Issues In Working With Medical Witnesses

By: Ron Perey

Washington State Trial Lawyers Association
“Preparing Cases to Win”
Seattle, Washington
November 2000

I. THE PROBLEMS

One of the vexatious problems that plague trial lawyers is dealing with experts, particularly medical experts. The generic term “expert,” according to the American Heritage Dictionary, describes any “person with a high degree of skill or knowledge of a certain subject.” There are, however, “expert persons” who are mere fact witnesses in a particular lawsuit. These individuals are variably called “fact experts,” “occurrence experts,” “actor experts,” “viewer experts” or “non-26(b)(5) experts.”

In contrast, there are “expert witnesses” who are generally specially retained by lawyers for one of the parties to a lawsuit. A party usually retains these experts to help prepare the case for trial. The experts may be asked to independently obtain facts. An example is a physician who has performed a defense medical examination at the defense lawyer’s request. The party may also ask this type of expert to testify at trial.

But many “experts” possess facts or knowledge independent of the lawsuit and are also asked to express opinions at trial, often based on those facts. The best example of this hybrid expert/fact witness, of course, is a physician who has treated the plaintiff for his or her injuries.

The status of a particular expert will determine whether he is a mere fact witness, an expert person, an expert witness, or some combination thereof. The status of an expert in a particular lawsuit will then determine whether the lawyer must pay the expert merely a statutory witness fee or an expert witness fee; whether a party who did not hire the expert can depose the expert; whether the expert’s records or opinions are discoverable; whether the expert needs to be disclosed to the other side; and whether an expert person who is a fact witness must answer expert questions at a deposition or trial.

The test for whether a witness is an expert or fact witness is whether the facts or opinions possessed by the expert were obtained for the specific purpose of preparing for litigation. Peters v. Ballard, 58 Wn. App. 921, 795 P.2d 1158 (1990).

An important issue to be aware of, particularly when dealing with an injured person’s subsequent treating healthcare providers who are part of a health maintenance organization or some other corporate form, is the confidentiality of provider-patient communications. See Loudon v. Mhyre, 110 Wn.2d 675, 667-78, 756 P.2d 138 (1988). Physicians promise to protect this confidentiality when they take the Hippocratic Oath: “Whatever, in connection with my professional practice or not in connection with it, I see or hear, in the life of men, which ought not to be spoken abroad, I will not divulge, as reckoning that all such should be kept secret.”[1]

Nevertheless, in medical malpractice cases, relying on Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984) and Young v. Group Health, 85 Wn.2d 332, 534 P.2d 1349 (1975) (discussed below), lawyers for Group Health Cooperative of Puget Sound and other healthcare organizations consistently claim that plaintiffs’ non-defendant treating providers are corporate “speaking agents” and therefore clients whom they may interview ex parte.[2] A healthcare organization’s risk management department or lawyers, for example, may think nothing of contacting, ex parte, an injured person’s non-defendant treating physicians—who are employees of the healthcare organization and provide care incidental to the injury—to discuss a potential or pending lawsuit. This becomes of particular importance when the healthcare organization attempts to access mental health or family counseling records though that type of care is completely irrelevant to the patient’s claims.

The problems with this type of ex parte contact are as follows: the defense lawyer and risk management may obtain privileged and irrelevant information, which the patient’s lawyer might not have, without the benefit of a transcribed record; the patient’s lawyer will not be present to screen and monitor the information; and the situation is rife with the opportunity for litigation abuse—that is, the defense lawyer or risk management has the unchecked possibility of influencing the non-defendant providers, as discussed below.

To prevent this type of ex parte contact, I strongly suggest that an injured person’s lawyer move early in the case for a protective order. At the very least, the injured person’s lawyer should write a letter to the organization’s lawyers, both inside and outside, and to risk management advising them that so long as your lawsuit is pending, they are instructed to have no communication with the plaintiffs’ non-defendant treating providers or conduct any review of these providers’ records; that these providers and their records are protected by physician-patient privilege; and that this privilege will remain in place unless plaintiffs waive it or the court orders otherwise. See RCW 5.60.060(4). The injured patient’s lawyer should ask the defendants and their lawyers in interrogatories what records they possess, when the defense received or reviewed the records, and under what authority.[3]

In a recent medical malpractice case, Riehl v. Group Health Cooperative,[4] plaintiffs obtained a protective order from Judge Harriett Cody prohibiting Group Health, “its staff and personnel, including but not limited to its administrative, management, and risk management staff and personnel, and its lawyers from communicating orally, in writing, or in any other way with plaintiffs’ heath care and mental health providers, excluding [the defendant physician].” This order is the subject of a separate article the reader can obtain by calling my office.

