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Last Post 21 Jul 2014 12:08 PM by  James Kloss
R-13-0042 Rule 26(b)(4)(C), Ariz.R.Civ.Proc.
 114 Replies
Author Messages

28 Aug 2013 10:29 AM

    Petition to Amend Rule 26(b)(4)(C), Ariz. R. Civ. P.

    Would provide compensation for treating physicians and other medical providers as expert witnesses when compelled to testify about a patient's medical treatment

    Co-Petitioners on behalf of Arizona Association for Justice:

    Geoffrey M. Trachtenberg (019338)
    362 North Third Avenue,
    Phoenix, Arizona 85003
    (602) 271-0183, Fax: (602) 271-4018

    Richard S. Plattner (005019)
    316 East Flower Street, P.O. Box 36570
    Phoenix, Arizona 85067
    (602) 266-2002, Fax: (602) 266-6908

    [Emergency Consideration Requested Pursuant to Rule 28(g)]

    Filed: August 28, 2013.

    Motion for Expedited Consideration - DENIED 9/3/2013.

    Rule change petition opened for comment. COMMENTS DUE MAY 20, 2014.

    DENIED August 26, 2014.


    24 Oct 2013 06:08 PM
    Lynn Eric Goar
    Law Office of Lynn Eric Goar PC
    1955 W. Grant Rd. Ste. 125
    Tucson, Az 85745

    I routinely handle personal injury cases. Many of those claims involve relatively minor injuries. Many physicians shy away from getting involved in these cases because of the possibility of the case going into litigation. If this petition is not approved, it is even more likely that doctors will refuse to treat individuals involved in accidents as it is unlikely that they will be fairly reimbursed for time spend giving testimony. In most of my cases the defendant does not routinely take the deposition of the treating physician. However, based on the holding in Sanchez v. Gama, I anticipate that such depositions will be taken in an effort to alienate the doctors and drive a wedge between them and their patients. This petition should be approved.

    03 Mar 2014 03:49 PM
    JoJene Mills
    Law Office of JoJene Mills,P.C.
    1670 East River Road, Suite 270
    Tucson, Arizona 85718
    (520)529-3113 fax
    State Bar # 10372

    To the Arizona Supreme Court:

    I am writing in support of R-13-0042. I have represented plaintiffs in personal injury cases for nearly 30 years. I handle a significant number of medical negligence cases. Over the years, the risks of litigation, required only for patients particularly, have become more and more onerous. There is every incentive for defendants to prolong litigation and make any case as costly as possible, so as to create a disincentive for other cases. There is little or nothing that can be done to prevent the medical and casualty industry from exploiting the rules, so as to make cases much more costly. Cost bonds are another tool that is used to make cases more costly for only one side. The petition should be granted.

    Thank you for your consideration.

    05 Mar 2014 10:35 PM
    Amy Langerman
    951 Coronado Avenue
    Coronado, CA 92118
    619-437-4580 (Fax)
    Of Counsel to the Law Offices of Raymond J. Slomski

    Dear Justices:

    I have read the petition of AAJ seeking to amend rule 26 (b)(4) to provide for payment of treating physician time when responding to a subpoena to testify about treatment rendered to an injured plaintiff. I approve and adopt the arguments raised in the petition. I write separately to provide a little background about the 'physician-lawyer" problem.

    I started out my career in the early 1980's as a plaintiff's attorney. I was a die-hard "white hat" attorney (or so I was called). Years later, the president of a doctor's insurance company walked into my office, without an appointment, seeking to hire me to represent doctors in Arizona because, as a trial lawyer, I was not afraid of actually trying cases that should be tried. As someone who then worked both sides of the fence, I got a unique perspective of why doctors hate lawyers and how their hatred of lawyers made representing injured victims that much more difficult. The Arizona Medical Community and the Arizona Bar worked together to create "guidelines for cooperation" that were in play informally for many, many years, that were designed to try to eliminate many fundamental disputes between lawyers and doctors that would hopefully encourage good doctors to provide treatment to injured victims, even those with attorneys. Those guidelines for cooperation provided for fair, reasonable compensation for a doctor's time in responding to a subpoena to provide testimony about their care and treatment, in a deposition or a trial.

    This was the practice and custom for the entirety of my career in
    Arizona. Until now. The only ones who will be harmed by this new rule are injured victims who may be twice victimized because doctors may not be willing to help them in accident cases because an insurance attorney, will subpoena them to a deposition because they can, and then not pay them for their time. After a few of these experiences, the doctors will simply refuse to provide treatment to accident victims.

