Are Treating Physicians Entitled to An Expert Fee for Fact Witness Depositions?

 Treating physicians are often critical fact witnesses in litigation.  They are sometimes expert witnesses.   Physicians are busy and have unique skills so it is not unusual for them to ask for and expect expert witness fees even when testifying as a fact witness.   The fees requested can be substantial. Additionally, many physicians tack on mandatory minimum fees and mandatory "pre-deposition conferences" 

The case law is clear, however, that attorneys are not obligated to pay treating physicians "expert witness fees" for offering fact witness testimony.  When deposed as a fact witness, a physician stands in the same position as any other fact witness. They are entitled to mileage and the standard witness fee.

"While physicians certainly have significant overhead costs and a special expertise, so do a myriad of other professions. For instance, should fact witnesses who happen to be engineers, attorneys, accountants or consultants — professions also with special expertise and significant overhead costs —similarly be allowed more than the statutory fee prescribed by § 1821? If the answer is in the affirmative, then does § 1821 merely apply to less prestigious professions? Who decides what professions fall under § 1821 versus the more lucrative "reasonable fee" under [Federal Rule of Civil Procedure] 26(b)(4)(C)? This Court declines to set precedent in this jurisdiction that, essentially, singles out physicians  [**8]   [*132]  for special treatment. Rather, the more prudent course of action is to follow the unambiguous tenets of [Federal Rule of Civil Procedure] 26(b)(4)(C)  [***21] and § 1821, which provide that expert witnesses — independent of their profession — obtain compensation at a "reasonable fee", while fact witnesses —independent of their profession — receive compensation at the statutory fee of $40. If Congress wishes to single out certain professions for higher compensation, that is certainly its prerogative, but this Court declines to enter that arena, which is, essentially, a slippery slope.

Demar v. United States, 199 F.R.D. 617, 619-20 (N.D. Ill. 2001); see also McDermott, 247 F.R.D. at 61 (there is no "logical explanation as to why [a special] . . . rule applies to physicians and no other class of professional or otherwise with 'specialized knowledge' about the testimony to be provided"); Mangla, 168 F.R.D. at 140 (physicians will "suffer no more inconvenience than many other citizens called forward to be deposed or testify as a trial witness in a matter in which they have first hand factual knowledge");

While there are a handful of cases that treat physician fact witnesses as different those cases simply treat physicians as "special" and often justify the distinction on amorphous "public policy" grounds. 

 None of these cases, however, provide any logical explanation as to why physicians and no other class of professional or laborer with "specialized knowledge" should be awarded   a "reasonable fee."  

See, e.g., Wirtz v. Kan. Farm Bureau Servs., Inc., 355 F. Supp.2d 1190, 1211 (D. Kan. 2005) ("[A]  [***14] treating physician responding to discovery requests and testifying at trial is entitled to his or her 'reasonable fee' because such physician's testimony will necessarily involve scientific knowledge and observations that do not inform the testimony of a simple 'fact' or 'occurrence' witness."); Mock v. Johnson, 218 F.R.D. 680, 683 (D. Haw. 2003) ("As opposed to the observations that ordinary fact witnesses provide, the observations and opinions that medical professionals provide derive from their highly specialized training."); Grant v. Otis Elevator Co.,199 F.R.D. 673, 676 (N.D. Okla. 2001) ("[T]reating physicians who testify under Fed. R. Evid. 702 as to their diagnoses, treatment and prognoses are experts within the meaning of [Fed. R. Civ. P.] 26(b)(4)(C) and are entitled to a reasonable fee."); Coleman v. Dydula, 190 F.R.D. 320, 323 (W.D. N.Y. 1999) ("Physicians provide invaluable services to the public and should be remunerated for their time when they cannot deliver medical care." (citation omitted)).

 In sum, an attorney is not obligated to pay a physician fact witness an expert witness fee, only a witness fee.  With that said, an attorney may be wise to provide something more than the nominal fee to insure the cooperation of the attorney.