The Treating Physician as a Witness
By Judy Regan, MD, JD, MBA, and Eric Miles, JD

Introduction
Practicing physicians should expect to be called on to testify about their treatment of a patient at some point during the course of their practice. Some specialists, such as orthopedic surgeons, will be frequently required to testify about injuries they treated and observed in personal injury and workers compensation cases. Understanding the role a treating doctor plays in the context of civil litigation will ease the anxiety associated with being asked to testify under oath. Essentially, a physician called to testify about his care and treatment of a plaintiff is a sophisticated fact witness and his role in the case is not dissimilar to that of a witness to an accident. The following discussion provides a basic synopsis of the role a treating doctor plays in civil litigation.

Definition of Fact Witness
A non-party physician may be called upon to testify as a fact witness and/or an expert witness. Although all physicians are “expert witnesses” because of their credentials, a legal distinction is made between physicians who testify based solely on facts gained from their actual treatment of a patient (fact witnesses), and physicians who give opinions based upon facts and/or materials furnished to them during the course of litigation (expert witnesses). When a treating physician testifies about both her treatment of the plaintiff and relies on additional information concerning matters beyond her treatment, she is essentially converted into an expert witness. A treating physician who is called upon to testify about his care of the plaintiff has virtually no way of avoiding giving testimony, while a physician asked to review materials and serve as an independent expert witness may simply decline the request. If a physician is called to testify about her evaluation and treatment of a patient or what procedures she performed, she is likely a fact witness.i
A treating physician is generally considered to have no legal duty to give medical opinions that are not based on his personal observations and treatment of the plaintiff. The Tennessee Court of Appeals has ruled that a treating physician, including defendant treating physicians, cannot be forced to give expert opinions about a patient who brings suit. In reaching this conclusion, the court wrote:

In the instant case, we note that Dr. Moore and Dr. Lawrence were not listed as expert witnesses by either party. They were simply party defendants who are experts by nature of their chosen field. Under the facts of the instant case, we do not find that their expertise is subject to compulsion. As a result, we find that the trial court did not err when it refused to compel Dr. Moore and Dr. Lawrence to answer questions outside the realm of their own actions and opinions that they expected to render at trial.

Thus, a physician wishing to limit his role to serving as a fact witness should testify strictly about his care of the plaintiff and should not review materials other than is contained in his own medical chart for the plaintiff. If a physician reviews depositions, records from other providers not already in the chart or other materials and renders opinions, he will likely become an expert witness and his role in the case will be more substantial.

Depositions and Fact Witnesses
In Tennessee, most physicians who are fact witnesses in a civil case may provide their testimony by deposition. Pursuant to Tennessee Code Annotated § 24-9-101, a physician is exempt from a subpoena to testify at the trial of a civil case. Thus, a physician may elect to provide his testimony in a deposition at a time and location convenient to him in lieu of appearing in person at trial. One potential exception to this rule is that a judge may order the physician to appear live at trial, but this rarely occurs.3 Additionally, this statute does not generally apply in federal court, where the physician can be compelled to attend the trial and testify in person. Whether the physician’s testimony is given by deposition or in court, the testimony is under oath. The physician may also be required to produce and release medical records at the deposition. These records can include office notes, laboratory values, x-rays and ECGs. The time and place of the deposition is normally fixed by agreement and usually taken at the physician’s office. Because of conditions in a particular case, the attorney may find it necessary to subpoena the physician as a witness. Production of medical records may also be required by subpoena served on the physician. The subpoena requires the physician served to attend the deposition at the time and place stated in the subpoena and produce the specified records. If the time and place described for the deposition creates a hardship, the physician should immediately notify the parties.

A potential source of conflict between physicians and attorneys is compensation for the physician’s time spent providing testimony. While these instances may be rare, they occur often enough to arouse concern. In order to attempt to avoid this problem, the physician’s charges and the responsibility for payment should be discussed and agreed to by the physician and the attorney before the deposition. Generally, fact witnesses cannot charge expert witness fees and may receive only the statutory witness fees for testifying, which vary but are lower than expert fees. However, most attorneys will exercise professional courtesy and pay a treating physician witness a reasonable fee for his time. For example, the Tennessee Bar Association and the Tennessee Medical Association have collaborated on a Code of Cooperation that provides that physicians should be compensated for their time. In this instance, compensation rests principally on contract or is determined by custom and past practice. It is advisable that physicians establish a standard rate for providing deposition testimony and base the rate on what they would earn if they were treating patients instead of giving a deposition. Regardless, if there is any question as to the charge, it should be discussed and worked out before the deposition.

Conclusion
A treating physician called upon to testify about his treatment of a plaintiff should consider the role he wants to play in the case before agreeing to review any materials other than his own chart. Additionally, if the physician wishes to charge for his time, he should work this out with counsel prior to the deposition. Finally, all treating physicians should be aware they are statutorily exempt from subpoena to testify at trial and can require the parties to conduct their deposition instead of appearing at trial.

References:
1. Tennessee Medical Association: Depositions. TMA Law Guide. Available at http://www.tnmed.org.
2. Lewis v. Brooks, 66 S.W. 3d 883,888 (Tenn. Ct. App 2001).
3. It should be noted that independent expert witnesses are privately hired by either the plaintiff or defendant and, in exchange for compensation, will be expected to appear at trial on behalf of the party that retains them. Thus, a physician who agrees to serve as an independent expert witness should expect to be asked to appear at trial unless an alternate agreement has been reached with the hiring attorney.
4. Tennessee Bar Association. Code of Cooperation Between The Tennessee Bar Association And The Tennessee Medical Association. Available at http://www.tba.org.