    The proposed rule codifies the custom and practice that has endured for decades that is based on common sense, and professionalism. Doctors should be compensated for their time.

    The court should adopt the petition

    Amy Langerman

    07 Mar 2014 06:00 PM
    David A. Thomson (AZ Bar #007098)
    Law Offices of David A. Thomson, P.C.
    255 E. Osborn Road, #102
    Phoenix AZ 85012
    fax 602-230-2224

    I am a certified specialist in injury and death cases. I have practiced plaintiffs' personal injury law in Arizona since 1981, and I can confirm that if doctors cannot be paid reasonably for their time testifying, we might as well close the courthouse to injury claimants. This Petition should be granted as quickly as possible. I have been approached on multiple occasions by aggrieved doctors who are shocked and angry to learn that they can now be forced to testify, sometimes for hours, without being compensated for their time as had been the case for generations prior to the Sanchez ruling (as I recall, there were formal written guidelines for this payment for the doctor's time in a publication of the Maricopa County Bar and the Arizona Medical Society). The doctors already have qualms about treating injury claimants who might not be able to pay for their treatment. Now the problem is multiplied in the case of litigation. Doctors have told me that they will simply refuse to show up for depositions or trials if they do not get paid for their time. They see it as involuntary servitude. Both the doctors and their injured patients are very badly affected by the pain caused to treating doctors through the Sanchez ruling, and this inequity should be corrected through the proposed rule change.


    05 Apr 2014 05:16 PM
    Thomas M. Ryan
    555 W. Chandler Blvd., Suite 204
    Chandler, AZ 85225
    480-963-3333 (Main)
    480-726-1645 (Fax)
    Az Bar No. 007724

    I am a State Bar Certified Specialist in Injury and Wrongful Death cases. I write in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at their professional rate for time testifying in deposition. To do otherwise will cause doctors to refuse treatment to the injured in Arizona so as to avoid the onerous burden of testifying for pennies. Not only will the injured be faced with the prospect of substantially diminished opportunities for medical care, but to fail to modify this Rule will also have the effect of closing the doors to the courthouse for lack of physician testimony to those who will need this support the most. Respectfully, the Sanchez decision represents a substantial aberration from the way parties have treated physician testimony in the past. Accordingly, I ask the Justices of this Court to ensure that the injured in Arizona will have access to appropriate medical care, that doctors are not unduly burdened in their practices, and to keep the doors of the courthouse open for the injured. This can only be done by adoption of the changes proposed by this Petition.

    Sincerely, Tom Ryan
    Past Chair of the East Valley Regional Health System/Chandler Regional Hospital
    Past President of the Arizona Association for Justice (2011-2012)

    16 Apr 2014 10:01 AM
    Cole D. Sorenson (Az Bar No.: 013097)
    1411 N. 3rd Street
    Phoenix, AZ 85004
    602-374-8009 (phone)
    602-801-2220 (fax)

    I have been involved in litigation from both the defense and plaintiffs perspective for my entire legal career. I have represented exclusively plaintiffs since 2007. Prior to the decision in Sanchez the payment of expert witness fees was fair to both the plaintiff and the defendant's. If the defendants / plaintiffs wanted to take the defendants / plaintiff's treating physician/expert's deposition they had to pay for that time. Under the present status of law the defendants no longer have to do so. Now in order to get cooperation from their own treating physician / expert the plaintiffs have to pay their expert when the defendants want to take their deposition. This is an unfair burden to the plaintiffs and is a windfall to the insurance companies who are footing the bill. Why do the insurance companies need more protection than they already have? The present status of the law is devastating to the plaintiffs and makes difficult cases impossible to prosecute from an economic standpoint. This leaves the people with the most disadvantages in the most vulnerable position. In fact there are many cases that will not be able to be litigated which will in essence close the courthouse doors to the population that needs the most protection. Level the playing field once again and make each side pay what's fair as opposed to unduly burdening the plaintiff.

    16 Apr 2014 10:17 AM
    Robert D. Bohm (005226)
    2141 E. Camelback Road
    Suite 100
    Phoenix Arizona 85016
    602- 957-7400
    of Counsel - Jones|Raczkowski, P.C.

    Dear Justices:

    I have reviewed the petition of AzAJ seeking to amend rule 26 (b)(4) to provide for payment to treating health care provider’s for their time responding to a subpoena to testify about treatment rendered to an injured plaintiff. I approve and adopt the arguments raised in the petition. I also write to provide additional background about the problem related to the relationship of health care providers and lawyers.

