Should a treating physician who is subpoenaed for deposition be compensated at expert witness rates? The Arizona Court of Appeals recently answered this question in Sanchez v. Gama, 233 Ariz. 125, 310 P.2d 1 (App. 2013). The Court held that a treating physician should not be compensated as an expert in a civil lawsuit when he or she is testifying only to the injury, medical treatment, and other first-hand knowledge not obtained for purposes of litigation. However, where expert testimony is sought and is developed for purposes of litigation, the doctors should be compensated at their reasonable rates. This is true even if the source of the expert’s underlying information is from personal observation or the observations of others.
In reaching this decision, the Court followed the general rule that fact witnesses are not paid for giving testimony. The Court saw no reason why physicians should be given preferential treatment over other professions that also require significant overhead costs and a special expertise. For example, if doctors are allowed to charge expert fees when testifying as a fact witness, then should engineers, attorneys, accountants or consultants also be allowed to do so? The Court noted that requiring parties to pay for the testimony of all treating physicians that are essential to the case but who only testify to the facts would increase the cost of litigation, and in some cases would limit access to the legal system to those most affluent. However, the Court made clear that its decision does not entitle parties to abuse physicians by compelling them to give free expert testimony.
This recent decision begs a new question: What if the treating physician’s treatment agreement requires payment for all legal related appearances, regardless of whether expert opinions are sought? Some healthcare professionals have started including such a provision in their treatment agreements. Courts have not yet ruled on this issue. On the one hand, professionals will argue that the patient or client is bound by the plain terms of the contract. On the other hand, litigants may argue that such a contractual provision is illegal and unenforceable, because it violates well-established public policy.