2. THE AUTHORITIES

a. Treatises

Excellent analyses of the expert witness problem can be found in several volumes of Washington Practice:

  • 14 Lewis H. Orland & Karl B. Tegland, Washington Practice: Trial Practice: Civil § 164, part 4, Expert Witnesses, at 285-89 (5th ed. 1996 & Supp. 2000), , with specific headings including:
    • Experts to be called as witnesses
    • Experts not to be called as witnesses
    • Experts not retained for litigation
    • Experts Informally consulted
    • Expert’s fees.
  • 15A Karl B. Tegland & Douglas J. Ende, Washington Practice: Washington Handbook on Civil Procedure § 30, “Discovery With Respect to Experts” (2000 ed. 1999), with specific headings including:
    • 30.2 Ex parte contacts
    • 30.3 Testifying experts
    • 30.4 Consulting experts
    • 30.5 Fact or “occurrence” experts
    • 30.6 Expert witnesses who are later redesignated as consultants
    • 30.7 Persons who are designated as lay witnesses but give expert opinion
    • 30.8 Expert fees
    • 30.9 Forms
  • 5B Karl B. Tegland, Washington Practice: Evidence § 702.4, “Types of Experts—Expert Witnesses, Fact Experts, Consultants, Experts Employed by Opposing Party, and the Like” (4th ed. 1999).
  • 4 Lewis H. Orland & Karl B. Tegland, Washington Practice: Rules Practice CR 26, at 38-41 (4th ed. 1992) & Supp., at 8-9 (2000).

b. Washington case law

The following legal authorities provide some of the answers to the medical expert problem and other related issues. The cases are listed chronologically in order to show the historical development of the law on these issues. This list does not purport to be exhaustive but represents the most pertinent authorities.

Osborn v. Seattle, 142 Wash. 25, 252 P. 164 (1927). A person who voluntarily submits to a physical examination by a physician at the instance of the adverse party may call the physician as a witness and interrogate him regarding the examination.

State ex rel. Berge v. Superior Court, 154 Wash. 144, 281 P. 335 (en banc 1929). Decided before adoption of the Civil Rules. The first headnote in the Washington Reports summarizes the court’s holding as follows: “In a personal injury case, where plaintiff voluntarily submits to a physical examination by a physician, requested by the defense, the physician may be called by the plaintiff to testify as to the examination and, without payment of a special fee, may be required to state his expert opinion as to the nature and extent of the injury as disclosed by his examination.”

Sneddon v. Edwards, 53 Wn.2d 820, 335 P.2d 587 (en banc 1959). Decided before adoption of the Civil Rules. The court held that one party’s employment of an expert engineer does not prevent the adverse party from calling that expert as a witness to testify at trial.

Lockett v. Goodill, 71 Wn.2d 654, 656, 430 P.2d 589 (1967). The relationship between physician and patient is “a fiduciary one of the highest degree . . . involv[ing] every element of trust, confidence and good faith.”[5]

Agranoff v. Jay, 9 Wn. App. 429, 512 P.2d 1132 (1973). Although criminal law requires an exchange of witness lists before trial, in a civil case “under CR 26(b)(1) one can only discover the identity and locations of persons having knowledge of relevant facts, and not the names of witnesses to be called at trial.

Crenna v. Ford Motor Co., 12 Wn. App. 824, 532 P.2d 290, review denied, 85 Wn.2d 1011 (1975). Former CR 26(b)(4)(B) (now CR 26(b)(5)), which limits the discovery of facts or opinions held by one party’s consulting expert (here, an engineer), also applies to and restricts the adverse party from calling that consulting expert to testify at trial.

