Are Medical Providers Entitled to Reasonable Payment For Their Time Participating in a Deposition?

Many lawyers struggle with the question of whether medical providers (or other professionals) should be paid for their time participating as witnesses in legal proceedings. Typically, the issue arises when a treating medical provider receives a subpoena from a party seeking deposition testimony in a personal injury lawsuit brought by the patient. Lawyers often take the position that such witnesses are “fact witnesses” who are only entitled to a statutory witness fee ($5 plus mileage). However, such a position is not applicable when applied to witnesses who are subject to deposition questions as to their professional opinions.

First, it is helpful to delineate between “fact witnesses” and “expert witnesses.” Fact witnesses are generally individuals who witness an event and can be called to testify as to their personal knowledge, such as what the witness saw and heard.  Expert witnesses are generally individuals who are qualified to offer expert opinions based on their “knowledge, skill, experience, training, or education.” The dilemma discussed herein typically arises when the witness is both a fact witness and an expert witness, such as a physician who treats a patient following a car accident. Such a witness not only has relevant personal knowledge (what injuries the patient suffered), but may also be in a position offer professional opinions (what likely caused the injuries).

Article 1 § 21 of Indiana’s Constitution states “[n]o person’s particular services shall be demanded, without just compensation.” This provision has been interpreted to apply to professional services (including deposition testimony). In Buchman v. State, 59 Ind. 1 (1877), Indiana Courts addressed the constitutional provision above as applied to physicians summoned to provide testimony in legal proceedings. The Court in Buchman stated:

But, if the professional services of a lawyer cannot be required in a civil or criminal case without compensation, how can the professional services of a physician be thus required? Is not his medical knowledge his capital stock? Are his professional services more at the mercy of the public, than the services of a lawyer? When a physician testifies as an expert, by giving his opinion, he is performing a strictly professional service…If physicians or surgeons can be compelled to render professional services, by giving their opinions on the trial of criminal causes, without compensation, then an eminent physician or surgeon may be compelled to go to any part of the State, at any and all times, to render such service, without other compensation than such as he may recover, as ordinary witness fees, from the defendant in the prosecution, depending upon his conviction and ability to pay. This, under the general principles of law and the constitution of the State, he can not be compelled to do. If he knows facts pertinent to the case to be tried, he must attend and testify as any other witness. In respect to facts within his knowledge, his qualifications as a physician or surgeon are entirely unimportant. In respect to facts, as before stated, he stands upon an equality with all other witnesses, and the law, as well as his duty to the public, requires him to attend and testify for such fees as the legislature has provided. Not so, however, in respect to his professional opinions. In giving them, he is performing a ‘particular’ service, which cannot be demanded of him without compensation.

Buchman, 59 Ind. at 13-14 (emphasis added). The Court in Buchman drew a distinction between testimony offered as a fact witness versus testimony sought regarding “professional opinions.” If the witness is only asked about facts, the physician “must attend and testify as any other witness.” However, if the witness is questioned as to his or her professional opinions, the witness is entitled to reasonable compensation beyond a statutory witness fee.

More than 100 years later, the Indiana Court of Appeals examined a similar issue in Riggin v. Rea Riggin & Sons, Inc., 738 N.E.2d 292 (Ind. Ct. App. 2000).

Riggin involved a shareholder derivative action in which the plaintiff sought to depose an accountant for the defendant corporation. The accountant qualified both as a fact witness and an expert witness. The Court clarified:

The party seeking to depose ‘expert’ witnesses who are actors or viewers with respect to transactions or occurrences which are part of the subject matter of the action should bear the burden of showing to the trial court that they will not ask the witness for their expert opinions.

Riggin, 738 N.E.2d at 309 (emphasis added). Under this guidance, the party seeking to a depose a treating medical provider should state upfront whether the deposition will be limited to facts versus professional opinions. If the party seeking the deposition merely wants a recitation of facts from the witness, the witness is obligated to comply with a subpoena and testify truthfully as to facts known by the witness, and is only entitled to a statutory witness fee as compensation. However, if the witness is questioned as to his or her professional opinions, the witness is entitled to receive reasonable costs associated with such deposition (typically payment at a reasonable hourly rate set by similarly qualified professionals).

While the line between fact questions and professional opinion questions may sometimes be muddled, the line is usually clear. Questions that draw upon the “knowledge, skill, experience, training, or education” of a witness are likely seeking the witness’s professional opinion. And, if a qualified expert witness provides professional opinions in response to such questions, he or she is performing a particular service for which they are entitled to reasonable compensation beyond a statutory witness fee.

A professional who receives a subpoena for deposition testimony should seek clarification as to whether the testimony sought will be restricted to fact witness testimony. If the professional is informed in advance that he or she will be asked to provide professional opinions, he or she should negotiate payment for his or her time spent on such legal proceedings beyond the statutory witness fee. If the professional is informed in advance he or she will only be asked to provide fact testimony, but then the professional is asked to provide professional opinions, the professional should again negotiate payment for his or her time spent on the legal proceedings, or consider seeking a protective order.

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Posted May 20, 2024, by Courtney D. Mills