16 Fla. L. Weekly Supp. 104b

Insurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is not entitled to expert witness fee for deposition testimony regarding facts surrounding treatment of insured — Question certified: Is a treating physician who has brought an action seeking payment of personal injury protection benefits, entitled to be paid an “expert witness” fee when deposed by the defendant insurance carrier regarding the facts surrounding the treatment of the patient?

ROYAL PALM BEACH MEDICAL CENTER, a/a/o Nicole Eisenberg, Plaintiff(s), vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant(s). County Court, 15th Judicial Circuit in and for Palm Beach County. Case No. 50-2005-CC-011418-XXXX-MB. October 28, 2008. Peter M. Evans, Judge. Counsel: Robert Stein, Young & Adams, P.A., Boca Raton, for Plaintiff. Nicholas A. Zacharewski, Luks, Santaniello, Perez, Petrillo & Gold, Fort Lauderdale, for Defendant.

ORDER ON DEFENDANT’S MOTION TO DETERMINE ENTITLEMENT TO DEPOSITION FEE OF DR. JOHN PAPA, D.C.

This matter having come before the Court on October 8, 2008 for hearing on Defendant’s Motion to Determine Entitlement to Deposition Fee of Dr. John Papa, D.C. Present before the Court appeared counsel for the Plaintiff, Robert Stein, Esquire, and counsel for the Defendant, Nicholas A. Zacharewski, Esquire. Having heard arguments of Counsel, reviewed the pleadings, motions, and evidence before the Court and being otherwise fully advised in the premises, the Court finds as follows:

1. Plaintiff filed this lawsuit seeking payment of unpaid personal injury protection (PIP)/No-Fault benefits on or about September 2, 2005.

2. Defendant noticed Dr. John Papa, D.C., as treating physician with the most knowledge for Royal Palm Beach Medical Center, for deposition to take place on October 23, 2008 at 10:00 a.m. The location of the deposition was at the office of Royal Palm Beach Medical Center, 4971 Le Chalet Boulevard, Boynton Beach, Florida 33436.

3. On or about August 11, 2008, counsel for Plaintiff notified Defendant via facsimile that Dr. Papa charges $400.00 per hour for deposition testimony, and requested payment in advance of the deposition date.

4. On or about August 18, 2008, Defendant filed a Motion to Determine Entitlement to Deposition Fee, asserting Dr. Papa was a treating physician, not hired as an expert in this cause, and as such Dr. Papa should not be entitled to an expert witness fee for testifying in this cause.

5. It is undisputed that Dr. Papa is the Chief Operating Officer for Royal Palm Beach Medical Center and that Dr. Papa examined the patient on the first date of treatment with Royal Palm Beach Medical Center.

6. 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). Further, 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 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. Frantz, 407 at 285.

7. Further, this Court has stated, “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 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.” Dr. Robert Simon (Rosalie Madden) v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 933a (Fla. Palm Beach County Ct. 2003). See also, Orthopaedic Care Specialists, P.L. (Richard Williams) v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 52a (Fla. Palm Beach County Ct. 2003).

8. Plaintiff argues that pursuant to Florida Rule of Civil Procedure 1.390, that Dr. Papa is an expert witness and should be compensated as such for his deposition testimony in this cause.

9. Florida Rule of Civil Procedure 1.390(a) provides, “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 the subject upon which called to testify.”

10. Further, Florida Rule of Civil Procedure 1.390(c) provides, “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 costs.”

11. During the hearing, Plaintiff distinguished the Defendant’s cases used to support the position that an expert fee should not be awarded. In Frantz v. Golebiewski, 407 So.2d 283 (Fla. 3d DCA 1981), the Court did not discuss Florida Rule of Civil Procedure 1.390 and only addressed Florida Rule of Civil Procedure 1.280 concerning expert statements and the expert witness discovery rule. Similarly, in Ryder Truck Rental, Inc. v. Perez, 715 So. 2d 289 (Fla. 3d DCA 1998), the Court addressed the one expert per specialty rule and did not address Rule 1.390 in whether a treating physician qualifies as an expert for purposes of deposition testimony. Plaintiff argued that Dr. Papa would not have been able to treat the assignee without his specialized education, training, and experience under the definition of Rule 1.390(a). Under Florida Rule of Civil Procedure 1.390(c), “an expert or skilled witness whose deposition is taken shall be allowed a witness fee in such reasonable amount as the Court may determine.”

11. This Court is aware that Dr. Papa is a doctor of chiropractic medicine duly and regularly engaged in the practice of chiropractic medicine, who holds a degree from a university or college, and has had special professional training and experience as a doctor of chiropractic medicine.