    I am a State Bar Certified Specialist in Injury and Wrongful Death Litigation and since 1983 have represented plaintiffs in personal injury cases. For over 20 years starting in the late 80’s I represented two statewide medical associations. Among the recurring issues effecting physicians were their relationship to the legal system. This area contributed to a changed atmosphere between doctors and lawyers, who often had an adversarial relationship even though they were involved with assisting the same individual. Oft-times doctors had difficulty with lawyers pulling them out of their offices during office hours for the purposes of testifying in personal injury cases. As a result, the physicians were often economically disadvantaged because their office expenses continued even though they were not there seeing patients and therefore earning income. In addition, the patient suffered because their physician was not available and appointments had to be rescheduled.

    As a result of frustration in dealing with these issues, I became involved with the Medical Legal Liaison Committee of the Maricopa County Bar Association and later with a similar committee established by then State Bar Pres. Fritz Aspey. Those committees developed guidelines for cooperation between doctors and lawyers, which included guidelines for payment for health care provider testimony at deposition and trial. These guidelines for payment were reasonable, fair, and uniformly accepted by both the plaintiff and defense bar. Adherence to these guidelines significantly reduced the friction between doctors and lawyers.

    These guidelines provided the framework for the custom and practice of the interrelationship between doctors and lawyers in personal injury claims. Unfortunately, all changed with the case of Sanchez v. Gama, 233 Ariz. 125, 310 P. 3d 1 (App. 2013). The ultimate result of this decision will be that individuals injured through no fault of their own will be twice victimized because doctors may not be willing to help them in accident cases because an insurance attorney will subpoena treating doctors to a deposition because they can, and then not pay them for their time. After a few of these experiences, word of which will quickly spread through the medical community, doctors will simply refuse to provide treatment to accident victims. Plaintiffs’ lawyers will be forced to hire outside experts to review medical records and bills in order to provide the necessary testimony to prove causation and damages in routine injury cases. This will lead to either significantly increased costs of litigation or meritorious cases not being brought because of the costs associated. Ultimately, the defense will also face increased costs because they will now be forced to depose an additional expert witness in order to prepare for the litigation of personal injury claims.

    Sanchez seems to ignore the reality that the testimony of a health care provider in a personal injury case involves mixed questions of fact and law, and that the treating doctors “factual” testimony is based upon the doctors training and experience as a licensed health care provider. Paying a physician as you would any lay witness ignores the realities of the physician’s expertise in treating injury victims. The proposed rule codifies the custom and practice that was in place for my entire practice until the Sanchez decision was announced by the Court of Appeals. The rule is based on common sense, and professionalism. Doctors should be compensated fairly for their time.

    The court should adopt the petition.

    Robert D. Bohm

    16 Apr 2014 02:00 PM
    Jonathan Jamieson (024967)
    Michael Cordova, P.C.
    1700 N. 7th Street
    Phoenix, AZ 85006
    (602) 265-6700

    Dear Justices,

    I am writing in support of the proposed amendment. I have been representing plaintiffs in personal injury matters since I was first admitted to the bar in 2006. In that time, I have litigated many cases, large and small. The uncertainty caused by the current rule in conjunction with the recent Sanchez decision has caused a significant amount of confusion, increased litigation, and increased costs to all parties, including third party witnesses. In practical terms, the current state of the issue presents the following problems:

    1) Who decides what testimony is appropriate for a provider to give as a "fact witness?" The current dynamic prohibits a deposing attorney from asking questions which would require expert testimony unless the witness has been paid reasonable compensation. In the context of a deposition, who makes that determination? An attorney for the defendant might find it too tempting to attempt to cheaply elicit expert testimony. Counsel for the plaintiff arguably does not have standing to raise the objection, as he/she does not represent the provider. It would then be left up to the provider to determine whether a question calls for expert testimony.

    2) At what stage do we determine whether deposition testimony requires "factual" or "expert" testimony? Is it before the deposition? This can lead only to extensive motion practice prior to the deposition of any treating physician for the sole purpose of narrowing down what questions can and can't be asked by the deposing attorney. Do we expect attorneys to work this out during the deposition? If so, what happens when attorneys cannot come to an agreement to classify testimony as "factual" or "expert?" Do we call the court for a ruling and impose on an already over-burdened trial judge? Do the parties postpone the remainder of the deposition until the trial court can rule on it - imposing additional costs and time commitments on everyone involved? Or do we work it out after the deposition with motions to compel and orders to show cause that put these "fact" witnesses at risk for sanctions?

