Evidence—Doctor Not Entitled to Expert Fees When Testifying To Treatment

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State v. Whitten, __Ariz. App. __1 CA-SA 11-0127 (App. Div. I, July 21, 2011) (J. Downie)


Defendant's child was admitted to the Maricopa Medical Center after allegedly falling off a bed. The infant was treated by several doctors over several days but ultimately died from multiple skull fractures and brain injuries. The defendant mother was charged with first degree murder and child abuse. The state called the treating physicians as witnesses in their case. The doctors demanded they be paid their normal professional hourly rate for their testimony since they were experts in the field of medicine. The state refused. The trial court ordered the state to pay six of the doctors as experts at $350.00 an hour. The state then filed a motion for special action. The Arizona Court of Appeals accepted jurisdiction and reversed.

The court of appeals distinguished between a doctor asked to opine regarding another physician's care and treatment on issues of malpractice and causation versus a doctor being asked to testify as to things she observed in the normal course of her treatment of a patient. In the former, the court found the witness is in fact being asked to provide expert opinions and analysis and are therefore entitled to be compensated as an expert. However, in the case at bar where the doctors are called to testify regarding information they obtained during their treatment of a patient, they are considered only a lay witness. The difference between an expert witness and a lay witness is a lay witness testifies about what they did, thought or felt at the time of treatment. An expert witness forms their opinion after the conclusion of the treatment.

Footnote 2 in the decision is of particular interest to civil attorneys since this holding arises out of a criminal case. " Fn. 2 Most of the cited decisions arise in the context of disclosures under Federal Rule of Civil Procedure 26(b)(4) or similar state rules of civil procedure. Although criminal cases are different in many relevant respects, these cases are nonetheless instructive. Nothing in this opinion, though, should be read as affecting disclosure obligations or witness compensation issues in civil cases."

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