non-payment of medical bills submitted by Plaintiff, as assignee of Shakela Minns, to Defendant. The Defendant has issued notices for the deposition of Dr. Lohmann. The Plaintiff filed a Motion for Protective Order and Motion to Compel Expert Fee, objecting to the deposition of Dr. Lohmann, the treating physician.
The Plaintiff relies on Florida Rule of Civil Procedure 1.390(a), in requesting an expert witness fee for his deposition testimony. This Court relies on its previous rulings in Boca Medical Therapy, Inc., (Michael Llera) v. Progressive Express Insurance Company, Case No. MS-02025030-RJ, County Court for Palm Beach County and Orthopaedic Care Specialists, P.L. (Richard Williams) v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 52a (Fla. Palm Beach County Ct. 2003).
Florida Rule of Civil Procedure 1.390(a) provides, in pertinent part, as follows:
The term “expert witness” as used herein applies exclusively to a person duly and regularly engaged in the practice of a profession who hold 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 the subject upon which called to testify.
Subsection (c) goes on to state in pertinent part that, an expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the court may determine.
Given the proper circumstances, Dr. Lohmann may qualify to be treated as an expert witness as defined in Rule 1390(a). However, in the instant case, Dr. Lohmann is not being called as a medical expert, but rather to explain the billing practices and procedures of his office. This Court finds that Dr. Lohmann did not testify as an expert in this situation. The subject matter of Dr. Lohmann’s deposition testimony concerns the billing practices of his office. Dr. Lohmann, is therefore, a fact witness.
The county and circuit courts of this state are divided on whether a treating physician can require an expert witness fee for testifying about the treatment for which he or she is seeking payment. There is a general confusion as to whether a treating physician is entitled to an expert witness fee every time they testify, whether this is an issue courts must determine on a case by case basis, or whether the treating physician is never entitled to an expert witness fee because they are a party to the lawsuit. 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. Golebiewsky, 407 So. 2d 283 (Fla. 3d DCA 1981); Kurdian v. State Farm Mutual Automobile Insurance Company, 7 Fla. L. Weekly Supp. 694a (Fla. Broward County Ct. 2000); 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, to be paid by the Defendant, for the time they are deposed. Schnipper Chiropractic Center, Inc. (Venus Beauchant) v. Progressive American Insurance Company, 10 Fla. L. Weekly Supp. 836a (Fla. Palm Beach County Ct. 2003); Moreno v. United Automobile Insurance Company, 9 Fla. L. Weekly Supp. 196a (Fla. Miami-Dade County Ct. 2001); Medical Evaluation Centers, Inc. v. Liberty Mutual Insurance Company, 8 Fla. L. Weekly Supp. 392a (Fla. Hillsborough County Ct. 2001); Williams v. Allstate Indemnity Co., 9 Fla. L. Weekly Supp. 713b (Fla. Palm Beach 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 patient?
Based on the foregoing, it is hereby,
ORDERED AND ADJUDGED that Plaintiff’s Motion for Protective Order and Motion to Compel Expert Fee is DENIED.
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