Today we look at an opinion the Appellate Court released last night on the interplay between doctors and the court system, specifically what a chiropractor can charge for testifying about the care of the patient. I dealt with this same doctor’s office recently so I was eager to see what went down. You see, when doctors are subpoenaed and required to testify about their treatment of their patient in a personal injury case, they are entitled to a reasonable hourly fee for their time. (Any other witness that comes to court is only entitled to $20 plus a few cents per mile, but physicians can get a a professional fee). Seems fair, yes? The range of what they charge is about $500 per hour on the low end, typically for internal medicine and family doctors, to over $1,000 PER HOUR for orthopedics and neuros, usually with a 2 hour minimum, in advance, no refunds, even when done in their office. Not a bad income for sitting in a chair and reading your notes.

To digress a bit for perspective, most of the time the doctors won’t go beyond what’s physically written in their records, which can be very very brief, and say anything nice for their patients, e.g. that they’re not making it all up, etc. so you don’t always get what you pay for. I’m not against doctors. I’m just saying what happens, because eventually that money comes out of any settlement or verdict, and if there is none, out of my pocket. That doesn’t count the $500 or so for the court reporter who has to take down everything and write it up.

You may ask are there any standards, or who sets the fees? According to the supreme court rules, the judge has the authority to set a reasonable fee for the actual time spent testifying, after the physician has testified. The judge will usually set a much lower fee than the doctors want. In practice, though, you don’t want to anger the doctor and use this rule because the doctor will likely resent you for making him poor, and say bad things which would harm your client. So they’ve kind of got you by the you know what. You usually just pony up and pay.

It is against this backdrop that the Appellate Court decided, in a decision released last night, a case about the testifying fee of a chiropractor. In this case, it was the defendant that wanted to take the deposition, or sworn statement, of the chiro. Now typically chiropractors will charge less than M.D.’s just because they charge less for everything. This chiro’s office wanted $550 per hour with a two hour minimum, in advance.

I had the same experience with this doctor’s office a few months ago when I sent a trial subpoena and they advised me of that through their attorney. I politely told them that was just silliness and I would let the judge know and he would be sending the sheriff out to bring him in. The case settled before the trial date so we avoided that scenario but I read on in the opinion like it was the most suspenseful mystery novel. So the defense firm also refused the $1,100 and offered to compromise at $300 per hour, but the chiro office refused! And the case went up on appeal.

First, the court noted there was no direct precedent. It then decided that chiropractors are in fact “physicians” under the law and so denied the defendant’s request to only have to pay them $20 plus mileage as they would a regular witness. Then the court looked at what the trial court did. Now the trial court judge, Judge Kathy Flanagan, is, let’s say, a no-nonsense judge. Instead of picking a number out of thin air, she looked at the chiro’s tax returns and said based on a yearly income of $139,000, at 40 hours per week, your hourly fee is $66!, and no 2 hour minimum, but instead in 15-minute increments. The Appellate Court said there are many ways to decide what’s reasonable, and the trial judge’s way was reasonable. So there you have it. $1,100 vs $66! Quite a difference.

My doctor friends may be offended but I don’t know why. I always mention that other witnesses come to court. They are sitting in a chair in their office reading their notes out loud (or trying to decipher their writing) and making let’s say $750 per hour, 2 hour minimum. Then they say well I could be doing surgeries making more money than that. But they don’t do surgeries all day, all week, because we always do these in their “off days,” and they don’t have to give up any surgeries or patients. We will even go there at 7am or 7pm in order to fit into the doctor’s schedule (and also wait for an hour). So they really can think of it as extra income. This ruling, while interesting, may not change much, but it’s something to think about.

What do you think? More greedy trial lawyers? Is there a need for more of a balance?