23 Fla. L. Weekly Supp. 344a
Online Reference: FLWSUPP 2304MITCInsurance — Personal injury protection — Discovery — Depositions — Treating physician is entitled to reasonable expert witness fee for his deposition — Physician’s affiliation with named plaintiff does not preclude award of expert witness fee
NEUROLOGY PARTNERS, PA., as assignee of TORLUND MITCHELL, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Small Claims Court, 4th Judicial Circuit in and for Duval County. Case No. 16-2013-SC-001556, Division J. September 3, 2015. Eleni Derke, Judge.
ORDER DENYING DEFENDANT’S MOTIONTO COMPEL TESTIMONY OF THE TREATINGPHYSICIAN WITHOUT PAYMENTOF EXPERT WITNESS FEE
This cause came to be heard upon Defendant’s Motion to Compel Testimony of Dr. Emas, M.D., Without Payment Of Expert Witness Fee. Both parties were represented by counsel. The Court, having heard arguments of the parties, denies Defendant’s Motion and finds that Dr. Emas is entitled to an expert fee pursuant to Rule 1.390, Florida Rules of Civil Procedure, as he is being asked to testify, as a treating physician, on the subject of which he is an expert. Defendant cited to Frantz v. Golebiewski, 407 So. 2d at 285 (Fla. 3rd DCA 1981), and Ryder Truck Rental v. Perez, 715 So.2d (Fla. 3rd DCA 1981) as support for its argument that Dr. Emas, as a treating physician, did “not acquire his expert knowledge for the purpose of litigation but rather simply in the course of attempting to make his patient well”, and therefore does not qualify as an expert witness within the meaning of Florida Rules of Civil Procedure 1.390 and 1.280.
This Court finds that neither the Frantz nor the Ryder opinions have any application to the issue in this motion, which is whether treating physicians are entitled to be paid a reasonable expert witness fee for their depositions. The Florida Supreme Court, in Hall v. Haldane, 243 So. 2d 571 (Fla. 1971), specifically held that treating physicians are expert witnesses for the purposes of the Florida Rules of Civil Procedure. Therefore, this Court is bound to find that Dr. Emas, as treating physician, is qualified as an expert witness.
This Court also considered Defendant’s argument that, because Dr. Emas is affiliated with Plaintiff’s practice; that he should not be awarded an expert witness fee. This Court finds that this fact is immaterial. This cause of action, seeking unpaid Florida No-Fault benefits, could only be brought by the Plaintiff due to an assignment from the insured. Dr. Emas himself is not the named Plaintiff, but is affiliated with Plaintiff Neurology Partners. Neurology Partners is stepping into the shoes of the insured, pursuant to the assignemnt of benefits, and is therefore not a typical Plaintiff. The Court considered the rulings of Judge Roberto Arias in Neurology Partners, P.A. as assignee of Timothy Adams v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 597A (4th Judicial Circuit, Duval County, November 17, 2014), as well as Judge Brent Shore’s similar ruling in Neurology Partners, P.A., as assignee of Anthony Parker v. State Farm Mutual Automobile Insurance Company, 22 Fla. L. Weekly Supp. 597B (4th Judicial Circuit, Duval County, December 5, 2014), in reaching its conclusion. There is no basis in Florida law to rule that a treating physician, otherwise qualified as an expert under the Rules, is not entitled to be paid a reasonable expert witness fee because he is affiliated with a Plaintiff medical provider seeking denied No-Fault benefits.
Lastly, the Court considered the ruling from Judge Lawrence Haddock of the 4th Judicial Circuit in Zitzman v. Get Fit Enterprises, 20 Fla. L. Weekly Supp. 559A (4th Judicial Circuit, Duval County, April 4, 2013): Judge Haddock ruled that, for the purpose of determining whether an otherwise qualified physician is entitled to be paid a reasonable expert witness fee for his testimony, the plain language of Rule 1.390 makes no distinction between an expert treating physician or an expert physician who did not treat the patient. The plain meaning of Rule 1.390 requires that expert witnesses be paid a reasonable fee for their testimony, and the expert’s status as treating physician, or as being affiliated with the named Plaintiff, is no basis for an exception to that Rule.
The issue in this case is whether the treatment performed by Dr. Emas at Plaintiff’s office was reasonable, necessary and for injuries related to the patient’s covered motor vehicle accident. Defendant has obtained an “IME” opinion from a qualified expert witness physician, that contrary to Dr. Emas’ expert opinion, the denied treatment is not reasonable and necessary, and therefore not payable. Defendant argues that it is not seeking to depose Dr. Emas with regards to his expert opinion, as it acknowledges that Dr. Emas is expected to opine that the treatment he performed was necessary and should be paid. Instead, Defendant claims that it only wants “to question Dr. Emas about the facts and circumstances regarding the medical treatment”. This Court finds that this argument has no merit. If Plaintiff seeks to depose Defendant’s expert witness, Plaintiff must pay that witness a reasonable expert fee in order to do so. The primary issue in this case involves two contrary expert witness opinions as to whether the benefits are payable. If Defendant seeks to depose Plaintiff’s expert, then like Plaintiff, Defendant must also pay Plaintiff’s expert witness a reasonable expert witness fee, pursuant to the Florida Rules of Civil Procedure.
It is, therefore,
ORDERED:
1. Defendant’s Motion to Compel Testimony of Dr. Emas, M.D., without Payment of Expert Witness Fee is DENIED.