    3) What happens when a "factual" deposition changes to an "expert" deposition? Do the parties go through a deposition transcript - line by line, and then haggle about what constitutes "factual" vs. "expert" testimony? Do we expect trial courts to go through each transcript and itemize the provider's testimony? How much is a line of testimony worth? A page? And who collects for the provider? Do we, again, require them to retain counsel to recoup the costs of 5 minutes of expert testimony? Or does this burden fall on the plaintiff's attorney? At best, this is problematic because plaintiff's counsel has no standing to raise the issue. At worst, it creates a conflict of interest for the attorney, as he/she advocates for a witness.

    The simple fact is that medical providers, in the context of personal injury cases, cannot divide their testimony between "factual" and "expert" testimony. Unlike a good Samaritan who stops by the side of the road to tell an officer how an accident happened, a medical provider can ONLY testify to matters observed when working as an expert in their field. Everything that the provider can testify to is informed by their scientific knowledge, expertise, and experience in treating injured patients. Even a simple question like "what were the patient's injuries?" calls for expert testimony, as injuries are assessed in the context of the physician's experience and training.

    A better result is a rule that recognizes that a medical provider's "factual" testimony cannot be separated from his "expert" testimony, and requires that he/she be compensated appropriately. This has been the custom in Arizona for long before I was practicing, and there is a reason for that: attempting to divorce a physician's "factual" testimony from his/her "expert" testimony creates the myriad of practical problems referenced above, and opens up a whole new world of issues to litigate.

    I have already seen this happening. I am aware of several cases where defense counsel has subpoenaed for deposition the entire list of a plaintiff's treating physicians. This would have been unheard of prior to Sanchez, as custom required payment of the provider's reasonable expert witness fee. However, post-Sanchez, each of these providers has been forced to retain counsel to either defend a deposition or file a motion for a protective order. The rules cannot possibly contemplate such a result.

    The proposed amendment should be approved to eliminate confusion, protect providers from abuses, and minimize unnecessary litigation.


    Jonathan Jamieson

    16 Apr 2014 03:09 PM
    Maren Hanson (bar no. 021361)
    Tobler & Associates, P.C.
    1630 S. Stapley Drive, Suite 200
    Mesa, AZ 85204

    I am writing to add my support to this proposed rule change.

    I have been practicing personal injury law, representing injured plaintiffs, for over a decade. There are already many medical providers in the community who refuse to treat individuals who are involved in medical-legal matters. And there are many more medical providers who will treat these individuals but get abrasive when asked to provide any sort of testimony concerning their care.

    I believe that with the ruling in Sanchez v. Gamma the number of medical providers unwilling to treat individuals involved in medical-legal matters will soar. And as for the remaining medical providers who will provide treatment, when called upon to testify their testimony will be compromised by the resentment they feel towards a legal system that does not respect their professional time enough to provide reasonable compensation.

    I anticipate that one result of Sanchez v. Gamma will be that plaintiffs will have to hire professional witnesses to testify concerning their care and treatment (Let's get real, no plaintiff will want a resentful treating provider on the stand). Despite the common practice of referring to professional witnesses as Independent Medical Examiners, lawyers on both sides of the aisle, plaintiff or defense, will surely acknowledge that professional witnesses are not truly independent. Professional witnesses have biases in accord with who is signing their pay check.

    It benefits everyone (especially the jury) when a treating medical provider, who actually saw a patient and provided care for an injury over time, is able to give testimony concerning that care. The treating medical provider is the medical professional with the most first hand knowledge concerning the matter.

    Lets respect our medical providers by providing them with reasonable compensation for their time. In doing so, we will also encourage them to participate in the medical legal process, bringing better insight and knowledge to it.


    Maren Hanson
    john trebon

    16 Apr 2014 03:35 PM
    John J. Trebon
    308 N. Agassiz
    Flagstaff, AZ 86001-4605

    I practice personal injury and criminal defense in Flagstaff, Arizona. Small or medium size town doctors are not only very busy, but not necessarily as affluent as some big city doctors. In a samall town, it is easy to alienate particular doctors by not treating them in a fair and decent manner. Once alienated, they will steadfastly avoid cases in litigation. IF the doctor is a specialist, then the pool of medical experts for your injured client may have been eliminated of slashed in half. It then likely will be impossible to obtain a treating physician that will cooperate with an injured client in a particular field of specialization.