Young v. Group Health, 85 Wn.2d 332, 534 P.2d 1349 (1975). Young did not address either the physician-patient privilege or the lawyer-client privilege. The plaintiffs sued Group Health as principal for its agents, Dr. Malan and Dr. Magar, in a medical malpractice action involving negligent delivery of the plaintiffs’ child. Dr. Malan was in charge of Mrs. Young’s initial labor. The Youngs alleged that Dr. Malan was negligent in several ways, including failing to discover the fetus’s abnormal condition, which led to the child becoming a partial quadriplegic; and in failing to obtain the parents’ informed consent for a vaginal delivery. Young, 85 Wn.2d at 334. The court reluctantly concluded that the court should have allowed Dr. Malan’s expert opinion on informed consent as an admission against Group Health’s interest under ER 801(d)(2). Young, 85 Wn.2d at 337-38 (“While we have been hesitant to allow the opinions of agents to serve as admissions in a suit brought against the principal, we feel that under the facts of this case it would have been proper”; emphasis added). In order to admit Dr. Malan’s statements, the court had to find that Dr. Malan was qualified as an expert in the area of his testimony (obstetrics); that he was a speaking agent for Group Health at the time he made the statement; and that the admission was otherwise necessary, reliable, and trustworthy. Young, 85 Wn.2d at 337-38.

Christensen, O’Connor, Garrison & Havelka v. Department of Revenue, 97 Wn.2d 764, 649 P.2d 839 (en banc 1982). Reimbursements to lawyers for litigation costs held to be exempt from business and occupation tax because the lawyer receiving the reimbursement is not, under agency theory, ultimately responsible for those costs.

Mothershead v. Adams, 32 Wn. App. 325, 647 P.2d 525, review denied, 98 Wn.2d 1001 (1982). Former CR 26(b)(4)(B) (now CR 26(b)(5)) precludes taking the deposition of, or compelling testimony at trial by, a consulting defense medical expert who performs an independent medical examination and who is not expected to be called as a witness at trial, absent “exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means” (emphasis added; quoting CR 26(b)(5)(B)). Limitation of holding recognized by Peters v. Ballard, 58 Wn. App. 921, 926, 795 P.2d 1158 (1990) (described below).

Pimentel v. Roundup Co., 32 Wn. App. 647, 649 P.2d 135 (1982), aff’d, 100 Wn.2d 39, 666 P.2d 888 (1983). Generally, a party has a right to protect consulting experts used in trial preparation from being compelled to testify at a deposition or trial. Any right may be waived, however. If a party stipulates that the deposition of a consulting expert may be used for all purposes allowed by the Civil Rules, that party waives the right to prevent the deposition from being admitted at trial.

Walthew, Warner, Keefe, Aaron, Costello & Thompson v. Department of Revenue, 103 Wn.2d 183, 691 P.2d 559 (en banc 1984). Same holding as Christensen, except the court retracted the agency reasoning and held that reimbursements for costs are per se exempt from business and occupation tax. The court suggested that reimbursements might be taxable if a lawyer personally agreed to pay them.

Wright v. Group Health Hospital, 103 Wn.2d 192, 691 P.2d 564 (1984). Adopts test for determining when the employees of a defendant corporate healthcare organization may be speaking agents for the defendant corporation, for purposes of protection under the lawyer-client privilege, which would prohibit ex parte contact between protected employee and plaintiff’s lawyer: whether the employees “have managing authority sufficient to give them the right to speak for, and bind, the corporation.” Wright, 103 Wn.2d at 201. Wright does not address the physician-patient privilege. A healthcare corporation may not prohibit its nonspeaking/managing agent employees from meeting ex parte with plaintiffs’ lawyers.

In re Witteman, 108 Wn.2d 281, 737 P.2d 1268 (en banc 1987). Disputes between a lawyer and an expert witness (a chiropractor) over the expert’s fees “are not properly determinable in attorney discipline proceedings.”

Loudon v. Myrhe, 110 Wn.2d 675, 756 P.2d 138 (en banc 1988). Ex parte contacts between defense counsel and an injured plaintiff’s treating physicians are against public policy. These contacts are limited to the formal discovery methods in the Civil Rules.

Copp v. Breskin, 56 Wn. App. 229, 782 P.2d 1104 (1989). A lawyer is liable for a retained expert’s fee absent an express disclaimer of responsibility.

