A recurring issue is the extent to which the plaintiff's treating health care provider can offer an expert opinion, including expressing an opinion as to the correctness of diagnoses rendered by another physician.
In a personal injury negligence case, the DC Court of Appeals held that it was reversible error to allow such testimony by the plaintiff's witness in a trial that resulted in a verdict for the plaintiff, since that testimony had not been disclosed under Rule 26(b)(4) as expert testimony.
However, as liability was uncontested on appeal, the court remanded for a new trial on damages alone. Incidentally, the appeal took 3.5 years from oral argument to decision.http://www.dcappeals.gov/dccourts/appeals/pdf/02-CV-1147.PDF
Structural Preservation Systems, Inc. v. Petty, No. 02-CV-1147 (D.C. June 21, 2007) (per curiam).
Some excerpts follow:
. . . Pursuant to Super. Ct. Civ. R. 26 (b)(4), a party has the right to discover prior to trial the facts and opinions of an expert "acquired or developed in anticipation of litigation or for trial. . . . " Opinions developed by an expert in the course of a patient's treatment and those developed in preparation for litigation are treated differently under Rule 26 (b)(4). "Insofar as a physician obtains and develops his information and opinions in the course of his treatment of a patient, he becomes an 'actor or viewer' who should be treated as an ordinary witness rather than as an expert covered under Rule 26 (b)(4)." Adkins v. Morton, 494 A.2d 652, 657 (D.C. 1985) (citations omitted); see also Safeway Stores, Inc. v. Buckmon, 652 A.2d 597, 606 (D.C. 1994) (holding that a physician witness was not an expert subject to Rule 26 (b)(4)'s requirements where his opinions were acquired during the course of the patient's treatment).
In determining whether the witness must be disclosed under Rule 26 (b)(4), the focus is not merely on whether the witness has been identified as a treating physician, "but rather on the substance of the testimony." Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993) (citation omitted). Federal courts construing the comparable federal rule have held that a treating physician must be disclosed as an expert where the treating physician's opinion is based upon medical records not viewed in the course of treatment. See id. (holding treating physicians' opinions on standard of care were classic expert testimony formulated for litigation and not for treatment, and therefore, properly excluded for lack of compliance with Rule 26 (b)(4)); Riddick v. Washington Hosp. Ctr., 183 F.R.D. 327, 331 (D.D.C. 1998) (noting that treating physician's opinion on causation and injury would be excluded for noncompliance with Rule 26 (b)(4) if based on review of another health care provider's records for litigation, rather than treatment purposes). Generally, "'[d]ecisions regarding the scope and the conduct of discovery will be reversed only upon a showing of abuse of discretion.'" Hollins v. Federal Nat'l Mortgage Ass'n, 760 A.2d 563, 579 (D.C. 2000) (quoting Dalo v. Kivitz, 596 A.2d 35, 36 n.1 (D.C. 1991)); see also Regional Redevelopment Corp. v. Hoke, 547 A.2d 1006, 1008 (D.C. 1988) ("Whether or not an expert who is not listed in an interrogatory can testify is within the wide discretion of the trial court."). Applying these general principles, we consider Structural's specific claims.
. . . . The question is whether the substance of the opinion is of the type that would be formulated for treatment purposes or prepared in anticipation of litigation. See Patel, supra, 984 F.2d at 218 (citation omitted) (noting that the focus of the inquiry for purpose of determining Rule 26 (b)(4)'s disclosure requirements should be on the substance of that testimony).
Structural argues that Dr. Hartung should not have been allowed to testify that Dr. Kahanovitz's opinion that Petty needed physical therapy was correct. We agree that a treating physician's opinion as to the correctness or incorrectness of another treating physician's opinion tends to be of the type associated with preparation for litigation, rather than simply treating the patient. "[A] treating physician requested to review medical records of another health care provider in order to render opinion testimony concerning the appropriateness of the care and treatment of the provider would be specifically retained notwithstanding that he also happens to be the treating physician." Brown v. Best Foods, 169 F.R.D. 385, 389 (N.D. Ala. 1996) (quoting Wreath v. United States, 161 F.R.D. 448, 450 (D. Kan. 1995), and also citing Patel, supra, 984 F.2d at 218)). Simply because one is a treating physician does not mean that he or she cannot hold opinions arising in the course of a patient's care and treatment and at the same time develop expert opinions solely for purposes of the trial. When the expert does the latter, it appears to be a reasonable requirement that such opinions be disclosed under Rule 26 (b)(4).
Thus, unless relevant to his or her own treatment decisions, a treating physician or other healthcare expert may not testify as to the propriety of decisions and treatment provided by other healthcare professionals, even if the opinion is formulated from materials reviewed during the treatment process. Applying that principle, Dr. Hartung should not have been permitted to testify about the appropriateness of Dr. Kahanovitz's recommendation for physical therapy. Although she reviewed his treatment plan in the process of forming her own approach to treatment, Dr. Hartung's commentary on whether physical therapy was necessary exceeded permissible bounds. Absent some indication that it was necessary for Dr. Hartung to evaluate the reasonableness of Dr. Kahanovitz's care in order to form her own treatment plan, allowing her to testify about the reasonableness of another doctor's treatment has the earmarks of expert testimony that was prepared for litigation purposes. Therefore, absent compliance with the requirements of Rule 26 (b)(4), it should not have been admitted. A similar result obtains with respect to Dr. Hartung's testimony as to the reasonableness of the fees charged for an MRI and physical therapy rendered by others. While she could testify about the reasonableness and necessity of the bills for her own treatment, her testimony about such matters as related to other doctors exceeded the permissible scope of the treating physician exception.
Alan R. Kabat, Bernabei & Wachtel, PLLC