Recently, I reviewed a Federal case that was posted on the Nevada Justice Association list-serve. This 9th Circuit case interpreted Arizona law regarding the testimony of treating physicians. This decision answers the question: When does a treating physician’s testimony morph him into an witnesses hired to render expert opinions? If a treating physician renders opinions that go beyond the usual scope of a treating doctor’s testimony, the proponent of the testimony must comply with FRCP 26 (a) (2), which requires a full-fledged expert report stating opinions and the bases for those opinions.
A treating physician is not considered an expert to render expert opinions when his testimony is confined his examination, diagnosis and prognosis of the patient. That testimony is not considered specially retained expert opinion. But, once the lawyer for the claimant undertakes to elicit an opinion from the physician concerning whether or not a particular traumatic event caused the condition, as opposed to another cause, the physician has been transformed into the type of expert envisioned by the report requirement of FRCP 26.
Treating physicians are often confused about the difference between their role as a treating physician and their role as an expert witness.
When are physicians allowed to testify?
An expert witness is one retained to provide expert testimony in a case. Generally, the treating physicians are excused from the requirement of this procedural rule requiring a party to timely disclose an exert witness. A treating doctor may be provided with additional documentation by plaintiff’s counsel. He may be asked to opine on matters outside the scope of treatment that he provided. This may involve rendering opinions on the medical care rendered by other physicians.
Physicians are allowed to testify to opinions they formed in the course of caring for the patient. As soon as the treating physician reviews bills and records outside of what is normally in their file, they become a hybrid expert.
The 7th circuit recently held that a treating physician, who is offered to provide expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in he course of providing treatment, is required to submit an expert report under FRCP 26(a) (2). The 8th Circuit requires the disclosure of a written report at any time a party seeks to have a treating physician testify concerning the causation of a medial condition, as opposed to merely the existence of a medical condition.
Therefore, it appears that a treating physicians are only exempt from the written report requirement when their opinions are confined to their course of treatment of the patient.
The Nevada Rules of Civil Procedure provide for expert disclosure dates deadlines for the exchange of initial expert disclosures. Rebuttal disclosures are usually due 30 days after the initial expert disclosure deadline. Failure to meet these deadlines can be fatal to personal injury case.
So, the treating physician should always assume that his written report will be required in any normal litigation case. Normal litigation involves those cases that are exempted from arbitration program, and involve damages in excess of $50,000.00.
Court Annexed Arbitration
In Nevada, in cases where damages have a value of $50,000.00 or under, go first go into the mandatory Court Annexed Arbitration program. If either side appeals, (assuming no exemption), the case then automatically goes into the short trial program (one day trial). Although a report may not be essential in an arbitration or short trial case, a report can be entered as evidence in the arbitration/short trial, and the physician does not need to testify.
If the case involves emergent care, chiropractic treatment or physical therapy, diagnostic testing and treatment by a M.D. or a D.O., then the M.D. or the D.O. in heir discharge report should comment on causation, the medical necessity of treatment of all of the patient’s providers, as well as and the reasonable and customary nature of the charges of all providers.
NRCP 16.1 requires the expert report to contain a complete statement of all opinions of the expert, the basis and reasons for his opinions, the data or other information considered by the expert in forming his opinions, any exhibits or information that he reviewed to support his opinions, the qualifications of the expert, including a list of all publications authored by the expert within the preceding 10 years, the compensation to be paid for his review and testimony, and a list of other cases in which the witness testified as an expert at trial or by deposition, within the preceding four years.
Therefore, a treating physician’s perfect discharge report should cover the physician’s opinions concerning the causation of the patient’s injury (stated to a reasonable degree of medical probability), the medical necessity of the patient’s treatment and the reasonable and customary nature of the charges for all of the patient’s medical treatment. All physicians that are involved with treating personal injury victims should have a current CV, testimony list, and fee schedule prepared for use in litigation cases.
Therefore, in most personal injury cases involving litigation, the treating physician will be considered to be at least a hybrid expert. Treating physicians should look at the format for their narrative and discharge reports to see if it meets all of the requirements of an expert report as stated in this blog.