    Many medical specialists are already frustrated with our legal system. It is unwise and unfair for the legal system to force them to come to depositions or tesfify in court without any compensation for thier time. Of course, they will condlude that they have been treated in an unfair manner and react accordingly. Everyone will suffer as a result. We should remedy the wrong. We receive enough unfair criticism in our business. The criticism flowing from uncompensated, highly-valued medical experts is justified.


    16 Apr 2014 04:21 PM
    Michelle D. Johnson – State Bar #020199
    The Law Offices of Michelle Johnson, PLC
    2415 E. Camelback Rd., Suite 700
    Phoenix, Arizona 85016
    Phone: (602) 553-1010

    To the Arizona Supreme Court:

    I have reviewed R-13-0042, the petition of AzAJ seeking to amend rule 26 (b)(4) to provide for payment to treating health care provider’s for their time responding to a subpoena to testify about treatment rendered to an injured plaintiff. I write to support the arguments raised in the petition.

    I have represented injured individuals for nearly 14 years and the practical application of Sanchez leads to problems on several fronts. Initially, many physicians fear being involved in litigation and as a result, refuse to treat those injured. If, as is likely the case, physicians in the medical community become aware of the fact that they will not be appropriately compensated for their time, the natural conclusion is that even fewer physicians will agree to treat those injured by third parties. Arizonans who need medical care through no fault of their own will be unable to receive it because doctors will understandably not want to spend valuable time getting paid twelve dollars an hour for their testimony. It will then be likely that plaintiffs will need to hire a physician willing to testify will increase the cost of litigation across the board with expert depositions and trial testimony. Additionally, as of now, each question of a treating physician during a deposition must be evaluated as to whether the question is factual only or an opinion of an expert so that the fee can be assessed in accordance with Sanchez.

    Paying the hourly fee for a physician's time has been the long-standing and reasonable practice in this community. Sanchez represents an aberration of the law and an unnecessarily complicating and burdensome issue in personal injury litigation. The petition resolves these issues and therefore should be adopted.

    Michelle Johnson


    16 Apr 2014 04:54 PM
    Michael E. Larkin
    405 W. Franklin St.
    Tucson, AZ 85701
    520 620-6700
    520 620-6702


    Approval of this petition (R-13-0042) is needed. It is needed as soon as possible. The decision in Sanchez v. Gama, though well-intentioned, was misguided. The premise of the decision is that treating doctors are merely fact witnesses for the most part. The premise of the decision that treating doctors are no different than a percipient witness at a car crash is a facile one but false. The premise that treating doctors must bear the burden of an occasional visit to the courthouse as part of a citizen's civic duty is appealing but unrealistic.

    The reality is that a treating doctor is an expert. He is an expert consulted for his expert medical knowledge by the patient. He is an expert when consulted by the patient's attorney. He is an expert when he testifies in deposition or at trial.

    The reality is that the Sanchez decision has the unintended consequence of restricting access to justice for those injured through no fault of their own.
    The Sanchez decision results in increased costs of litigation. These are twin problems that this court has sought to remove from our society. Failure to approve this petition will result in lip-service in policy and the opposite effect in practice.

    Approval of this petition is the most effective and expedient way to undo the error at the heart of the Sanchez decision. The petition recognizes that treating doctors are expert witnesses sui generis. They are a valuable and necessary part of the judicial process.

    Thank you for your attention to this comment.

    Michael E. Larkin

    16 Apr 2014 07:02 PM
    Arthur E Lloyd
    113 E Frontier St
    Payson, Arizona,85541

    I also strongly support R-13-0042. My practice mainly involves medical malpractice cases and serious personal injury. I have to rely on treating doctors to testify as to the treatment they provide to their patients (my clients). I have had several defense attorneys threaten to subpoena treating doctors for their deposition with only the payment of a witness fee. We eventually worked out the arrangements, but I was prepared to pay for the doctor's time myself. I believe doctors will refuse to treat patients if they think they will be forced to participate in the litigation process, and I have had doctors tell me as much...Please consider making this change to the rules

    17 Apr 2014 02:11 PM
    Craig J. Simon, Esq.
    2141 East Broadway Road, Suite 113
    Tempe, Az 85282
    480-745-2454 fax
    Az. State Bar No. 018920

    Having reviewed the Petition by AzAJ to amend Rule 26(b)(4)(C), I hereby write in support of said amendment. I have practiced law for over thirty years, sixteen in Arizona. Throughout that time, there has been an understanding between attorneys and physicians regarding payment of deposition and/or trial fees for treating physician testimony in personal injury cases. Sanchez is poised to end decades of cooperation between the two professions.

