Rebuilding Relationships with Physician Expert Witnesses

Published in The Contra Costa Lawyer  October, 1995

An update 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.

The 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.

Some 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.4^th 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 license.

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.

California 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.

This 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.

An 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).

In Huntley 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.

The 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.

A 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

Any 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.

In 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 patient’s consent.

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.

It is 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

UPDATE

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.4^th 1304.

In a malpractice case against a physician providing emergency care in an acute care hospital emergency department, the expert must be someone that has “substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.” (Health and Safety Code 1799.110)

In Plunkett v. Spaulding 52 Cal. App.4^th 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. 3^rd24)