Peters v. Ballard, 58 Wn. App. 921, 795 P.2d 1158, review denied, 115 Wn.2d 1032 (1990). The court acknowledged that a witness may be an expert as to some matters and an “actor” or “viewer” as to others. “Under CR 26(b)(4) [now CR 26(b)(5)] the distinction between an expert who is testifying as a fact witness and an expert who is testifying as a CR 26(b)(4) expert is whether the facts or opinions possessed by the expert were obtained for the specific purpose of preparing for litigation.” Only an expert whom an opposing party expects to call as an expert witness at trial is entitled to be paid a witness fee by the party taking his deposition, and only opinions specifically acquired and developed in anticipation of litigation are expert opinions. In this medical malpractice case, the court permitted a subsequent treating physician to be called to trial as an ordinary fact witness. The court also permitted the physician to express his opinions regarding the issues in the case. Peters appears to reject the question left open in Pimentel as to whether a party waives the protection of CR 26 by some means other than a stipulation: if defendant allows plaintiff to take defendant’s expert’s deposition even though defendant does not intend to call the expert as a trial witness, defendant does not waive the protections of CR 26 and plaintiff does not gain the right to call the expert as a witness.

Baird v. Larson, 59 Wn. App. 715, 801 P.2d 247 (1990). An expert person, such as an accountant, is not necessarily an expert witness as defined in former CR 26(b)(4) (now CR 26(b)(5)). Professionals who have acquired or developed facts and opinions not in anticipation of litigation but from involvement as an actor in a transaction are not entitled to an expert witness fee.

Paiya v. Durham Construction Co., Inc., 69 Wn. App. 578, 849 P.2d 660 (1993). Treating chiropractor; same result as in Baird. This case created a considerable commotion within the Bar Association Court Rules Committee. 4 Lewis H. Orland & Karl B. Tegland, Washington Practice: Rules Practice CR 26 (4th ed. Supp. 2000, at 8-9); see discussion in Part 4 below.

In re Aqui, 84 Wn. App. 88, 929 P.2d 436 (1996). Treating psychologist had personal, firsthand knowledge of matters in civil commitment proceedings; State was allowed to call the psychologist as a (fact) witness.

In re Firestorm 1991, 129 Wn.2d 130, 916 P.2d 411 (1996). Contacts with an opponent’s experts should normally be limited to formal discovery methods in CR 26, and ex parte contacts are improper. Here, plaintiff’s counsel violated CR 26(b)(5) by interviewing an expert investigator hired by an opposing party’s counsel. But the trial court erred in disqualifying plaintiff’s counsel for violating the rule, because the sanction of disqualification was too severe in these circumstances. Washington State Physicians Insurance Exchange & Ass’n v. Fisons Corp., 122 Wn.2d 299, 858 P.2d 1054 (1993) sets forth guidelines for fashioning appropriate sanctions when a party violates the discovery rules. Case remanded for determination whether further sanctions were warranted.

Kimball v. Otis Elevator Co., 89 Wn. App. 169, 947 P.2d 1275 (1997). Physician who reviewed the plaintiff’s medical records and examined her to evaluate her condition in relation to her Department of Labor and Industries claim was not an expert; defendant could not use the physician’s deposition testimony.

c. Other jurisdictions’ case law

The Washington Court of Appeals cited and followed two interesting District of Columbia cases in Peters v. Ballard, 58 Wn. App. 921, 927, 929-30, 795 P.2d 1158 (1990):

Abbey v. Jackson, 483 A.2d 330 (D.C. 1984). Treating physicians do not have to be expert witnesses to testify as to their opinions.

Adkins v. Morton, 494 A.2d 652 (D.C. App. 1985). Fact experts (here, a subsequent treating physician, an internist) may testify to their opinions whether or not a party has designated them as an expert witness under Rule 26(b)(5). The appellate court reversed the trial court’s exclusion of the internist’s opinion testimony as to why the plaintiff had not received full-time nursing care at home because the exclusion substantially prejudiced the defense’s ability to rebut plaintiff’s evidence that plaintiff required nursing care.

d. Specific Washington statutes, rules, opinions, professional guidelines

Physician‑Patient Privilege, RCW 5.60.060(4):

RCW TITLE 5

EVIDENCE

Chapter 5.60 WITNESSES ‑ COMPETENCY

Section 5.60.060. Who are disqualified – Privileged communications
* * *

(4) Subject to the limitations under RCW 70.96A.140 or 71.05.250, a physician or surgeon or osteopathic physician or surgeon or podiatric physician or surgeon shall not, without the consent of his or her patient, be examined in a civil action as to any information acquired in attending such patient, which was necessary to enable him or her to prescribe or act for the patient, except as follows:

(a) In any judicial proceedings regarding a child’s injury, neglect, or sexual abuse or the cause thereof; and

(b) Ninety days after filing an action for personal injuries or wrongful death, the claimant shall be deemed to waive the physician‑patient privilege. Waiver of the physician‑patient privilege for any one physician or condition constitutes a waiver of the privilege as to all physicians or conditions, subject to such limitations as a court may impose pursuant to court rules.

