From product liability to medical malpractice claims, medical expert testimony is necessary to establish causation and oftentimes, can become the crux of the case. However, these are not the only doctors that will likely need to testify at trial. A plaintiff’s own treating physician may also be a necessary witness, as the physician can attest to the plaintiff’s medical conditions and treatments.
On the surface, the plaintiff’s physician may not seem all that different from the experts specifically retained to testify at trial, as both doctors have likely examined the plaintiff and reviewed all the pertinent medical records. But from a legal perspective, the two witnesses greatly differ. For trial purposes, it is important to distinguish between these two types of physicians, as the label given to each can affect trial procedure and by extension, even the outcome of the case.
When is a Treating Physician Considered an Expert Witness?
There is a fine line between a retained expert and a non-retained treating physician. Typically, treating physicians are considered fact witnesses (opposed to expert witnesses) because they are testifying to the facts and circumstances surrounding their own treatment of the plaintiff, and unlike witnesses designated as experts, they are not rendering a medical opinion as to causation or reviewing material outside of their own medical records. A physician that is a true fact witness will only testify to his own personal observations when diagnosing, examining, and treating the plaintiff.
Likewise, the physician will only testify to procedures he personally conducted and will only rely on notes and reports that he personally created in the ordinary course of his duties as a doctor. The physician will not testify to anything he did not personally witness. As a fact witness, the physician will not give any medical opinions that are not based on his own treatment of the plaintiff. For example, a physician can read blood test results into evidence and state whether certain levels are elevated, normal, or low. The physician cannot, however, opine as to why the levels are what they are. Such testimony would be leaning toward that of an expert.
Once a physician’s testimony borders that of a retained expert, then the evidentiary standards regarding the admissibility of expert testimony will apply. For example, if a treating physician veers away from factual testimony concerning the plaintiff’s treatment and offers a scientific opinion on causation, that testimony can be excluded if the court finds the physician does not meet the scientific reliability standards set forth in Daubert or Frye (depending on the controlling case law of the jurisdiction). The nature of the testimony itself, opposed to the label first given to the witness, is what dictates which evidentiary standard will be used. This approach prevents fact witnesses from testifying to matters that otherwise would be inadmissible or be held to a higher standard of admissibility if admitted through an expert witness. Overall, many federal courts have rejected attempts to disguise treating physicians as lay witnesses.
What are the Disclosure Rules?
One of the biggest issues surrounding the categorization of a physician as an expert or fact witness is which rules of disclosure to apply. Under Rule 26(a)(2)(A) of the Federal Rules of Civil Procedure, all parties must disclose the identity of any expert witnesses it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705 [the rules governing expert testimony]. Further, under Rule 26 (a)(2)(B), “if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony,” the expert must provide a written report. The report is quite exhaustive, as it provides opposing counsel with a comprehensive summary and basis of the expert’s opinion.
Pursuant to the Rule, the report must contain a statement of the expert’s opinion and the basis and reasons for them; the facts or data the witness relied upon; any exhibits that will be used; the witness’s qualifications (including a list of all publications authored in the past ten years); a list of cases for which the expert testified in the past four years; and the expert’s compensation.
In contrast, witnesses who do not fall under Rule 26(a)(2)(B) as “retained or specially employed to provide expert testimony,” but are still expected to present evidence under Federal Rule of Evidence 702, 703, or 705, need not provide a written report. Rather in these instances, under Rule 26(a)(2)(C), only the subject matter and a summary of facts and opinions to which such an witness is expected to testify need be disclosed. Non-retained treating physicians fall under this category.
Essentially, this Rule allows treating physicians to present evidence under the Federal Rules of Evidence governing scientific expert testimony but exempt them from the written report requirement because they are not “retained or specially employed to provide expert testimony.” Courts have agreed to this interpretation of the Rule as long as the physician will testify solely as a percipient witness, i.e., a person who was a direct participant in the events of the case.
While some courts disagree, the majority of courts even allow treating physicians to testify to causation, prognosis, and the permanency and degree of injury without a written report so long as those opinions were reached during the course of treatment. Other courts hold that a treating physician must prepare a written report if the physician reviews materials that were not reviewed during the course of treatment, as this goes beyond the scope and “morphs” the witness into a retained expert.
Treating Physicians: Things to Keep in Mind
Whether a physician’s testimony is that of a fact witness or an expert may not always be clear-cut. To make matters further complicated, courts have not always been consistent and there is no general consensus as to how to apply disclosure rules for “gray area” witnesses. That is not to say that a treating physician cannot or should not offer a medical opinion outside the scope of his personal observations.
If a physician has proven to be a competent and credible witness, with a strong grasp of the facts and an intimate knowledge of the patient’s medical history, he may also be able to offer a medical opinion on other issues he did not personally observe. In which case, it may be useful to allow the witness to veer into expert testimony territory. That being said, it is important to err on the side of caution and ensure that the physician adheres to all applicable disclosure rules and evidentiary standards of the jurisdiction that govern expert witnesses. Not only will courts exclude physicians who are trying to “disguise” themselves as fact witnesses in order to circumvent the protocol for experts, but the move may also affect the doctor’s credibility in the eyes of a fact finder.
As such, the treating physician’s testimony should always be supplemented with the testimony of a retained expert. This strategy allows the physician to testify to the facts of treatment and, depending upon the controlling case law, the doctor may also render some constrained opinions without having to follow the strict Rule 26 written report requirement. The retained expert, however, is free to testify to broader matters and can then pick up where the treating physician left off. Overall, the main goal is to admit as much useful medical testimony as possible to amplify the case theory.