Physician’s Duty to Cooperate in Litigation

Mr. Jones treated with two doctors at ABC Orthopaedic Associates, Dr. Smith and Dr. Smithy. Accordingly, plaintiff’s counsel contacted Dr. Smith and Dr. Smithy requesting their fee schedule for deposition/trial testimony.

As such, on June 6, 2013, Dr. Smith corresponded with plaintiff’s counsel advising that his fee for deposition is a minimum of $8,000 in advance covering up to only the first two hours, whether two hours of time or less is used, and then $1,800 per hour thereafter which must be paid at the conclusion of the deposition. Additionally, Dr. Smith’s deposition fee includes preparation time beyond review of the patient chart and one hour of any appropriate medical research at a rate of $700 per hour.

Moreover, Dr. Smith’s fee for a Court appearance within Monmouth or Ocean County, New Jersey is a minimum of $10,000 in advance covering again up to only the first two hours, whether two hours of time or less is used, and then $2,000 per hour thereafter which must be paid at the conclusion of the appearance. This appearance fee incredibly also includes travel time at these exorbitant rates. Furthermore, Dr. Smith’s appearance includes preparation time beyond review of the patient chart and one hour of any appropriate medical research at a rate of $1400 per hour.

As to Dr. Smithy, his fee for deposition is a minimum of $4,000 in advance covering up to only the first two hours, whether two hours of time or less is used, and then $900.00 per hour thereafter which must be paid at the conclusion of the deposition. Additionally, Dr. Cohen’s deposition fee includes preparation time beyond review of the patient chart and one hour of any appropriate medical research at a rate of $700 per hour. Additionally, Dr. Smithy’s fee for a Court appearance within Monmouth or Ocean County is a minimum of $6,000 in advance covering again up to only the first two hours, whether two hours of time or less is used, and then $1,000 per hour thereafter which must be paid at the conclusion of the appearance, including travel time. Furthermore, Dr. Smithy’s appearance includes preparation time beyond review of the patient chart and one hour of any appropriate medical research at a rate of $700 per hour. Based on the exorbitant fee schedules of Dr. Smith and Dr. Smithy for both their deposition and trial testimony, plaintiff now moves to reduce their expert fees.

The nature of the relationship between a patient and physician imposes fiduciary obligations on the physician. This fiduciary duty includes the duty of treating doctors to cooperate in litigation to their patients. Members of the medical profession Aowe their patients more than just medical care for which payment is exacted; there is a duty of total care; that includes and comprehends a duty to aid the patient in litigation, to render reports when necessary and to attend court when needed. That further includes a duty to refuse affirmative assistance to the patient’s antagonist in litigation.@ Piller by Piller v. Kovarsky, 194 N.J. Super. 392, 296 (Law. Div. 1984) (citing Alexander v. Knight, 197 Pa. Super. 79 (Super. Ct. 1962)

The New Jersey Courts have recognized, on contract principles, the enforceability of a treating physician’s affirmative undertaking to cooperate with their patients in litigation. See Battista v. Bellino, 113 N.J.Super. 545 (App.Div.1971); Stanton v. Rushmore, 11 N.J.Misc. 544 (Sup.Ct.1933), aff’d. 112 N.J.L. 115, (E. & A.1933). Pursuant to this contractual relationship, a treating physician has a duty to render reasonably required litigation assistance to his patient. Spaulding v. Hussain, 229 N.J. Super. 430, 440 (App. Div. 1988).

In Spaulding, the plaintiff, seriously injured in a slip and fall accident, sued his treating physician after the physician “improperly refused to testify” for the plaintiff in his negligence action against a commercial property owner. The complaint alleged that, as the key witness, the physician’s failure to appear forced the plaintiff to settle his negligence claim for a “grossly inadequate sum.” Id. at 432. Therefore, the physician was obligated to make the plaintiff financially whole. Id. at 435. In defense, the physician asserted that the plaintiff was comparatively negligent for accepting the inadequate settlement offer instead of moving for a mistrial or seeking other alternative relief. Id. at 442-44.

The Appellate Division in Spaulding rejected the physician’s argument, finding that the physician’s nonappearance threatened a litigation catastrophe to plaintiff and his attorney. Id. at 444. Therefore, they “were obviously entitled to deal with the impending catastrophe in any reasonable manner,” which included settling the case for a lesser amount and suing the physician for the difference. Ibid.

