23 Fla. L. Weekly Supp. 798a
Online Reference: FLWSUPP 2307DMEDInsurance — Personal injury protection — Discovery — Depositions — Expert witness fee — Treating physician is entitled to expert witness fee for deposition testimony
BEALS INJURY CENTER INC (Patient: Danilo Medina), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 20th Judicial Circuit in and for Collier County, Civil Division. Case No. 11-2014-CC-001110-0001-XX. November 16, 2015. Honorable Janeice Martin, Judge. Counsel: Michael Prince, Ellis, Ged & Bodden, P.A., Boca Raton, for Plaintiff. Julie Lewis Hauf, Law Office of Julie Lewis Hauf, P.L., Ft. Myers, for Defendant.
ORDER GRANTING PLAINTIFF’S AMENDEDMOTION TO DETERMINE EXPERT WITNESSFEE FOR DEPOSITION AND/ OR MOTIONFOR PROTECTIVE ORDER
THIS CAUSE having come before the Court on October 21, 2015 for hearing on Plaintiff’s Amended Motion to Determine Expert Witness Fee for Deposition and/ or Motion for Protective Order and the Court having heard argument of counsel, and being otherwise fully advised in the premises, finds as follows:
FACTUAL BACKGROUND
Plaintiff filed the instant action alleging breach of contract for the failure to pay personal injury protection benefits for treatment provided to Defendant’s insured, Danilo Medina, as a result of injuries arising from a motor vehicle accident. Defendant noticed the deposition of the treating physician, Dr. Robert Buchanan, to take place on November 11, 2015 regarding the medical treatment and/ or diagnostic testing provided to Danilo Medina. The Defendant refused to agree to pay Dr. Buchanan an expert witness fee for his testimony.
ANALYSIS AND DISCUSSION
Plaintiff argues that the treating physician, Dr. Buchanan, is an expert as defined by Fla. R. Civ. P. 1.390, thereby entitling him to an expert witness fee. Progressive Express Insurance Company v. Professional Medical Group, Inc., 10 Fla. L. Weekly Supp. 973a (Fla. 11th Cir. (Appellate) 2003).
Defendant argues that the insured’s treating physician is a fact witness pursuant to Fla. R. Civ. P. 1.280, and therefore, is not entitled to be paid an expert witness fee. In support of its position, Defendant relies on Comprehensive Health Center, Inc. v. United Automobile Insurance Company, 56 So.3d 41 (Fla. 3d DCA 2010) [36 Fla. L. Weekly D54b].
After review, the Court is not persuaded by the opinion in Comprehensive Health Center, Inc. v. United Automobile Insurance Company as the discussion regarding Fla. R. Civ. P. 1.280 is purely dicta. Instead, the case that is the most helpful to the Court in analyzing the interplay between Rule 1.390 and Rule 1.280 is Progressive Express Insurance Company v. Professional Medical Group Inc.
In that case, Judge Carlin and her panel indicate that it is appropriate to grant an expert witness fee in this type of situation. The most persuasive point that Judge Carlin makes is on page three of the order. “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 all the medical records relating to the treatment and condition.”
Essentially, Judge Carlin is saying, while it is beneficial to the defense to characterize the treating physician as merely a fact witness, the reality is that you all will be asking, not only what did you do, but why did you do it. This takes the treating physician out of the realm of a fact witness into the realm of expert witness. The defense will be exploring the reasonableness of the doctor’s decisions, the medical necessity of those decisions and seeking the doctor’s expert opinion on those.
Accordingly, it is hereby:
ORDERED and ADJUDGED, as follow:
1. That Plaintiff’s Amended Motion to Determine Expert Witness Fee for Deposition and/ or Motion for Protective Order is GRANTED.
2. The treating physician is entitled to compensation of $350/ hour which shall be tendered at least 72 hours ahead of the scheduled deposition.
