Kirwan & Spellacy Newsletter

PIP Cases: Expert Fees for Treating Physicians

By Mathew Watkins, Esq.

     Over the recent years, courts have awarded expert witness fees to the Plaintiff's treating physician's deposition testimony. However, while there is a split of authority on this issue, the tide is turning, as more courts have taken a different approach, opining that treating physicians are not entitled to expert witness fees for deposition testimony.

     These courts reason that the issue is controlled by Florida Rules of Civil Procedure 1.280 and 1.390. More specifically, these courts held that a treating physician is not an expert witness under Rules 1.280 or 1.390(a), and therefore is not entitled to an expert witness fee pursuant to Rule 1.390(c). These courts stress that Rule 1.280 permits discovery of facts known and opinions held by experts that were acquired or developed in anticipation of litigation or for trial. See Fla. R. Civ. P. 1.280(b)(4).

   Watkins

   The courts note that a treating physician gains information and develops an opinion in the ordinary course of caring for a patient, rather than in anticipation of litigation or for trial as specified in Rule 1.280. Under this analysis, a treating physician is a fact witness who is entitled to a regular witness fee for giving testimony.

     The court in United Automobile Insurance Company v. Duncan held that the trial court erred when awarding expert witness fees for deposing the Plaintiff's treating physician. United Automobile Insurance Company v. Duncan, 17 Fla. L. Weekly Supp. 329 (Fla. 11th Jud. Cir. (Appellate) February 11, 2010). In conforming with the reasons above, the court opined that Florida Rules of Civil Procedure 1.280(4) and 1.390(c) authorize expert witness fees for those witnesses who acquire or develop knowledge "in anticipation of litigation or for trial." However, they concluded that treating physicians do not obtain their information for the purpose of litigation, but rather in the course of making their patients well. As such, treating physicians are treated as fact witnesses and are not entitled to charge expert witness fees.

     The court in Schenna v. State Farm previously held that treating physicians are not entitled to expert witness fees for deposition testimony. Schenna v. State Farm Mutual Automobile Insurance Co., 17 Fla. L. Weekly Supp. 301 (Fla. 18th Jud. Cir., May 4, 2009). The court reasoned that because this was a straightforward PIP action, the doctors will not be required to render opinions on issues such as permanency, disability, future medical bills and so forth. Additionally, some of their relevant testimony will be purely factual, such as date of treatment and complaints as related by the Plaintiff. Moreover, in almost every PIP case, the treating is also the Plaintiff by virtue of an assignment from the named insured.

     Finally, in United Automobile Insurance Company v. Pines Total Healthcare, Inc., the court also relied on the fact that the treating physician is an ordinary fact witness, and a result, is not entitled to an expert witness fee for their deposition. United Automobile Insurance Company v. Pines Total Healthcare, Inc., 17 Fla. L. Weekly Supp. 414a (Fla. 11th Jud. Cir. (Appellate), March 9, 2010).

     Plaintiffs asserting that a treating physician is entitled to an expert fee argue that it is the nature of the proffered testimony that determines whether a treating physician is an expert or ordinary fact witness for purposes of the one expert per specialty rule. Progressive Express Ins. Co. v. Prof. Med. Group, Inc. a/a/o Jurden Ugalde, 10 Fla. L. Weekly Supp. 973 (Fla. 11th Cir. Ct. Oct. 14, 2003). If an expert specifically retained for use at trial has expressed or will express opinions regarding the applicability of the professional standard of care, testimony given by treating physicians on the same issue will be precluded by the one expert per specialty rule. See The Florida Bar, Expert Witnesses, MALP FL-CLE 9-1 § 9.10 (2006). Thus, a treating physician can be considered an expert, restrict the number of expert witnesses available in a specialty, and may be entitled to an expert witness fee under the Florida Rules of Civil Procedure.

     This argument was most recently noted in United Automobile Insurance Company v. Florida Wellness & Rehabilitation Center, Inc., Case No. 08-162 AP. L.C. (Fla. 11th Jud. Cir. (Appellate) March 16, 2010). The court held where an insurer sought to depose a treating physician regarding medical treatment and care of the insured, the trial court did not err in granting motion to compel payment of an expert witness fee. In light of the above reasoning, the Court did not find that the trial court erred in finding that the treating physician would fall within the definition of an expert witness, thereby entitling him to an expert witness fee.

     In sum, there is clearly conflicting authority regarding the issue of awarding expert witness fees for the deposition testimony of the treating physician. While judges have certified this issue to be one of great public importance, there has not been a clear ruling from the district courts of appeals on this issue.