* * *

Workers’ Compensation Claims, RCW 51.04.050 and 51.36.060. These statutes contain exceptions to the physician-patient privilege in workers’ compensation claims under which physicians may be required to provide records and to testify even if the patient objects. Using these statutes as authority, lawyers representing the patient’s employer or insurer and the Department of Labor & Industries claim to have the right to ex parte conferences with treating physicians despite the mandate of Loudon v. Mhyre.

Washington Civil Rule 26 ‑ General Provisions Governing Discovery.

CR 26(b)(4) Trial Preparation: Materials.

Subject to the provisions of subsection (b)(5) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subsection (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

. . .

CR 26(b)(5) (formerly CR 26(b)(4)) Trial Preparation: Experts.[6]

Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subsection (b) (1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:

(A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, and to state such other information about the expert as may be discoverable under these rules. (ii) A party may, subject to the provisions of this rule and of Rules 30 and 31, depose each person whom any other party expects to call as an expert witness at trial.

(B) A party may discover facts known or unknown or opinions held by an expert who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

(C) Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subsections (b)(5)(A)(ii) and (b)(5)(B) of this rule; and (ii) with respect to discovery obtained under subsection (b)(5)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subsection (b)(5)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

Washington Civil Rule 35 ‑ Physical and Mental Examination of Persons.

RULE 35. PHYSICAL AND MENTAL EXAMINATION OF PERSONS
(a) Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical examination by a physician, or mental examination by a physician or psychologist, or to produce for examination the person in the party’s custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made. The party being examined may have a representative present at the examination but not interfere with or obstruct the examination. Unless otherwise ordered by the court, the party’s representative may make an audiotape recording of the examination, which shall be made in an unobtrusive manner.

(b) Report of Examining Physician or Psychologist.

(1) If requested by the party against whom an order is made under rule 35(a) or the person examined, the party causing the examination to be made shall deliver to the requesting party a copy of a detailed written report of the examining physician or psychologist setting out the examiner’s findings, including results of all tests made, diagnosis and conclusions, together with like reports of all earlier examinations of the same condition, regardless of whether the examining physician or psychologist will be called to testify at trial. After delivery the party causing the examination shall be entitled upon request to receive from the party against whom the order is made a like report of any examination, previously or thereafter made, of the same condition, unless, in the case of a report of examination of a person not a party, the party shows that the party is unable to obtain it. The court on motion may make an order against a party requiring delivery of a report on such terms as are just, and if a physician or psychologist fails or refuses to make a report the court may exclude the examiner’s testimony if offered at the trial.

(2) By requesting and obtaining a report of the examination so ordered or by taking the deposition of the examiner, the party examined waives any privilege he may have in that action or any other involving the same controversy regarding the testimony of every other person who has examined or may thereafter examine him in respect of the same mental or physical condition.

(3) This subsection applies to examinations made by agreement of the parties, unless the agreement expressly provides otherwise. This subsection does not preclude discovery of a report of an examining physician or the taking of a deposition of the physician in accordance with the provisions of any other rule.

Washington Rules of Professional Conduct, RPC 1.8(e). Forbids lawyers from advancing or otherwise paying the costs of litigation unless the client remains ultimately liable for them.

Washington State Bar Association, Ethics Opinion 140 (1969). A lawyer may not agree to pay the expenses of another lawyer, physician, court reporter, or other person on behalf of his client without an agreement by the client to reimburse the advances the lawyer has made. A lawyer may advance expenses of litigation. Where a lawyer has engaged the services of another without making clear to that person that he must look to the client alone for payment, the lawyer ethically must pay that indebtedness and then look to the client for reimbursement and assume the risk of non‑payment.