    Today, fewer physicians will treat a patient who received injuries due to third party negligence, or if they do provide services, the physician will provide the treatment records and refuse any further participation (currently taking place in a present case.) With the holding in Sanchez, this amount is surely to decrease further. A plaintiff’s treating physician should be considered an expert under Rule 26(b)(4)(C), because not only do they know the client’s history, and are able to evaluate the person on a weekly, monthly, yearly basis, they combine that knowledge with medical journals, and review radiology and other specialty reports to form an opinion on how the injury occurred, what the best form of treatment the patient should receive based on their opinion, the likelihood of future treatment, and permanency of injury. To offer the treating physician a mere $12.00 per hour for their time and effort to participate in litigation, creates an imbalance to a plaintiff’s case because the physician may be disgruntled and refuse to testify. It could also end a physician/patient relationship in order to avoid any further involvement in the case. This creates a future impediment for injured parties to seek recourse through our courts. The only option left for an injured party would be to treat with a ‘designated’ expert who may charge outrageous fees, because the market will be skewed in their favor. This could be detrimental to a plaintiff’s claim, as fees could inflate, ballooning the cost of treatment.

    The recommended amendment to Rule 26(b)(4)(C) will allow treating physicians to receive reasonable compensation for their litigation services, and help keep open an already closing door. It is respectfully requested that the court adopt said petition.

    18 Apr 2014 01:29 AM
    William S. Chick
    4500 N. 32nd Street, Suite 201C
    Phoenix, AZ 85018
    BAR# 003387

    Please accept this comment in support of this rule change. The doctors that treat people who are harmed by the conduct of others are often very important witnesses on behalf of their patients. Generally they are willing to participate in the lawsuit process as part of their professional responsibility to their patients. They deserve to be appropriately compensated for their time and trouble, and the court rules should reflect the respect we have for these medical professionals. Due to a recent court decision, some unscrupulous insurance companies, and unfortunately the attorneys they hire to defend the harmdoers, are trying to undue the spirit of medico-legal cooperation which has existed for decades by paying only the fee established for lay witnesses. The rule will codify the previously prevailing practice and prevent abusive and disrespectful tactics.

    18 Apr 2014 01:52 PM
    Matthew P. Millea
    7272 East Indian School Road
    Suite 203
    Scottsdale, AZ 85251
    (480) 481-0616
    (480) 481-9021 fax
    Bar #011620

    As attorneys, we have an ethical and moral duty to minimise the inconvenience and expense witnesses incur as a result of their involvement with our cases. Subpoenas should not be used as weapons of oppression or intimidation. The fact is that physicians who treat trauma, fractures and/or chronic pain frequently are asked to testify about their treatment in legal proceedings. Such requests can be a significant burden for the physician. They have substantial overhead to cover. They have many patients demanding their time and attention. And they frequently find their involvement in litigated cases to be less than pleasant. No one goes to medical school so they can be cross examined on a regular basis without compensation.
    Physicians are asked to testify in personal injury cases much more than the average citizen. They should not be required to bear a disproportionate cost simply because they agree to treat patients who may have legal claims concerning their injuries. The system we had in place by agreement prior to the Sanchez [i] [/i] decision worked well. Juries and judges need to have the benefit of the best first-hand medical testimony available. I support the petition.

    18 Apr 2014 03:02 PM
    Ryan Skiver
    Warnock MacKinlay &, Carman, PLLC
    7135 E. Camelback Rd., Ste F240
    Scottsdale, AZ 85251
    P: (602) 381-6669
    F: (602) 381-6560
    E: rskiver@lawwmc.com
    State Bar #024552

    Dear Justices:

    I have read the petition of AAJ seeking to amend rule 26 (b)(4) to provide for payment for a treating physician's time. I agree with the arguments raised in the petition. Due to the decision in Sanchez this has become a significant issue. It is hard enough to find doctors who are willing to testify on behalf of injured parties, because of the time they have to spend responding to Defense Counsel. Then when the right to receive fair compensation for their time was taken away, it destroyed that possibility even more.

    The only ones who will be harmed by this new rule are injured victims who may be twice victimized because doctors may not be willing to help them in accident cases because an insurance attorney, will subpoena them to a deposition because they can, and then not pay them for their time. After a few of these experiences, the doctors will simply refuse to provide treatment to accident victims.

    The proposed rule codifies the custom and practice that has endured for decades that is based on common sense, and professionalism. Doctors should be compensated for their time at a rate that is commensurate with what they could earn if they were working at another aspect of their profession. Punishing them with a few dollars will only work to deter their help in the justice process.