12. However, this Court is not persuaded that Dr. Papa should be entitled a fee for his deposition testimony based on the facts and rationale listed above.

13. The County and Circuit Courts 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 some of the cases, the fees sought for seeking testimony exceed the amount of the claim.

14. The following courts provide that a treating physician is not entitled to an expert witness fee for deposition testimony: Leveron v. Liberty Mutual Insurance Company, 9 Fla. L. Weekly Supp. 51a (Fla. Pinellas County Ct. 2001); Lohmann v. Progressive American Insurance Company, 13 Fla. L. Weekly Supp. 730a (Fla. Palm Beach County Ct. 2006); Marucci Wellness Center a/a/o Rodriguez v. United Automobile Insurance Company, 15 Fla. L. Weekly Supp. 841a (Fla. Palm Beach County Ct. 2008); Occupational and Rehabilitation Center a/a/o Jason Chamblee v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 367a (Fla. Duval County Ct. 2005); First Coast Medical Center, Inc. a/a/o Violette Pierre-Val v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 230a (Fla. Duval County Ct. 2004); Physicians Injury Care Center, Inc. f/u/b/o Summer Rogan v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 155a (Fla. Orange County Ct. 2004); St. Augustine Physicians Associates a/a/o Heather Barra v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 441c (Fla. Clay County Ct. 2004); A-1 Mobile MRI, Inc. v. Allstate Insurance Company, 10 Fla. L. Weekly Supp. 654b (Fla. Broward County Ct. 2003); Gonzales v. State Farm Mutual Automobile Insurance Company, 8 Fla. L. Weekly Supp. 114 (Fla. Miami-Dade County Ct. 2000); Peter J. Godleski, M.D., P.A. d/b/a Central Florida Orthopaedic & Neurology Specialists (Laguerre) v. Progressive Express Insurance Company, 11 Fla. L. Weekly Supp. 584a (Fla. Seminole County Ct. 2004); Martin v. Landy and Allstate Indemnity Company, 8 Fla. L. Weekly Supp. 635b (Fla. Broward Circuit Ct. 2001).

15. Alternatively, the following courts have found the treating physician is entitled to an expert witness fee for deposition testimony: Medical Evaluation Center, Inc. v. Liberty Mutual Insurance Company, 8 Fla. L. Weekly Supp. 392a (Fla. Hillsborough County Ct. 2001); Rubenstein v. Progressive Express Insurance Company, 10 Fla. L. Weekly Supp. 212 (Fla. Broward County Ct. 2003); Shaker v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 870 (Fla. Palm Beach County Ct. 2002); Rivas Therapy Clinic v. Allstate Indemnity Company, 9 Fla. L. Weekly Supp. 251 (Fla. Hillsborough County Ct. 2002); Williams v. Allstate Indemnity Company, 9 Fla. L. Weekly Supp. 713 (Fla. Palm Beach County Ct. 2002); Moreno v. United Automobile Insurance Company, 9 Fla. L. Weekly Supp. 196 (Fla. Miami-Dade County Ct. 2001); Munoz v. Miami Chiropractic Association, 9 Fla. L. Weekly Supp. 196 (Fla. Miami-Dade County Ct. 2001); Brass & Singer, D.C., P.A. v. Progressive Express Insurance Company, 9 Fla. L. Weekly Supp. 629 (Fla. Hillsborough County Ct. 2002); Scales v. Progressive American Insurance Company, 12 Fla. L. Weekly Supp. 564a (Fla. Duval County Ct. 2005); Graham v. Progressive Express Insurance Company, 12 Fla. L. Weekly Supp. 664b (Fla. Duval County Ct. 2005); All County Medical Center, Inc. a/a/o Irina Davydova v. Allstate Insurance Company, 11 Fla. L. Weekly Supp. 746a (Fla. Broward County Ct. 2004); Del Salto v. The City of Sunrise, 11 Fla. L. Weekly Supp. 635b (Fla. Broward Circuit Ct. 2004); Schnipper Chiropractic Center, Inc. a/a/o Venus Beauchant v. Progressive American Insurance Company, 10 Fla. L. Weekly Supp. 836a (Fla. Palm Beach County Ct. 2003).

16. 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 this issue is presented to the court.

17. This 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 brought an action seeking payment of personal injury protection benefits, entitled to be paid an “expert witness” fee when deposed by the defendant insurance carrier regarding the facts surrounding the treatment of the patient?

Therefore it is accordingly ORDERED and ADJUDGED that Defendant’s Motion to Determine Entitlement to a Deposition Fee of Dr. John Papa, D.C. is hereby granted. Dr. John Papa shall not receive an expert witness fee for his deposition scheduled for October 23, 2008.