Expert Witness Fees – Who’s Responsible Attorney or Patient

By Richard H. Adler, Attorney at Law

This month I have decided to stray from the usual practice of sending you a medical research article of mutual interest. Instead, this month’s article will focus on the issue of who pays for records, reports, deposition, or trial testimony time: patient or attorney?

Unfortunately, sometimes the health care provider ends up in the middle. The attorney will point to the patient/client and the patient/client will point to the attorney.

Recently, the Court of Appeals for the State of Washington unanimously ruled (3-0) in Copp v. Breskin, 56 Wash. App. 229 (1989) that a law firm was liable for the expert’s fee1 absent a clear and expressed disclaimer of responsibility.

In this case, the law firm of Breskin and Robbins hired expert Copp. The law firm and the client paid some of Copp’s expert fees as they went along, but left a large unpaid balance after litigation had been concluded.

The Court of Appeals analyzed these facts by first referring to the Washington State Bar Association Ethics Opinion Number 140, which states that:

When the attorney has directly and personally ordered and arranged for services in circumstances under which…the attorney…did not make it clear (if such were [the] intent) to the person rendering services that such person must look to the client alone for payment, the attorney has been derelict in…preserving a good public image of the legal profession. The primary responsibility of making it clear that the attorney acts in an agency capacity with no personal liability rests upon the attorney. If [the attorney] has been derelict herein, others may reasonably be misled into believing that the attorney is agreeing to pay or guaranteeing the payment of the obligation so created. In this circumstance it would be the ethical obligation of the attorney to pay such indebtedness and then look to [the] client for reimbursement and assume the risk of non-payment.

The court also reviewed other state court’s opinions on this issue which revealed that Oregon, Montana, and Florida ruled that an attorney was not responsible for litigation services ordered on behalf of the patient/client. However, a stronger trend was noticed in the states of North Carolina, Missouri, Ohio, Wisconsin, Nevada, Rhode Island, New Jersey, Massachusetts, and Minnesota requiring that the attorney be liable for the experts’ fees.

The rule in Washington goes with the majority of other states in holding the attorney responsible. The only conceivable exception to this rule is where the attorney expressly (and in writing) tells the doctor:

(a) the law firm is not responsible, and
(b) that the patient/client is responsible for the bill.

I am enclosing a copy of the case for your file. Remember, it is the custom and law in the State of Washington that the attorney requesting litigation support services from an expert be responsible for the bill unless there is an agreement contrary to that.

If you find yourself embroiled in a controversy like this, forwarding a copy of the enclosed case opinion with a cover letter to the attorney or law firm involved may bring about a prompt resolution.

If ultimately you are not able to resolve the issue directly with the attorney, you may want to file a complaint with the Interprofessional Committee of the Washington Bar Association. Committee members will investigate your complaint, attempt to mediate an agreement, or, if need be, hold a fee arbitration.

Very truly yours,
ADLER GIERSCH, P.S.

Richard H. Adler
Attorney at Law

1 Please note that we are referring to fees for litigation services, not treatment services. All health care treatment costs are the obligation of the patient.