    Thus, I believe that the court should adopt the petition

    Ryan Skiver

    19 Apr 2014 03:52 PM
    Douglas B. Levy
    Douglas B. Levy, P.C.
    283 South Scott Avenue
    Tucson, AZ 85701
    520-545-7200 (Phone)
    520-545-7201 (Fax)
    Az Bar No. 016623

    Dear Justices:

    I write in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at their professional rate for time testifying in deposition. I have solely represented more than 200 Plaintiffs in personal injury, medical malpractice, products liability, premises liability and insurance bad faith cases in New York and Arizona since 1988. As such, I have the privilege of working closely with the treating doctors of my injured clients on a weekly basis.

    I have carefully read all of the above comments in support of this Petition. I agree with all of them. They clearly state the case for why this amendment needs to be made as soon as possible. If I had any different experiences or thoughts to add I would gladly share them. Of course the formal Petition submitted by Mr. Trachtenberg and Mr. Plattner is outstanding, as are the comments above.

    24 Apr 2014 12:49 PM
    A.J. Mitchell
    14555 N. Scottsdale Rd., Ste. 170
    Scottsdale, AZ 85254-3485

    As a personal injury attorney in practice for 14 years in Arizona, I am writing in support of R-13-0042. As it currently stands, it exceedingly difficult to get a physician to treat a person who was involved in an accident. The physician does not want to be hailed into court, especially for a de minimis amount. The opportunity cost to the physician is too great; that is, he could be making over 100 times the amount by not-testifying, and instead, treating patients. Accordingly, the incentive is too great to the physician to decline representing a person, who throught no fault of their own, was involved in a collision. The policy should be to encourage the doctors to treat such patients... not reject them. In a couple of our cases that the defense counsel is sending subpoenas to the treating physicians to appear for deposition testimony, paying them merely the $12 witness fee. No doctor could legitametly continue their practice if they are hailed into court and forced to forgo their typical fee, merely for treating a person who has a personal injury claim.

    24 Apr 2014 01:09 PM
    Jo Ann Nieme
    Anapol Schwartz
    8700 E. Vista Bonita Dr., Ste. 268
    Scottsdale, AZ 85255-3203

    Dear Justices:

    I write in support of this Petition. Our firm represents individuals who have suffered catastrophic injuries as a result of defective products. Our clients have been severely burned or have been rendered permanently brain injured or quadriplegic. Due to the nature of their injuries these patients are treated acutely by many of the finest physicians at facilities like Barrows Neurological Institute and Maricopa County MC Burn Center. These physicians are not litigation experts. They are busy, "in-the-trenches" clinicians. While these treating physicians sincerely want to help their patients, they should not be forced to do so without being fairly compensated for their time. Not doing so will result in their unwillingness -- due to time and financial constraints -- to the detriment of very seriously injured patients.

    The recommended amendment the Rule will allow treating physicians to receive reasonable compensation for their litigation services.

    It respectfully requested that the Court adopt the Petition.

    Jo Ann Niemi

    24 Apr 2014 01:10 PM
    Eric W. Robinson
    Escamilla Law Group, PLLC
    2950 North 91st Avenue, Ste C-103
    Phoenix, AZ 85037
    (623) 877-3600
    (623 877-3606
    AZ Bar No. 029954

    I write in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at an appropriate rate for time testifying in deposition.

    I have read through the comments and am likely the most junior attorney to comment on this petition. As such, I feel I have a unique perspective on its probable consequences.

    Though I have only represented injured plaintiffs for a relatively short period of time, I am acutely aware of the difficulties my clients often face when seeking medical attention as a result of a third party's negligence. Many medical providers already refuse to see patients who are involved in an accident. I fear that within a short amount of time, after enough providers have been compensated at only $12.00 per hour for a significant amount of their time, the remaining providers will follow suit and cease treating accident victims.

    I encourage the court to adopt the petition to ensure that treating providers are not unduly burdened, and so that injured parties may have continued access to the appropriate medical care.

    Thank you,
    Eric W. Robinson

    24 Apr 2014 01:16 PM
    Kenneth P. Gerber
    Gerber Injury Law
    12133 W. Bell Rd., Suite 202
    Surprise, AZ 85378
    866-809-8076 (fax)
    AZ Bar No.: 027387

    I am writing in support of Petition R-13-0042 to amend Rule 26(b)(4)(C). I have practiced Plaintiff's personal injury for almost 20 years. I practiced personal injury in Florida before moving to Arizona in 2009. I have found through the years, and in both states, that finding physicians to treat patients who have a personal injury claim is difficult enough without the added hurdle that they may be called to testify without being compensated for their time. With the current status of the law based on the recent ruling unscrupulous defense attorneys and insurance companies have an opportunity to make this an even bigger issue. Should the law stand, we are likely to have fewer and fewer physicians who are willing to stand up for patients injured and making a legal claim for just compensation. This will only further disadvantage our clients, who are already fighting an uphill battle against large corporations.

