Relationships with Physician Expert Witnesses
in The Contra Costa Lawyer October,
will follow the article
Some physicians currently harbor suspicion and
distrust regarding attorneys in general and specifically when the physicians
are asked to serve as expert witnesses. The schism between the professions widens
if an attorney requesting physician testimony tries to avoid paying the
physician for the time and effort needed to prepare the review of medical
records or for deposition or court appearance.
American Medical Association has addressed the ethical issues of the physician
expert witness by stating that an ethical obligation by a physician exists to
help in the administration of justice for the physician’s patient. The
physician witness must not become an advocate or partisan in the legal
proceedings but should be prepared and testify honestly.
This includes giving the party’s attorney all information relating to
the case, whether it affects the client favorably or unfavorably. The physician
may not accept payment contingent upon the outcome of the case, but only as
compensation for the time and effort involved.
providers of health care do not abide by these rules of ethics and testify to
whatever the hiring attorney wants, no matter what the facts of the case may be.
In a recent decision Budwin v. American Psychological Association, 24
Cal. App.4th 875 (1994), the Court of Appeals upheld the right of a
professional association to censure one of its members who allegedly presented
false evidence in a child abuse case. The
litigation privilege does not apply to private organization’s application of
its rules of ethical principles. The
California Board of Quality Assurance (Medical Board of California) also
investigated the case and found no evidence of any violation of the California
Business and Professional Code or the Medical Practice Act.
They therefore did not recommend any discipline against the person’s
If the physician testifies at deposition or court strictly as a
treating physician, the law is clear that no expert witness fee is paid. The
physician is subpoenaed, expected to testify as
to the facts as noted in the medical record and give no opinion. Some attorneys
have tried to use this physician testimony to obtain expert opinion without
footing the bill; they ask questions of the treating physician regarding his or
her opinion about various aspects of the case.
The attorney would cite Bureau of
Medical Economics of San Joaquin County v. Cossette, 44 Cal. App.3d Supp.1
that stood for the premise that if a physician was testifying as both a
percipient and expert witness no expert witness fee was due. An expert witness
fee is paid only to physicians who testify as experts. This led to the problem
of the attorney having at deposition or at trial a physician with a hostile
attitude toward the same attorney who tried to obtain favorable testimony. This
hostility usually came through to the jury and many attorneys lost cases they
expected to win.
statute CCP Section 2034(I)(2), which
took effect after Cossette, supra, changed
the rule stating that if an attorney asks a treating physician to state an
opinion during the deposition, court, tribunal or arbitration in a civil action,
the treating physician be treated the same as any other expert witness and the
attorney pay the physician’s reasonable fee for the time spent from the
deposition’s start through the completion of the examination of the physician.
The physician is due this compensation even if an attorney is late for the
deposition for any reason. The physician may charge an hourly or daily fee; the
latter if the attorney needs the physician available for the full day. Under
these circumstances, the physician foregoes whatever business he or she would
normally perform that day.
statute was questioned recently limited in a California appellate decision
Brun v. Bailey 32 Ca. Rptr. 2d 624.
The attorney refused to pay the provider’s fee stating that he had asked only
fact and not opinion questions. The provider sued the attorney for his fees
and lost the initial trial. This case also was lost on appeal when the court
stated that testimony regarding past treatment, diagnosis and prognosis at the
time of the examination is not expert opinion. (Brun
supra. at 630). The same court stated that if the physician was asked about
the prognosis at the time of the deposition (not when the patient was examined)
or asked about the reasons for the treatments, diagnosis, or prognosis provided
in the past, the court would treat the provider as an expert. The Brun case also
stated that though the attorney asked the provider two opinion questions
during the deposition, this was de minimis
as the deposition transcript ran
92 pages. However, the decision may also relate to the special facts of this
case. Anticipating disagreement over the payment of expert witness fee, the
provider had his own attorney present at the deposition. However, neither
the provider nor his attorney objected to the questions.
associate attorney of a law firm recently used Brun as an attempt to not pay a physician colleague of mine an
expert fee. I advised the physician to talk to the head of the firm and explain
the potential harm to the client’s case. The firm removed the associate from
the case and paid the physician the customary expert fee (the attorney’s
client won the case).
v. Foster 95 Daily Journal 7023, the California Court of Appeal Second
District stated that the attorney for a plaintiff did not have to file an
expert witness declaration if the treating physician is to testify regarding the
patient’s injuries, treatment and prognosis. This differentiates a “hired”
expert from a treating physician, even if that physician is asked “expert”
questions. The court believed that since the physician is testifying from
percipient information, this is akin to the work product doctrine and is
privileged before trial.