Washington State Bar Association, Ethics Opinion 180 (1985). “Where no patient privilege exists or where the privilege has been declared waived by Court Order or by the express written consent of the patient, a lawyer may interview a physician in the same manner as any other witness.”

Washington State Medical Association Judicial Council Opinion 56 (1985) and Section 5.05 of the American Medical Association, current opinions of the Council of Ethical and Judicial Affairs (1986). These authorities are identical. The information disclosed to a physician during the course of the relationship between physician and patient is confidential to the greatest possible degree. The patient should feel free to make a full disclosure of information to the physician in order that the physician may most effectively provide needed services. The patient should be able to make this disclosure with the knowledge that the physician will respect the confidential nature of the communication. The physician should not reveal confidential communications or information without the patient’s express consent, unless the law requires the physician to release the communications or information.

Principle IV of the American Medical Association Code of Ethics. “A physician shall respect the rights of patients . . . and shall safeguard patient confidences within the constraints of the law.”

“Interprofessional Handbook: Guidelines for Physicians and Attorneys,” prepared and published by the King County Bar Association and the King County Medical Society Joint Medical-Legal Committee (1999). “Physicians performing professional services in connection with medical-legal matters are entitled to charge the requesting party a reasonable fee for the services rendered.” [Based on the 1995 provision for reasonable fees in CR 26(b)(6), the 1999 edition of the Handbook deleted an exception for physicians subpoenaed solely to testify about facts surrounding the physician’s treatment of a patient; previous editions stated that treating fact witnesses were legally entitled only to the statutory witness fee and travel expenses.]

3. THE MEDICAL‑LEGAL COMMITTEE

The Medical-Legal Committee is a joint committee between the King County Bar Association (KCBA) and the King County Medical Society (KCMS). I was on this Committee for two and one-half years. During my service on the Committee, the members consisted of six lawyers and six physicians. Three of the lawyers represented primarily plaintiffs, and three of the lawyers represented primarily defendants. The Committee met each month to discuss and mediate interprofessional disputes between the legal and medical professions regarding matters arising in King County. All matters were submitted to the Committee voluntarily, and the Committee had no powers of enforcement, only moral suasion.[7]

During the 1989-90 Committee year, when I was chair, the Committee discussed and mediated about fifty separate disputes involving professional fees, expert witness fees, professional courtesy, subpoenas, depositions, trial testimony, copying charges, and many other matters. In addition, the Committee completely revised the Medical-Legal Committee Liaison Pamphlet containing recommended guidelines for lawyers and physicians in the conduct of medical-legal matters. The pamphlet, which has been widely distributed and used in King County, was first created in 1972, revised in 1980, and 1990, and revised again in 1999.

The 1990 version of the pamphlet, “Interprofessional Handbook Guidelines for Physicians and Attorneys,” was produced at KCBA and KCMS’s expense. This pamphlet was distributed to all trial lawyers by the Washington State Trial Lawyers Association and the Washington Defense Lawyers Association. Additionally, the KCBA ordered 2000 copies and distributed them to its members. The KCMS distributed a copy to each of its members. A copy of the 1999 version is attached. Anyone else can obtain a copy by calling KCBA or KCMS and requesting it. The pamphlet reflects a considerable amount of continuing work and negotiation between all members of the Medical-Legal Committee.

4. THE DEFENSE MEDICAL EXAMINATION CONUNDRUM: How much compensation should a physician get?

The question of what compensation or fee must be paid to a physician performing a defense medical examination has been a persistent problem for trial lawyers and physicians alike, and a recurring source of conflict between the two professions. Complaint letters from both lawyers and physicians regarding expert witness fees appear regularly on the Medical‑Legal Committee’s monthly agenda. As the Medical-Legal Committee’s pamphlet advises, fee disputes are the most frequently occurring type of disagreement between physicians and lawyers brought before the Committee.

During my tenure on the Committee, there was very little agreement among members as to how to handle this problem. Washington case law and the Civil Rules give conflicting answers. Generally, these problems are resolved through professional courtesy and comity, rather than by reference to law.

