Some attorneys are using a strategy of subpoenaing physicians for fact testimony and then asking them opinion questions that amount to expert testimony. To fight this subpoena abuse, here’s a primer on expert witness court precedent.
In general, if a physician testifies at a deposition or trial strictly as a treating physician a nominal statutory rate is paid. As a treating physician, the testimony is expected to be solely the facts noted in the medical record and are not required to give any opinions. For a physician to be considered an expert witness the law defines the following: The witness must have special knowledge, training, skill, or experience in the subject about which he or she is to testify. This knowledge must be specialized so that it is not possessed by the average person. As an expert witness, the physician is then allowed and often required to offer an opinion as to potential causes of the injuries, explanation of the diagnosis, and prognosis of the patient. As an expert witness, the attorney or court is required to pay for the physician’s time and effort needed to prepare and review the medical records, for the deposition, and/or court appearance. The uncertainty of when a treating physician’s testimony is used to obtain an expert opinion causes controversy over a fee payment and can lead to acrimony between the physician and the attorneys and court.
Federal Rules of Civil Procedure 26, 701 and 702 are the laws that govern the categorization of fact witnesses and expert witnesses. For decades federal and state courts have attempted to clarify the classification of physicians acting as a fact witness and/or expert witness. Despite similar conditions, to this day courts across the country remain divided in the decision to pay reasonable fees for treating physician’s testimony.
Because the laws regarding treating physicians and expert fees remain unclear, it is primarily the physician’s responsibility to ensure he is properly remunerated for his time. The California Medical Association has made the following recommendation regarding payment for treating physicians as expert witnesses. The CMA advises that if asked questions requiring expert opinion during the deposition, the physician in turn ask the inquiring attorney to promise “on the record” to pay within five days of receipt the provider’s itemized bill for reasonable expert fees for the entire deposition. Fortunately for California physicians, in 1995, the California Legislature introduced and passed a bill (AB 1204) that ensures a treating physician payment of expert witness fees if the physician was asked an opinion on one or more subjects. In addition, the California Statute CCP Section 2034 (i)(2) ruled if an attorney asks a treating physician to state an opinion for a case, the treating physician should be recognized the same as any other expert witness and the attorney will pay the physician reasonable fee for the time spent throughout the entire examination of the physician. The physician can charge hourly or daily, depending on the length of examination. To avoid misunderstandings, it is prudent for the physicians to contact the attorney(s) prior to testimony requesting reasonable compensation for time and forewarned if declined no expert opinion will be offered. My practice is to send them a letter notifying them of this and informing them of the fees I charge.To download a typical letter than can be sent, click here.
click on the chart below to view the hi-res PDF version
Paul Kivela, MD is managing partner of the Napa Valley Emergency Medical Group in California. He is also medical director of Medic Ambulance and currently serves on the board of the Queen of the Valley Medical Center. He is former president of the Napa County Medical Association.