As such, the Court’s holding in Spaulding reaffirmed the nature of the relationship between a patient and physician that treating doctors have a fiduciary duty to cooperate in litigation with their patients. A treating physician is not at liberty to ignore with impunity the basic obligation of rendering a reasonable modicum of litigation assistance. Nor is he free, without compelling professional justification, to renege on a promise, reasonably and detrimentally relied upon by his patient, to render specific litigation assistance. Id. at 441; see also Serrano v. Levitsky, 215 N.J. Super. 454 (Law. Div. 1986)(holding that it would be unfair to permit plaintiff’s own physician to undermine plaintiff’s case since the doctor’s professional fealty must not be allowed to harm his patient to whom he owes the greater duty).

Moreover, the fiduciary duty of a treating physician to cooperate in litigation with their patients includes the physician charging a reasonable fee for his or her services. R. 4:10-2(d)(2) states, A[u]nless otherwise ordered by the court, the party taking the deposition shall pay the expert or treating physician a reasonable fee for the appearance, to be determined by the court if the parties and the expert or treating physician cannot agree on the amount therefore.@ New Jersey Courts have ruled on what constitutes a reasonable expert fee. In Johnston v. Connaught Laboratories, Inc., 207 N.J.Super. 360 (Law Div.1985), plaintiff took the deposition of Dr. Pleasure, defendants’ expert, a neurologist, and was billed $750 for the one hour deposition. Plaintiff offered Dr. Pleasure $200. At a case management conference, plaintiff raised the issue to the presiding Judge that the fee was excessive. The Trial Judge agreed with plaintiff ruling that $200 was a fair and reasonable amount for the deposition. Id. at 362. See also Perez v. Papandrikos, 2006 WL 3720307 (N.J. Super. Law 2006)(court finds it equitable to set Dr. Fineman’s deposition testimony rate at $650 per hour for a neurosurgeon that has been recognized as on of the Best Doctors in the New York Metropolitan area nine times.); Schroeder v. Boeing Commercial Airplane Co., a div. of Boeing Corp., 123 F.R.D. 166 (D.N.J.,1988)(finding that the Magistrate appropriately limited amount aircraft manufacturer could be charged for deposing former flight attendant’s medical and economic experts, in view of number of experts claimed by attendant and excessive fees that they wished to charge).

Here, Dr. Smith’s hourly rate for his deposition is $4,000 per hour for the first 2 hours, and $1,800 per hour thereafter. Dr. Smith’s hourly rate for trial is $5,000 per hour for the first 2 hours, and $2,000 per hour thereafter. Likewise, Dr. Smithy’s hourly rate for his deposition is $2,000 per hour for the first 2 hours, and $900 per hour thereafter. Dr. Smithy’s hourly rate for trial is $3,000 per hour for the first 2 hours, and $1,000 per hour thereafter. These expert rates are more than twice that of the highest going rate, and do not uphold the fiduciary duty of treating doctors to cooperate in litigation with their patients since these rates are totally unreasonable, and would deter plaintiff from having these doctors testify and proceed to trial in this matter.

In fact, the deposition/trial expert rates for similar doctors in the area are not even close to that amount. These expert rates are far below the rates requested by Dr. Smith and Dr. Smithy. Such unreasonable rates are prohibitive and seriously compromise the ability of plaintiff to prosecute the case. As stated above, a doctor has a duty to cooperate in litigation with their patients which includes charging reasonable rates for their expert fees. Otherwise, plaintiff would be deterred from paying these physicians and having them go to court and testify. As shown in Exhibit C hereto, no orthopaedic surgeons in the area charge remotely the expert rates of Dr. Smith and Dr. Smithy.watch Beauty and the Beast 2017 film now

Therefore, plaintiffs respectfully request that their motion to reduce the expert fees of Dr. Smith, M.D. and Dr. Smithy, M.D. be granted limiting their expert fees appropriately to a reasonable rate as shown by the rates of other orthopaedic surgeons in the area.

Thank you for Your Honor’s attention to this matter.

Respectfully submitted,
COUNSEL FOR PLAINTIFF

EPILOGUE- The rates of Dr. Smith and Dr. Smithy were reduced to $200/hr.

**Names have been changed for anonymity.