The case law conflicts because the Washington Court of Appeals has decided an issue that the Washington Supreme Court has not yet addressed—whether the Civil Rules supersede early case law on when an expert can be compelled to testify and how much the expert should be paid. In State ex rel. Berge v. Superior Court, 159 Wn.2d 144, 281 P. 335 (en banc 1929), Dr. Berge performed a defense medical examination and was deposed by the plaintiff’s lawyer. During the deposition, Dr. Berge answered questions regarding the facts that he discovered in his examination, but refused to answer questions regarding his opinion as to the nature and extent of the plaintiff’s injuries. The trial court ordered Dr. Berge to answer the questions or be “adjudged in contempt of court.” The Washington Supreme Court reviewed the case law of other states and upheld the trial court’s order:

The question is whether a person who voluntarily submits to an examination by a doctor [a defense medical examiner] at the instance of the adverse party [a defense lawyer] may call the doctor as a witness [at a deposition] and interrogate him, not only as to the facts which he discovered upon the examination, but also as to his opinion as to the nature and extent of the injury without compensation other than the ordinary witness fees. The rule, as supported by the decisive weight of authority as evidenced by the adjudicated cases and the opinions of the text-writers, is that an expert witness is not entitled to demand additional compensation other than the ordinary witness fees, unless special services other than attendance to give testimony on the trial are required in order to enable the witness to testify.

Berge, 154 Wn.2d at 145-46 (emphasis added).

Berge was a 5-4 decision by the Washington Supreme Court sitting en banc. Berge was reaffirmed thirty years later in Sneddon v. Edwards, 53 Wn.2d 820, 335 P.2d 587 (en banc 1959). Sneddon, however, did not involve a physician expert but rather an engineering expert:

Appellants contend that it was error for the trial court to exclude the testimony of one William Enkeboll, an engineer. Mr. Enkeboll was employed by respondents to make an investigation of the [land]slide. According to appellants’ offer of proof, Mr. Enkeboll’s opinion as to the origin of the slide did not correspond to respondents’ theory, so they chose not to call him as a witness. When appellants attempted to have him testify, respondents objected; and the trial judge sustained their objections—apparently on the ground that, since respondents had paid him for making his investigation, they were privileged to keep him from testifying.

The reason given was not adequate for excluding Mr. Enkeboll’s testimony. See Osborn v. Seattle (1927), 142 Wash. 25, 252 Pac. 164; and State ex rel. Berge v. Superior Court (1929), 154 Wash. 144, 281 Pac. 335, in which we held that a doctor could be required to testify as to the facts which he had discovered upon his examination, and to answer questions as to his opinion regarding the nature and extent of injury, even though the doctor in each instance had been hired by the adverse party to make the examination.

Sneddon, 53 Wn.2d at 823.

Berge and Sneddon stood for the proposition that a party can take the deposition of an adverse party’s consulting (fact) expert witness and could compel him to testify at trial under appropriate circumstances. Berge also held that the only compensation a party had to pay a physician who was deposed after performing a defense medical examination was the statutory witness fee, and not the often exorbitant witness fee the physician demands.

But Berge and Sneddon may have been superseded by Civil Rules 26 and 35. The Washington Court of Appeals in Mothershead v. Adams, 32 Wn. App. 325, 647 P.2d 525, review denied, 98 Wn.2d 100 (1982), held that the plaintiff, facing the defense’s objection, could neither depose nor compel to testify at trial a defense medical examiner whom the defendant did not intend to call as a witness at trial. Mothershead, written by the intermediate appellate court, directly conflicts with the Washington Supreme Court decisions in Berge and Sneddon. The Court of Appeals in Mothershead based its decision on the premise that the Washington Supreme Court abandoned its holdings in Berge and Sneddon when it adopted the Civil Rules. Mothershead v. Adams, 32 Wn. App. at 329-30 & n.5 (Berge was decided with reference to a 1915 statute providing that a court could order a plaintiff in a personal injury action to submit to a physical examination; adoption of rule abrogated the statute and civil rules supersede the statutes; CR 35 enlarged the court’s authority to order examination; CR 26(b)(5), which limits the use of “expert” testimony, changed the rule in Sneddon and other cases).

Mothershead, however, did not address what compensation must be paid to a defense medical examiner if he testifies at a deposition or at trial. Under CR 26(b)(5)(C)(i), “the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery . . . .” This rule, however, may apply only to specially retained forensic experts, and not to physicians who examine a plaintiff at the defendant’s request under Civil Rule 35. If CR 26(b)(5)(C)(i) completely supersedes Berge on the compensation issue, a party must pay the medical expert only a “reasonable fee”, and that may not be the often exorbitant fee demanded by the medical expert.

