Should a treating physician who is subpoenaed to testify about a patient’s diagnosis, treatment ‎and prognosis at a deposition or trial in a civil lawsuit be compensated for his or her time testifying, or ‎should they be paid the nominal statutory witness just like any other fact witness?‎

Courts across the country have been evenly divided on this issue. Some courts have held that ‎treating physicians should be considered fact witnesses when testifying about their sensory observations ‎and information acquired independent of the litigation, and therefore not be compensated for their time. ‎Other courts have held that the treating physician’s specialized training and knowledge necessarily ‎justifies a reasonable fee for all testimony.

Up until recently, Arizona civil law was unsettled on this issue.‎

In a 2011 criminal case, the Arizona Court of Appeals held that treating physicians were not ‎entitled to expert witness compensation for their testimony regarding a patient’s diagnosis and injuries. ‎State ex rel. Montgomery v. Whitten, 228 Ariz. 17, 262 P.3d 238 (App. 2011).

And very recently, the Arizona Court of Appeals extended this reasoning to civil cases, holding ‎that a treating physician need not be compensated as an expert in a civil lawsuit if he or she testifies only ‎to the injury, medical treatment or other first-hand knowledge obtained independent of the litigation. ‎Sanchez v. Gama, --- P.3d ---- (Ariz. App. Aug. 20, 2013) (as amended Sept. 4, 2013).

State ex rel. Montgomery v. Whitten

The Arizona Court of Appeals first addressed the issue of treating physicians’ entitlement to ‎expert witness compensation in a criminal case: State ex rel. Montgomery v. Whitten, 228 Ariz. 17, 262 ‎P.3d 238 (App. 2011). In Whitten, the court considered whether physicians who had treated a child ‎admitted to the hospital for fatal injuries were entitled to compensation as experts if called as trial ‎witnesses in a later murder case. When the State sought to call six physicians who had treated an infant ‎with massive brain injuries and skull fractures, the physicians demanded to be paid as experts for their ‎testimony. The trial court ordered the State to compensate the physicians as experts, and the State ‎sought interlocutory review (called a special action in Arizona) for relief from this ruling. The Court of ‎Appeals accepted jurisdiction and rejected the “overly broad” position that treating physicians must be ‎compensated as experts “when any part of their testimony requires specialized knowledge obtained ‎through professional education or work experience.” While noting that it was not possible to create a ‎bright-line rule for determining when a treating physician crossed over from fact witness to expert ‎witness, the court articulated guidelines for trial courts to make this determination. Typical areas of fact ‎witness testimony include: (1) diagnoses and reasons for diagnoses; (2) the “who, what, when, where ‎and why” regarding patient encounters and medical records; and (3) sensory information regarding what ‎the physician observed. Conversely, the following areas are generally the subject of expert witness ‎testimony: (1) consideration of records of another healthcare provider; (2) opinions on the standard of ‎care; (3) discussion of medical research or literature; (4) hypothetical questions; and (5) issues of ‎causation, unless the physician drew such conclusions treating the plaintiff.

The Whitten court stated its decision should not be read to affect disclosure obligations or ‎compensation issues in civil cases. Thus whether these guidelines would apply to treating physicians in ‎civil litigation remained an open issue. In Sanchez v. Gama, the Arizona Court of Appeals answered this ‎question.

Sanchez v. Gama

Sanchez was a personal injury case arising out of a car accident. The injured plaintiff identified ‎her chiropractor as both a fact witness to testify about the medical records and as an expert witness to ‎testify regarding her injuries and anticipated medical treatment. The defendant subpoenaed the treating ‎chiropractor for a deposition, but did not agree to provide compensation for his time in the deposition. ‎The chiropractor retained counsel and moved to quash the subpoena. Alternatively, the chiropractor ‎requested a protective order limiting the defense counsel’s inquiries to specific issues and requiring him ‎to pay expert fees in advance. The trial court granted the motion and found that the treating ‎chiropractor was an expert under the Arizona Rules of Civil Procedure. Following the deposition, the ‎chiropractor sought to recover expert fees from the defendant for his time. An arbitrator considered the ‎fee dispute and ruled that the chiropractor was entitled to $300 an hour for his testimony.

The defendant sought special action relief from these rulings. The Court of Appeals accepted ‎jurisdiction to consider the narrow question of “whether a treating physician’s testimony concerning the ‎patient’s diagnosis, treatment and prognosis is ‘expert testimony’ within the meaning of our rules simply ‎because it necessarily draws upon his or her skill, training, and experience as a doctor.”

After noting the split in authority on this issue, the Sanchez court was more persuaded by courts ‎finding that treating physicians are not considered experts when they testify about observations and ‎opinions based on treating the plaintiff. The court rejected contrary authority because it found no logical ‎explanation as to why physicians differed from other classes of professionals with “specialized ‎knowledge,” to warrant compensation for all physician testimony. As a matter of public policy, the court ‎found it was not appropriate to carve out a physician exception to the general rule that fact witnesses are ‎not paid for their testimony, observing that “[c]ourts should not create a special class of fact witnesses ‎who are entitled to expert witness fees while excluding others.” ‎

The court held that the test for whether a treating physician is a fact or expert witness “is not the ‎label given by the disclosing attorney, but the substance of the disclosure under Arizona Rule of Civil ‎Procedure 26.1.” Whether a treating physician is a fact or expert witness depends on the content of the ‎physician’s testimony. According to the court, “When a treating doctor is testifying only to the injury, ‎medical treatment, and other first-hand knowledge not obtained for purposes of litigation, the treating ‎doctor is a fact witness and need not be compensated as an expert.” On the other hand, “where expert ‎testimony is solicited, whether the source of the expert’s underlying information is from personal ‎observation or the observations of others, but the testimony is developed for purposes of litigation, the ‎doctors must be compensated accordingly.” ‎

The Sanchez court noted that this necessarily is a fact-specific determination depending on the ‎questions asked of the physician, and that trial courts will be required to determine when expert ‎testimony is being solicited, so as to require reasonable compensation. Turning to the case before it, the ‎Sanchez court found the treating chiropractor’s testimony was almost entirely factual, based on his ‎personal observations, and thus he was not entitled to expert witness compensation. ‎

The Practical Effect of Sanchez

The Sanchez decision has already caused reverberations. In response to Sanchez, the Arizona ‎Trial Lawyers’ Association filed a rule change petition, seeking expedited relief and requesting that the ‎Arizona Supreme Court modify Arizona Rule of Civil Procedure 26(b)(4)(C) to provide that treating ‎medical providers are entitled to reasonable compensation for their testimony. The Arizona Supreme ‎Court denied ATLA’s request for expedited consideration and opened the rule change petition for ‎public comments. ‎

In the meantime, Sanchez is Arizona law on the issue. It will prevent treating physicians from ‎charging expert witness fees (sometimes quite exorbitant) for deposition or trial testimony relating to the ‎injury, medical treatment, and other first-hand knowledge not obtained for purposes of litigation. But ‎where the physician’s testimony goes beyond this, he or she may be entitled to compensation. This is ‎easier to state than it will be to apply. There may be situations where a treating physician’s testimony ‎will touch on subjects that are both fact witness and expert witness testimony, and thus, the physician ‎may be entitled to compensation for part of his or her time.

The Sanchez decision does not address the rates that physicians may charge for the portion of ‎their testimony that is considered expert or opinion testimony.