California Medical Association recommends that if asked questions about expert
opinion during deposition, providers in turn ask the inquiring attorney to
promise on the record to pay within five days of receipt the provider’s
itemized bill for the reasonable expert fee for the entire deposition. This
response would allow the questioning attorney to decide whether to ask the
opinion questions of the provider. The California Legislature recently
introduced AB 1204 that specifically allows paying a treating physician an
expert witness fee if the physician is asked an opinion on one or more subjects.
dispute as to the amount or the reasonableness of the requested fee may arise if
there is no advance contract. Such disputes can be resolve locally by the
inter-professional committee of the Alameda Contra Costa Medical Association.
A challenge to the reasonableness of the fee may also take place in court under
CCP 2034 (I)(4), but at a greater expense of time, money and potential attorney
prestige. Physicians do discuss among themselves the attorneys who hire them and
how they have treated them. Some attorneys may need to go out of the area for
medical experts due to their poor reputation within the medical community.
In a 1991 Connecticut federal court case Goldwater v. Postmaster General of the United States, 136 F.R.D.337, the court set forth six factors to use when establishing reasonable expert deposition fees:
The witness’ area of expertise
The education and training that is required to provide the expert insight that is sought
The prevailing rates of other comparably respected available experts
The nature, quality and complexity of the discovery responses provided
The cost of living in the particular geographical area
other factors likely to be of assistance to the court in balancing the interests
implicated by Rule 26.
When an attorney asks a physician to be an expert witness, the attorney should pay the physician for the time of the requested work, either at the completion of the work if it is record review or before any actual testimony at deposition or trial, CCP 2034(I)(2). The attorney representing the party designating the expert is liable for the costs of preparing the expert and travel costs incurred CCP 2034(I)(2). If the expert fee does not accompany the service of a proper deposition notice, the expert should not be deposed until the parties stipulate otherwise, CCP 2034(I)(3). If the proceeding lasts longer than anticipated, the remaining payment from the attorney is due within five days of receipt of the expert’s itemized statement (CC 2034(I)(2).). A contract for the proposed work that would include the timeliness of the payment and late fees for any delay in payment should be in effect. The contract also should state what is to happen if the proceeding is postponed or canceled without reasonable notice to the physician.
non-monetary matters, the potential exists for the patient’s treating
physician to serve as an expert for the patient’s opponent. In Torres v. Superior Court 221 Cal. App. 3d 181, the court stated that
a treating physician could act as an expert witness for the defense in a medical
liability issue since confidentiality was waived once the patient put his/her
physical condition at issue. The Torres opinion also stood for the prohibition
of all ex-parte contacts between the
accused physician and his or her attorney or insurer.
Torres and Province v. Center for
Women’s Health and Family Birth 20 Cal. App. 4th 1693, were overruled in Heller
v. NORCAL Mutual Insurance Company 8 Cal. 4th 30, regarding ex-parte
discussions between the physician and the physician’s attorney or insurer.
The Court broadened the rule to allow a non-party treating physician to reveal
medical information to insurance companies so the insurance company could defend
a malpractice suit. This follows the Confidentiality of Medical Information Act,
Civil Code 56.10(c)(4), which allows a health-care provider to disclose medical
information without patient authorization to parties that insure or defend
professional liability. Assembly Bill 1016, just introduced in the California
Assembly, would reverse this and would not allow ex-parte communications
interviews of the patient’s treating physician or psychotherapist without the
Attorneys also must be aware of whether their opposing counsel has
interviewed their expert. This recently occurred in Shadow Traffic Network v. Superior Court, 24 Cal. App. 4th 1067,
where one firm interviewed and rejected an expert as an expert.
The opposing counsel then hired the rejected expert although the expert
informed the new firm that the other side had previously discussed the case with
him. The court disqualified the entire hiring attorney firm since the firm had
gained access to privileged information and attorney work product of the initial
firm after the expert acknowledged to the initial firm that the conversation
would be confidential.