Case law has confirmed that, generally, “fact experts” are not entitled to expert witness fees. Baird v. Larson, 59 Wn. App. 715, 801 P.2d 247 (1990) (an accountant was an actor in the transaction that gave rise to the controversy and thus served as a fact witness, not an expert witness); Paiya v. Durham Construction Co., Inc., 69 Wn. App. 578, 849 P.2d 660 (1993) (treating chiropractor; same result).

Following Paiya, which generated a good deal of disagreement among Bar members, in 1995, the Bar Association Court Rules Committee proposed what is now CR 26(b)(6). This rule requires a party seeking discovery from a “treating health care provider” to pay the provider a “reasonable fee” for his or her time, normally in advance and without the court’s involvement. But “reasonable” is not defined, and the committee did not set forth a list of factors to be considered in setting a fee. Because the rule is narrowly drafted to apply to treating health care providers only, it leaves other types of experts (such as the accountant in Baird) unprotected. The rule provides:

(6) Discovery From Treating Health Care Providers. The party seeking discovery from a treating health care provider shall pay a reasonable fee for the reasonable time spent in responding to the discovery. If no agreement for the amount of the fee is reached in advance, absent an order to the contrary under section (c), the discovery shall occur and the health care provider or any party may later seek an order setting the amount of the fee to be paid by the party who sought the discovery. This subsection shall not apply to the provision of records under RCW 70.02 or any similar statute, nor to discovery authorized under any rules for criminal matters.

Ron Perey
Law Office of Ron Perey
2025 First Avenue, #250
Seattle, Washington 98121
November 2000

Attachment:

“Interprofessional Handbook – Guidelines for Physicians and Attorneys,” Medical-Legal Committee jointly sponsored by King County Medical Society and King County Bar Association, October 12, 1999


[1] In other respects, however, the Hippocratic Oath exhibits an attitude of authoritarianism on the part of the physician towards the patient:

Despite its failure to mention solicitation of patients’ permissions or respecting patients’ decisions, the Corpus does discuss various problems of truthtelling, bluntly advising physicians of the wisdom of “concealing most things from the patient, while you are attending him…turning his attention away from what is being done to him;…revealing nothing of the patient’s future or present condition.” It is usually unclear how many contexts fall under such rules, but the physician is often portrayed as the one who commands and decides, while patients are conceived as persons who must place themselves fully in physicians’ hands and obey commands.

Ruth R. Faden & Tom L. Beauchamp, A History and Theory of Informed Consent, at 62 (1986). The Hippocratic Oath has meant different things to physicians practicing in different times, and based on the above, physicians can use the Hippocratic Oath to justify withholding information for the patient’s own good. In contrast, of course, a physician may interpret the Hippocratic Oath as promoting the candid disclosure and discussion of information to patients.

[2] This article refers to Group Health as the defendant desiring ex parte contact, but the argument I propose for prohibiting ex parte contact applies to any healthcare organization making similar claims or with a similar approach concerning its providers, for example, the University of Washington Medical Center.

[3] An additional issue not addressed here is the extent to which the defendant, its lawyers, and its risk managers have access to the patient’s records. In the process of negotiations in other cases not discussed in this article, it has become apparent that defense counsel and risk management were knowledgeable about issues and information they could only have obtained by direct review of the patient’s privileged medical records. This leads to the conclusion that the defense lawyer and risk management had access to privileged documents they never should have reviewed without the patient’s consent.

[4] King Cy. Super. Ct. No. 99-2-02012-0 KNT.

[5] Cases describing the nature of a fiduciary relationship such as the physician-patient relationship include: Salter v. Heiser, 36 Wn.2d 536, 550-55, 219 P.2d 574 (1950); and Liebergesell v. Evans, 93 Wn.2d 881, 890, 613 P.2d 1170 (1980).

[6] CR 26(b)(4) was redesignated as CR 26(b)(5) in an amendment effective December 28, 1990. Beware that this creates a messy situation when Shepardizing or Keyciting the rule or following the change from older to newer cases.

[7] I assume that the Committee is still structured in this way 10 years later.