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It varies widely. Some are happy to be involved. Some want nothing to do with you. I offer to pay them for their time as I would any other expert but avoid formally retaining them.
I’m on the defense side. If you do not disclose them as an expert and comply with the rules (disclose CV, Testimony, Fees) in my jurisdiction, then they are limited. A treating doc is a medical fact witness not an expert. This limits what they can testify about, only actual treatment provided. Maybe a limited opinion on prognosis. Certainly not future treatment or permanent issues.
Would that be your only witness? I mean they have a stake in the outcome so if I were on a jury, I'm not sure how well I'd receive their testimony. Yes, I know experts are paid, but for some reason I feel an impartial review, even though it is paid for, would give more weight.
Yes. Some will provide free reports, but if they're prepping and testifying for you, pay them something for that time
I’m on the defense side. Even if it’s not unusual to qualify your fact witness, I struggle to see the point in paying them.
It’s probably auto or premises liability? And you want them to testify whether some treatment was caused by the accident?
They’re open to cross on whether they’re getting paid. Even if somehow a collateral source rule bars questions on whether they’ve been paid for the treatment, the issue is hanging in front of the jury. You can probably ask them for free whether the accident caused the need for the treatment.
You don’t pay for their testimony. You pay for their time. Treaters charge just like outside retained experts do.
My ex has an expert witness business (COPD/Pulmonary doctor) and he certainly charges hourly.
Rising Star
Expert witnesses are usually disinterested. This is about the treating physician.
You probably would because you're taking them away from their jobs.
I don’t pay other third party fact witnesses for their time. I just serve them subpoenas and expect them to show up for court. Why are doctors special? Now, if you want to designate the doctor as a retained expert, that’s a different story.
Doctors are the worst witnesses. I know I’m coming from the criminal side but they never respond and you have to directly threaten them with contempt to get them to show up. We’ve had to get the hospital corporate counsel involved and actually say “you can come to court on your own or in the back of a cop car.”
But, yes if you’re pulling them away from their practice for hours at a time for prep or testimony, you should pay them for their time. My state also has a statute that requires experts to be paid for their time. Maybe your physician is an angel and will turn it down but you should plan to pay them an hourly rate.
I’d want an expert but I’d want a neutral one to review what the actual treating doctor did
This won’t shock you: a lot of people who go into medicine don’t have altruistic motivations. Getting a lot of patients referred to you by personal injury lawyers ensures a steady volume of clientele, albeit with a longer payment timeframe.Bonus points if the personal injury lawyers can convince the plaintiff to donate their body for the cause and undergo unnecessary surgeries to increase the potential value of the case.
Some states have procedural mechanisms that allow personal injury plaintiffs to prove up past medical treatment and expenses via affidavit. The treating doctor is “designated” as a non-retained expert but is unlikely to be deposed or called to testify.
You work at a defense firm. Ask the old heads how the sausage gets made.
Get a neutral expert or experts to review Plaintiff’s medical records and bills. They can then opine on causation, necessity of care, and reasonableness of cost. That said, if the treating provider is an established doctor with the Plaintiff and has been treating them long before the subject incident, they can make a good causation witness because they are familiar with the plaintiff's health and any potential pre-existing conditions.