When you represent a medical provider in an auto no-fault case, the line between party and expert can easily become blurry. When your doctors go under oath, are they testifying to facts, or opinions? If they are used as experts are they entitled to expert witness fees? A recent published Michigan Court of Appeals case says no.
Every medical provider client is an expert in his or her field. From emergency room doctors to occupational therapists, these clients are highly trained to render services to the victims of auto accidents. And they deserve to get paid for their work. But to get there, your doctor clients will likely have to take the stand – whether in court or at a deposition. When they do, the roles of party and expert blur in sometimes confusing ways.
Dr. Louis Radden is a neurosurgeon and owner of Spine Specialists of Michigan, PC. He provided treatment to Alonzo Garvin after the patient suffered injuries in a motor vehicle accident. When Garvin’s auto insurance provider, State Farm Mutual Automobile Insurance Company, denied Spine Specialists’ claim for no-fault benefits, the matter went to court.
As part of the discovery process, State Farm sought to depose Dr. Radden. The doctor refused to testify unless State Farm paid him $5,000 in expert witness fees. State Farm objected, saying Dr. Radden was a party, not an expert. The matter went before the circuit court judge, who lowered the fee to $1,000 for the first 90 minutes and another $250 for each 15 minutes after. The circuit court judge took a pragmatic approach to the question:
“[T]he doctor in these no-fault cases, will take the position eventually, why even treat a person who’s involved in an accident if I’m going to tie up a full day every time I submit a Record for payment to a carrier. Eventually, Doctors may be reluctant to treat auto accident claimants for this very reason.”
But the Court of Appeals disagreed. In a recent published opinion, Spine Specialists of Michigan PC v State Farm Mut Auto Ins Co, the court said that as “an employee of the plaintiff [Dr. Radden] is not entitled to a fee for testifying on its behalf.”
Michigan Court Rules on Expert Witness Fees
MCR 2.302(B)(4) sets the rules for pretrial depositions of witnesses:
“Discovery of facts known and opinions held by experts otherwise discoverable under the provisions of subrule (B)(1) and acquired or developed in anticipation of litigation or for trial may be obtained. . . . [by] tak[ing] the deposition of a person whom the other party expects to call as an expert witness at trial.”
The court rule continues:
“[T]he court shall require that the party seeking discovery under subrules (B)(4)(a)(ii) or (iii) or (B)(4)(b) pay the expert a reasonable fee for time spent in a deposition, but not including preparation time.”
Who Counts as an Expert?
The question for the court, then, was whether Dr. Radden could be considered an expert. The court quoted a Missouri decision that “The normal use of that term applies to a witness retained by a party in relation to litigation.” The court said:
“While a party (or an employee of a party, as here) with specialized knowledge may offer an expert opinion within his or her field, the court rules do not contemplate payment to a party offering an opinion on its own behalf.”
Experts, the court said, were third parties to the litigation who can examine the facts from a distance and offer opinions without a financial stake in the outcome. Because Dr. Radden owns Spine Specialists, he did not have that detached relationship with the case, and didn’t count as an expert.
Threatening Treating Physicians’ Fees
But the Court of Appeals decision went further. It said:
“Dr. Radden ‘acquired facts’ about Garvin during his treatment of the patient rather than in anticipation of litigation or for trial.”
Because this information came in the course of treatment rather than in anticipation of litigation, the court said it was not the basis of an expert opinion, and did not entitled Dr. Radden to expert witness fees.
This section of the opinion could be dangerous to treating physicians and other medical professionals across the spectrum of civil litigation. In cases ranging from slip-and-fall to electrocution, to no-fault auto accidents, treating professionals’ testimony is key. Doctors are able to combine their factual knowledge of the patient and their expert training to establishing the extent of a plaintiff’s injuries, and the causal connection between the injury and the negligent event. By distinguishing between facts acquired during treatment and in preparation for litigation, the court may have laid the foundation for eliminating treating physicians’ expert witness fees.
If insurance providers are able to take this language to its natural conclusion, the trial court’s concerns could easily come to pass. When every accident victim who steps into a doctor’s office could cost him or her hours of unpaid testimony, it could become a business decision to turn those people away.
David Christensen is a medical provider attorney at Christensen Law in Southfield, Michigan. If your medical provider clients are trying to collect their unpaid no-fault benefits, contact Christensen Law for a referral today.