7 Fla. L. Weekly Supp. 694a
Insurance — Personal injury protection — Role of insured’s treating physician in dispute between insured and insurer relating to bills submitted by treating physician was that of fact witness, not expert witness, and accordingly, treating physician is not entitled to payment of expert witness fee — Motion to compel deposition of treating physician without expert witness fee granted
Dismissed with prejudice at 8 Fla. L. Weekly Supp. 204a
GREGORY KURDIAN, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Florida Corporation, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 99-21968 COCE 53. June 29, 2000. William W. Herring, Judge. Counsel: Miriam Merlo, Miriam R. Merlo, P.A., for Plaintiff. Steven R. Woods, Dickstein, Reynolds & Woods, Ft. Lauderdale, for Defendant.
ORDER ON DEFENDANT’S MOTION TO COMPEL DEPOSITION OF DR. GORENBERG WITHOUT EXPERT WITNESS FEE
THIS CAUSE came before the Court on Defendant, STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY’s, Motion to Compel Deposition of Dr. Gorenberg Without Expert Witness Fee, and the Court having heard argument of counsel and Dr. Gorenberg, and being otherwise fully advised in the premises, finds as follows:
1. Plaintiff has sued Defendant alleging that Defendant has failed to pay certain personal injury protection (PIP) and Med Pay benefits in accordance with the applicable insurance policy and the Florida no-fault statute. Plaintiff alleges that one of the bills Defendant has not paid is that of Stuart G. Gorenberg, D.C.
2. Dr. Gorenberg acted as a treating physician with respect to the Plaintiff. Dr. Gorenberg was present at the hearing and did not claim he was not the plaintiff’s treating physician. The Defendant does not argue (and this court does not find) that Dr. Gorenberg is not an expert. Rather, Defendant argues that Dr. Gorenberg’s role in this case was not that of an “expert” which acquired knowledge of facts and developed opinions in anticipation of litigation. This court agrees that Dr. Gorenberg’s role in this case is that of a treating physician, not an expert witness.
3. Florida law makes a clear distinction between a physician acting as an “expert witness” and a “treating physician”. Ryder Truck Rental v. Perez, 715 So.2d 289 (Fla. 3d DCA 1998); Frantz v. Golebiewsky, 407 So.2d 283 (Fla. 3d DCA 1981). Both cases held in the context of civil procedure, that a plaintiff’s treating physician was not an “expert witness”.
4. In Ryder, the Defendant sought to call their defense expert and the plaintiff’s treating physician to testify on the issue of permanency. The trial court adhered to its “one witness per specialty” rule, and allowed the Defendant to present expert opinions from, either the defense expert, or the treating physician, but not both. The Third District Court of Appeal held that the treating physicians should not have been classified as expert witnesses, but as ordinary fact witnesses not impeded by the “one expert per specialty” rule. The court also stated, citing Frantz, “treating physicians do not acquire their `expert knowledge for the purpose of litigation but rather simply in the course of attempting to make [their] patient well’.”
5. The distinction between an expert witness and a treating physician is especially significant when it is the bills of the treating physician which are in issue in the litigation, as they are in this case. Defendant argues that where it is the treating physician’s bills which are in issue, the treating physician is the real party in interest. Defendant points out that when the insured/patient files suit for PIP medical benefits, it is the treating physician that actually receives the money when there is a recovery. Moreover, as a practical matter, whenever there are settlement negotiations between an insured and a PIP carrier, it behooves the plaintiff to obtain the treating physician’s agreement or consent to accept any certain amount offered by a PIP carrier. Thus, even where treating physicians are not the actual named plaintiff, they often have an actual role in the settlement of PIP claims and suits. Defendant argues that it is poor policy to pay treating physicians expert witness fees for testimony when their bills are in issue because the fee provides an incentive for the treating physicians to not agree to the resolution of PIP suits, at least until after they are deposed and collect a fee.
Additionally, when a treating physician is deposed in a typical suit for PIP benefits, the physician will be questioned on matters that pertain to whether their treatment and services rendered to the plaintiff were reasonable, necessary and related to the subject accident. The testimony of the treating physician, while it may well be entirely accurate, is by its nature self serving. Defendant argues that it is poor policy to require that the treating physician, a fact witness, be paid for providing testimony justifying their own actions, especially when it is those actions which the Defendant questions and which are in issue.
This court agrees that policy considerations do not favor the payment of an expert witness fee to a treating physician when the charges of the treating physician are in issue.
6. The issue is analogous to a case in which a prevailing party is attempting to tax attorney’s fees against the losing party. When an attorney who represented the party entitled to recover fees testifies as to the reasonableness of his or her fees and the necessity of the work performed, he or she is not entitled to an expert witness fee. On the other hand, the back up attorney retained to render an opinion as to the handling attorney’s charges is entitled to a fee. Likewise, a treating physician should not be entitled to an expert witness fee, but a back up expert hired to render opinions regarding the services provided by the treating physicians would be entitled to a fee.
7. Dr. Gorenberg’s role in this case is that of a fact witness, not an expert witness, therefore he is not entitled to payment of an expert witness fee.
It is therefore,
ORDERED AND ADJUDGED that Defendant’s Motion to Compel Deposition of Dr. Gorenberg Without Expert Witness Fee is GRANTED. Dr. Stuart G. Gorenberg, D.C. shall appear for deposition without payment of an expert witness fee. The scheduling of the deposition is, of course, to be properly cleared with counsel and Dr. Gorenberg.
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