Must Medical Treaters Be Paid For Their Testimony?

In personal injury cases, the plaintiff's treating physicians generally charge a fee for their testimony1.

Although Florida Rule of Civil Procedure 1.390 entitles "expert" witnesses to a reasonable fee, an open question remains as to whether treating physicians are really experts for purposes of this rule.2 If they are simply fact witnesses explaining their medical observations, then a fee for their testimony may not be required.

The only Florida appellate court to address this issue essentially ruled a fee is unnecessary, but the opinion offers limited reasoning. In Comprehensive Health Center, Inc. v. United Automobile Insurance Company,3 a healthcare center sued its patient's insurer in county court for PIP benefits. When the insurer sought to depose two of the center's doctors, the center filed a motion for a protective order seeking prepayment of the doctors' deposition fees. At the hearing on the motion, the insurer argued the doctors were not entitled to fees because they were mere fact witnesses who would explain their treatment of the center's patient. The county court disagreed, and ordered the insurer to pre-pay $350 to each doctor.

The appellate division of the circuit court reversed. It reasoned the treating physicians were not experts "because they do not obtain their information for the purpose of litigation but rather in the course of treating their patients.4 The healthcare center then sought certiorari in the Third District Court of Appeal, which denied the petition. The Third District stated, without discussing Rule 1.390 or offering further explanation, "The circuit court correctly decided to apply Frantz.5'

In Frantz v. Golebiewski,6 a plaintiff sued a doctor for malpractice. The defendant's attorney then obtained a sworn statement from the plaintiff's subsequent doctor without first giving the plaintiff notice. When the plaintiff learned of the statement, she filed a motion to compel its production. The trial judge granted the motion and ordered the defendant to produce the statement. The defendant refused. The trial court then fined the defendant, prohibited the use of the statement by the defendant for any purpose, and ordered that the plaintiff be given notice before any such further statements were taken.

The Third District granted the defendant's petition for certiorari. It rejected the plaintiffs argument that a treating physician is governed by Florida Rule of Civil Procedure 1.280(b)(5), which controls...