A game is being played concerning the role of treating physicians in personal injury actions, and you should know how it affects your defense.
‘Treating physician’ is a simple enough phrase. From an initial perspective, one might think it simply refers to a medical doctor providing ordinary care, but it has a loaded—and often complex—definition in personal injury litigation. A shell game of semantics is being played by personal injury attorneys, all to ensure that defendants face surprise and prejudice at trial. Moreover, increasingly, medical providers are playing a less-than-objective and/or unbiased role in personal injury litigation, and you should be prepared.
Over the last decade, life care planning experts and future medical care recommendations have become an easy way for personal injury lawyers to substantially increase (at least on paper) claimed economic damages with minimal proportional investment. Where once these expenses were reserved for catastrophic cases, we now frequently see claims of future care damage, often many times exceeding past medical expenses, even for the most benign incidents.
A broken arm or bruised knee is painful and perhaps costly to treat, but most minor injuries will heal with time. However, there is little economic value to these claims. Where that injury could be said to be linked to years of conservative therapy, injections, or a future surgery that could occur decades from now, an injured plaintiff can substantially increase the value of a claim. This type of future care evidence requires the testimony of a medical expert, and not all experts are treated the same by Florida courts.
For many years, personal injury attorneys have shared profitable relationships with medical providers that specialize in accident care. These are not your in-network providers, but entities catering solely to the personal injury market. These medical providers often structure their businesses around reimbursement through personal injury settlement and liability insurance proceeds. In so doing, their goal is often to give a case more value, rather than making the patient well.
These providers may not even accept medical insurance, in favor of separate fee agreements with personal injury lawyers. Many of our clients are surprised to learn this, but the practice has existed for decades despite attempts to curb it. Of course, these arrangements often result in a medical provider having a vested interest in the outcome of a claim and, likewise, a learned approach concerning what needs to be said to support a plaintiff’s injury claim.
Modernly, we are seeing more reputable medical providers catering separately to this type of personal injury medical care. Even objective and independent providers naively serve in an expert role, solicited by personal injury lawyers and their experts to provide opinions they would not offer but for the existence of litigation.
Florida courts, under the longstanding and erroneous belief that treating providers are always independent of the legal fray, have considered treating physicians in a ‘hybrid’ role. This means that treating physicians are typically seen as their own category of witness, shielding them from expert discovery and often shifting the burden of discovery cost to defending parties. As explained by the Florida Supreme Court, the testimony of a treating physician “blurs the boundary between fact testimony and expert testimony.” This distinction is important because fact witnesses cannot typically provide expert opinions at trial.
The Florida Supreme Court is correct: a treating physician is both – a hybrid of sorts. They provide factual testimony as to their observations, examinations, and testing results. Then, based on their specialized skill, they also provide medical opinions concerning past treatment. Sometimes they even provide recommendations for treatment that is next to occur, only in the immediate future. If that were it, most issues would be avoided.
However, the line blurs when the treating physician is called to offer other opinions, such as the cause of the injury or whether the care is related to the injury or pre-existing conditions. They are also frequently called to provide testimony about the reasonable medical costs, irrespective of whether they themselves have any specialized knowledge of the medical market or their own billing (often performed by dedicated staff members). Lastly, treating physicians are increasingly used to project long-term care, even where that might not be customary in their own practice. These opinions are being formed or specifically solicited only because of the litigation and not simply to make their own patients well.
An increasing number of Florida appellate courts are recognizing the gamesmanship being played within the semantics. Where treating physicians can be used outside their customary role, a personal injury lawyer can avoid the costs of hiring a specialized expert, limit the scope of expert discovery, and may also conceal the true nature of the witness.
Many Florida trial courts—but not all jurisdictions—now affirmatively require personal injury lawyers to make an expert disclosure of all treating physicians (including a proffer of their actual opinions), irrespective of whether they will be used in an ‘expert’ role or whether their testimony will stay faithful to their medical records. This effort helps reduce the burden of discovery, tailor the triable issues, and encourages full and fair discovery, such to preserve both parties’ due process for trial – only if it is actually enforced. However, not all trial courts in Florida require personal injury lawyers to disclose when they intend to use a treating physician in a quasi-expert role, despite recent appellate rulings. This omission allows personal injury lawyers to conceal expert opinions during critically short pre-trial phases. Florida’s Sixth District Court of Appeal, just months ago, adopted the term “super expert,” wherein the ‘treating’ physician’s true expert testimony is concealed from disclosure under the guise that the witness will only serve in their limited treating capacity.
As recently explained by the Fifth District Court of Appeal, simply disclosing the medical provider as a ‘treating physician’ is “not determinative” as to their true purpose for trial. “Rather, it is the subject matter of the witnesses’ intended testimony as set forth in the disclosure that guides our determination.”
A true treating physician must be “limited to their medical opinions as they existed at the time they were treating the plaintiff,” […] “formed during the course and scope of treatment in fulfillment of their obligation as a physician.” Opinions related to “causation and/or damages […] impairment, permanency, disability … and relationship of past and future medical care” are solely intended to support litigation and, as such, are the role of experts, necessitating greater disclosure and/or discovery, to ensure fair due process for both parties.
In sum, justice only exists where there is a fair process for both parties. Any trial process allowing a party to conceal the true purpose of a witness on key issues is materially prejudicial. Until Florida trial courts universally recognize the benefits of full and fair pre-trial disclosures, prejudice will continue. This is why we will continue to press this issue, to educate trial courts on the gamesmanship being played over semantics, in an effort to ensure that our clients receive complete disclosures and due process at trial.