How much can a treating physician or other witness with expertise be paid for his/her deposition testimony?
Illinois Supreme Court Rule 204(c) provides as follows:
“The discovery depositions of nonparty physicians being deposed in their professional capacity may be taken only with the agreement of the parties and the subsequent consent of the deponent or under a subpoena issued upon order of court. A party shall pay a reasonable fee to a physician for the time he or she will spend testifying at any such deposition. Unless the physician was retained by a party for the purpose of rendering an opinion at trial, or unless otherwise ordered by the court, the fee shall be paid by the party at whose instance the deposition is taken.”
The Committee Comments to Supreme Court Rule 204(c) state as follows:
“A party may agree to pay a reasonable professional fee to a physician or surgeon for the time he or she will spend testifying at any deposition. The fee should be paid only after the doctor has testified, and it should not exceed an amount which reasonably reimburses the doctor for the time he or she actually spent testifying at deposition.”
Rule 3.4(b) of the new Illinois Rules of Professional Conduct (effective January 1, 2010) indicates that a lawyer shall not “falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.”
Comment 3 to these Rules states
“With regard to paragraph (b), it is not improper for a lawyer to pay a witness or prospective witness the reasonable expenses incurred in providing evidence or to compensate an expert witness on terms permitted by law. Expenses paid to a witness or prospective witness may include reimbursement for reasonable charges for travel to the place of a deposition or hearing or to the place of consultation with the lawyer and for reasonable related out-of-pocket costs, such as for hotel, meals, or child care, as well as compensation for the reasonable value of time spent attending a deposition or hearing or in consulting with the lawyer. An offer or payment of expenses may not be contingent on the content of the testimony or the outcome of the litigation, or otherwise prohibited by law.
Accordingly, the linchpin of all this is whether the fee paid to a doctor is “reasonable.” So, how should attorneys handle demands by treating physicians and others for very high deposition fees or other conditions imposed on the taking of their depositions?
The greatest concern of an attorney is that he/she will refuse to pay these unreasonable fees and the doctor will then retaliate by giving deposition testimony which is highly unfavorable to that lawyer’s client. On the other hand, it appears that going along with the doctor’s deposition demands might be a violation of the lawyer’s ethical mandates.
So, what is “unreasonable”? About 20 years ago, I filed a petition to find a neurosurgeon’s deposition demand of $750 per hour to be unreasonable. The Court granted my motion because at that point, $750 per hour was unthinkable. Now, $750 per hour is almost commonplace.
I am presently trying to figure out what I should do with the following demands by a neurosurgeon:
• $1,250 per hour (one hour paid in advance);
• the lawyer must pay the remainder due at the end of the deposition (i.e., bringing a blank check);
• $250 to schedule the deposition (not credited against the hourly rate); and
• forfeiture of all deposition amounts if the deposition is cancelled less than 48 hours prior to the deposition.
It is clear that the doctors who attempt to impose these types of deposition fee demands are doing so with the intent of discouraging lawyers from taking their depositions, or at least to minimize the length of time such depositions take. It is manifestly untrue that these doctors are just trying to seek “compensation” for the time they could have spent seeing patients because virtually all such doctor depositions are taken during non-business hours.
Also, the doctors are never willing to make their demands be mutually imposed such that a lawyer’s hourly rate will be paid by the doctor if the physician cancels a deposition or is late, which are all too common occurrences. I wish we as lawyers could get something like combat pay for the need to take a deposition at 6:30 a.m. or staying late into the night to finish the testimony, but those types of concessions by attorneys are taken for granted by the doctors.
So, again, how much is too much? Unfortunately, I don’t know the answer, but I know the standard deposition rates continue to rise and I’m not sure what to do about it. Doctors complain loudly about the costs of litigation driving up the costs of medicine, but in my view, the doctors share a part of the blame because of the fees they charge to give testimony. Every once in a while, lawyers talk about having legislation passed which would impose a cap of the fees doctors could charge to give deposition testimony. The fear is that once the dollar amount cap is enacted, the “cap” would become the minimum charge. Years ago, a very large physician malpractice insurance carrier made it know it would pay $250 per hour to a physician for his/her deposition time without having to obtain higher level authorization. Soon afterward, virtually all physicians began charging $250 per hour.
Maybe we need a more active judiciary stepping in to put a stop to these very high doctor deposition fees, but we probably also need a more active trial bar and those who pay the bills of the doctors giving depositions.