The courts define an expert witness as a person whose special training, knowledge, skill or experience in an area relevant to resolution of a legal dispute goes beyond the average person’s knowledge, and who is allowed to offer an opinion as testimony in court. The court requires this expert opinion in a medical malpractice action to set the standard of care and determine whether that standard has been violated. Expert witnesses’ qualifications once included the rule that they practice in the local area. This has changed. The physician is no longer required to practice within the community, but the expert should have some clinical knowledge of the subject, e.g., another emergency room physician serving as an expert witness against an emergency room physician. James v. St. Elizabeth Community Hospital 30 Cal. App. 4th 73, citing Cal. Health & Safety Code Section 1799.110, Miranda v. National Medical Services Inc. Daily Journal D.A.R. 7813.
The requirements for being an expert witness have changed recently as
well, especially in product liability suits. The time-honored Frye test of
“sound methodology” is no longer the law. The United States Supreme Court in
Daubert v. Merrill Dow Pharmaceuticals
Inc. changed the Federal Rules of Evidence 702 to make judges be
“gatekeepers” who must make sure expert testimony is both relevant and based
on generally accepted scientific knowledge. The Ninth Circuit, which granted a
motion for summary judgment for the pharmaceutical company, recently followed
this in the same case since the plaintiff’s proof failed to meet either the
test of having a scientific basis or the relevancy provision. The plaintiff’s
experts had done no independent research or whether the drug Bendectin causes
birth defects, other than in preparation for the litigation and had not
published any relevant research in any peer-reviewed journals. The second
prong of relevance was also missing, as it did not show a direct causation
between the use of the drug and the harm to the plaintiff.
Several other developments in the expert field are recent. In a recent
decision the U.S. District Court for the Eastern District of Pennsylvania in Caruso
v. Coleman Co. ruled that the amended 1993 Federal Rules of Civil Procedure,
Rule 26(a)(2) specifically gave counsel the right to any material an expert
“considered” in making opinions. This included all drafts and notes relied
upon by the expert in finalizing submitted reports. Since no comments, notes or
mental impressions of the attorney were sought, there was no work product.
Another new twist came in an Illinois medical malpractice case where
the expert had not informed the attorney who hired him about his past
depositions and appearances. On cross-examination, the other side had 120 of his
past depositions on the table and made him look like a “hired gun” expert
witness. This should serve as a reminder to all attorneys to ask their experts
about their past depositions and testimony.
the intention of this article to bridge the schism and lessen the potential
distrust and suspicions that may exist between these two learned professions. If
attorneys who wish to bring physicians as experts for their cause treat
physicians as the attorneys themselves would like to be treated, they would
take a major step toward this goal
In the past five years there have been some changes. An expert witness is expected to testify as to the standard of care and whether or not that standard has been breached. This is an objective standard and not the way the testifying physician would handle the case. If there are two separate ways to handle a problem an the physician has used one way but not the way the expert witness would have used, the physician is still within the standard of practice. The expert may also testify regarding the causation as defined as “something that is a substantial factor in bringing about an injury, damage, loss or harm.” Espinoza v. Little Co. of Mary Hospital 31 Cal. App.4th 1304.
v. Spaulding 52 Cal. App.4th 114 the court stated that a treating
physician may be forced to testify as to his/her opinion concerning
“prognosis, diagnosis, causation of the injuries, duration, or as to the
reasonableness and necessity of the medical bills is percipient testimony acquired from personal
observation rather than from information provided by a party in anticipation of
litigation.” The case goes on to
state “a party cannot impose upon an unwilling expert the obligation of
undertaking an investigation, research and analysis required to form and express
any other expert opinion.” The Plunkett
case also states that “the expert witness fee requirement applies not only to
a retained expert but also to a healthcare professional called by a party to
testify regarding the diagnosis or prognosis made by the practitioner or the
reasons for the practitioner’s treatment decision.”
The jurisdiction will rule as to the type of
information the court will allow the expert to testify.
The Daubert rule is for the federal courts.
The California courts use the “Kelly” test. This test is that the testimony regarding scientific evidence is
reliable, furnished by a properly qualified expert, and based on the use of
proper scientific procedures. (People v. Kelly 17 Cal. 3rd24)
There has been a change in Evidence Code 721 to
allow a broad cross examination of the expert using “publications.” The change allows the use scientific, professional or technical
publications to cross examine an expert if the expert has referred to,
considered or relied on the publication in forming an opinion or the publication
has been established as a reliable authority by the testimony or admission of
the witness or by other expert testimony or by judicial notice, (the judge rules
that the publication is a reliable authority without any expert opinion).
Therefore, experts should not review publications in preparation for
their testimony without the advice of their own attorney or the retaining