By Arthur D. Leritz, Attorney at Law
DEPOSITION: A form of discovery whereby the attorney calling for the deposition has the right to ask questions and obtain answers from a party, witness, or expert while that individual is under oath. Notice of the deposition must be served on the party or witness five (5) days in advance of the date of the deposition unless the parties agree otherwise. A court reporter makes a word for word record of all that is said at the deposition. See Common Legal Terms, at www.adlergiersch.com/personal-injury-legal-terms
Although the word “deposition” is a common legal term and familiar to many healthcare providers in the medical-legal context, there remains a lot of confusion about what a provider can charge for their time in deposition. This confusion was sparked by a 1993 Court of Appeals ruling that a treating chiropractor was not entitled to doctor-level fees for time spent in responding to discovery such as a deposition, but only the statutory witness fee. The Superior Court Civil Rule 26 (b) was subsequently amended to reverse this appellate court decision. Superior Court Civil Rule 26(b)(7) states in relevant part:
Discovery From Treating Health Care Providers. The party seeking discovery from a treating health care provider shall pay a reasonable fee for the reasonable time spent in responding to the discovery. If no agreement for the amount of the fee is reached in advance, absent an order to the contrary under section (c), the discovery shall occur and the health care provider or any party may later seek an order setting the amount of the fee to be paid by the party who sought the discovery . . . (Emphasis added).
So, what is considered a “reasonable fee” and who pays it? The “reasonableness” of a healthcare provider’s fee is based on a wide range of factors, including practice specialty, credentials, level of experience, practice location, etc. For example, a Board Certificated medical specialist will have a higher fee than a manual therapist.
Another factor is whether the healthcare provider is an “expert” witness or a “treating” witness. If your involvement arises from your role as healthcare provider for the patient, you are considered a “treating” witness when calculating a reasonable fee in responding to discovery. If you have been retained solely for purposes of litigation and have developed facts and opinions in anticipation of litigation, such as when hired for a one-time IME or impairment opinion, then you are entitled to charge for your time as an “expert.” Often, the expert’s reasonable fee for time will be higher than the reasonable fee charged by the treating healthcare provider. Nonetheless, the treating provider is still entitled to a reasonable fee for the reasonable time spent in engaged in getting ready for the deposition and at the deposition.
Rule CR 26(b)(7) calls for the parties to the lawsuit to come to an agreement on what constitutes a “reasonable fee.” To initiate the process of compensation for the healthcare provider’s time, it is important for the provider to request payment in advance by sending a copy of their fee schedule to the attorney whom requested your deposition indicating the time and cost. In fact, you will also want to send a copy of your fee schedule to your patient’s attorney as he/she should (if the attorney is working with ‘best practices’) want time with you in advance of the deposition (if the attorney is working with ‘best practices’) to prepare you for it. The problem arises when the insurance company attorney, representing the at-fault party, balks at paying your stated fee.
If defense counsel refuses to pay the fee, this does not mean the deposition cannot be scheduled or is automatically cancelled. Under Superior Court Civil Rule 26 (b)(7), even if there is no agreement on the fee, “the discovery shall occur,” unless a judge orders differently pending the despite on the fee. Generally, a judge will not rule on this issue until after the deposition. Once the deposition takes place, any party in the case or the healthcare provider may file a motion to have the court set a reasonable fee. Due to the expense and time of filing such a motion, it the better practice for the healthcare provider to work closely with the patient’s attorney to address the fee issue prior to the deposition.
Under the rule, the reasonable time spent in reviewing the patient’s file in preparation for the deposition must also be paid. What is a “reasonable” amount of time is also not expressly stated, but must be something in proportion to the volume of records and the complexity of the issues in the patients case.
As the date of your deposition approaches, the patient’s attorney should ask to meet with you to prepare for the deposition. If the event, the patient’s attorney has not asked for any preparation time prior to the deposition (not a best practice), then you might consider contacting the patient’s attorney and recommend that he/she set up a meeting.
In summary, if you receive a deposition notice from defense counsel asking to take your deposition regarding your treatment of a patient you should:
- Forward a written notice setting out your hourly rate for your testimony and requiring pre-payment by the insurance defense attorney whom requested the deposition. Request should be clear that payment is made in advance and that additional time will be billed following the deposition at the same rate, if it goes beyond the time requested
- Schedule preparation time with the patient’s attorney and bill the patient’s attorney for that preparation
- If the defense attorney refuses to pay your requested rate, simply call the patient’s attorney to assist you in negotiating the payment in advance or agree to bring a motion with the judge seeking your reasonable compensation following the deposition.
If any attorney at Adler Giersch, PS is involved in the legal representation of your patient’s traumatic injury claim we will ensure that you are prepared for your deposition and that the insurance attorney does not give you the “run around” in paying reasonable compensation for your time. The attorneys at Adler Giersch ps in Seattle, Bellevue, Everett, and Kent stand ready to assist your patients and your offices regarding personal injury and insurance matters.