Treating physicians must get expert fees for testifying.

Two judges in the Northern District of New York have ruled that a treating physician testifying at a deposition is due a "reasonable" expert fee, regardless of whether the doctor was designated an expert witness. (Lamere v. N.Y. State Office for Aging, No. 1:03-CV-356 TJM/RFT, 2004 WL 1598778 (N.D.N.Y June 29, 2004) ; Lamere v. N. Y. State Office for Aging, No. 03-CV-0356, 2004 WL 1592669 (N.D.N.Y. July 14, 2004).)

The issue arose during discovery in a gender discrimination case brought by Brenda Lamere. Besides making her medical records available, the plaintiff called three of her treating doctors as witnesses; they were deposed by the defense, and each was paid the $40 non-expert-witness fee set forth by 28 U.S.C. [section] 1821.

When the defense wanted Dr. Mary Panzetta to complete her testimony on a subsequent day, however, Panzetta asked to be paid a reasonable fee as an expert. That issue was brought first before Magistrate Judge Randolph Treece and then, on appeal, before U.S. District Judge Thomas McAvoy.

In differentiating between an expert and a lay witness, Treece wrote, "doctors bring extraordinary insight into facts which can only be gleaned through their scientific or specialized knowledge. A lay person, because they lack such scientific training, could not provide the same cogent perspective on facts. Moreover, the opinions that doctors provide are often considered a matter of art that, once again, derive from specialized knowledge. In this respect, there is a true dichotomy between a doctor and lay witness, and thus, in our view, doctors call only be seen as experts, unless they are witnesses observing an occurrence much like, or in a similar nature, as nondoctors would (e.g., a car accident or an incident on the street)."

But in determining what a reasonable expert fee would be for Panzetta, Treece noted that the federal appeals courts had not considered this question and that district courts in the Second Circuit, like other courts around the country, are split in their opinions.

Quoting Matias v. United States (No. 97 CIV. 8957 (NRB), 1999 WL 1022132 (S.D.N.Y Nov 5, 1999)) and Nelco Corp. v. Slater Electric, Inc. (80 F.R.D. 411 (E.D.N.Y. 1978)), he wrote that some courts do not permit treating physicians to testify as expert witnesses because that would be "converting a fact witness into an expert witness 'merely by designation,' and, essentially, would 'cloak a discovery source in a protective veil' which was not contemplated by the discovery rules.

"Under this reasoning," Treece continued, "if a treating physician is conferred the slams of an 'expert,' [the courts] would be creating a problematic slippery slope by entering into the business of bestowing special treatment on witnesses."

Martin Blake, a San Francisco plaintiff lawyer who has tried serious injury cases, said that argument does not mesh with reality. Although a treating-physician witness may be considered "no different from a policeman writing down the notes of an accident and what he found, or the lighthouse keeper recording the time at which the ship passed the point," he said, "that just ignores the reality that a doctor wouldn't have been writing down those facts if she had not been an expert anyway."

And, he noted, at least one state, California, has laws specifying who is considered an expert witness. "Unless you're asking the doctor to recite what his illegible medical handwriting actually says--or, if he can't read his own writing, what he thinks it says--you've got to pay him the [expert] fee, and you can no longer avoid paying [that fee] by saying that this is just a factual deposition as to what you've found," Blake said. "We've gone the way of paying the expert fees for everything except having [doctors] translate the records."

He added that "most responsible practitioners never had an issue with this. But there was always the fringe element, the people who wanted to prove that they are so smart that they can save a few hundred dollars or those who get so adversarial to doctors that they wouldn't pay them the fee."

Treece determined that the party, seeking discovery was responsible for paying a reasonable fee, which the judge determined to be the number of hours spent preparing and testifying, multiplied by the doctor's customary hourly rate.

McAvoy, in affirming Treece's decision, said that even though Lamere did not identify Panzetta as an expert witness, "it is the substance of the testimony that controls whether it is considered expert or lay testimony."

If the treating physician's testimony is "limited to pure observation, an explanation of treatment notes, etc.," McAvoy wrote, "then the physician may properly be characterized as a fact witness and receive nothing more than the statutory witness fee. If, however, testimony is elicited that reasonably may be considered to be opinions based on specialized skill and knowledge that fall within Federal Rule of Evidence 702, then the physician may properly be characterized as an expert witness and is entitled to a reasonable fee for time spent in responding to discovery."