    24 Apr 2014 01:17 PM
    Michael Rich
    Burke Panzarella Rich
    2198 E Camelback Rd, Ste 375
    Phoenix, AZ 85016
    602-222-4848 phone
    602-222-4860 fax
    Bar # 015979

    I have read the Petition by AzAJ to amend Rule 26(b)(4)(C). This amendment needs to be approved.

    This is my twentieth year practicing personal injury law in Phoenix. Physicians who have treated injured parties are often called to testify in court proceedings. These physicians have been considered “experts” and have been compensated for their time. After the holding in Sanchez, treating physicians are no longer compensated fairly for the time they spend on legal matters. They are considered lay witnesses and compensated $12 an hour for their time. This is patently unfair for the plaintiff. Before the ruling in Sanchez, many physicians did not want to treat innocent injured parties because of potential legal matters. Many preferred to stay out of the potential conflict which often comes with litigation. However, other physicians would agree to treat victims who needed care and would be willing to testify if it was necessary. And, when it was necessary, the doctor was often pulled out of his office for hours or even days, but he was compensated a fair hourly rate commensurate with his or her normal hourly rate. This only seemed fair. Sanchez mistakenly changes all that. The treating doctor is no longer compensated for his time. Yet, on the other hand, the defense expert – a doctor hired to comment on the victim's care – can charge his or her normal hourly rate. The playing field is now no longer level. At this point, even doctors who were willing to get involved in legal matters prior to Sanchez will no longer be cooperative – and who would blame them.

    The proposed amendment to Rule 26(b)(4)(C) needs to be adopted. It will allow treating physicians to receive reasonable compensation for their involvement in litigation. Fairness, and ultimately justice, is at stake.


    24 Apr 2014 01:24 PM
    H. Christian Bode
    Bode & Collins, P.L.C.
    7377 E. Doubletree Ranch Road #210
    Scottsdale, AZ. 85258
    480.355.5020 phone
    480.355.5021 fax
    Az. Bar # 007346

    Dear Justices:

    I write in support of the proposed amendment to Rule 26 that would require medical professionals to be compensated a reasonable fee for their time testifying. I have been in practice for almost 32 years and for the first twenty years of my practice represented primarily defendants in personal injury litigation. The last ten years of my practice has been representing plaintiffs in personal injury and medical malpractice cases. In short, I know this issue from both sides of the aisle.

    Until Sanchez v. Gama, the custom throughout the state was to reasonably compensate doctors for their time when testifying. Whoever noticed the deposition or called the doctor at trial paid the doctor a for the doctor's time. The system worked great and the only issue that ever arose was determining what a "reasonable fee" was.

    Since Sanchez, I have had personal experience where my clients' doctors have fired them as patients when they learn that the client is pursuing litigation. This is because they do not want to be forced to give testimony--relevant, material, testimony--for free. And who can blame them? Also, since Sanchez, doctors are now refusing to speak with lawyers informally about the patient's/client's condition for fear of being called as a witness for no compensation. As a result, we have had to hire at great cost independent physicians to review the first doctor's records and then give testimony as to the reasonableness and necessity of the first doctor's care and prognosis for the patient/client. The defendants then pay the second doctor for the doctor's time to take a deposition because the second doctor is now an "expert" hired for the litigation. These combined charges far exceed the reasonable fee typically and previously afforded the treating physician.

    Now, instead of having a system that worked well for at least 30 years, we now often are forced to present testimony of an arguable "hired gun" working off of second-hand reports instead of the neutral doctor with the greatest knowledge of the client's/patient's injuries and their relationship to the defendant's negligent conduct. That is no way to run a system of justice.

    Rule 26 should be amended to incorporate the practices that worked so well for the last thirty years.

    24 Apr 2014 01:29 PM
    Samuel Saks
    3003 N. Central Avenue
    Suite 600
    Phoenix, AZ 85012
    Tel. (602)200-1022
    Fax. (602)200-0106

    I write in support of R-13-0042. Doctors should not have to suffer because they routinely become "witnesses" in practicing medicine. Injured patients should not be turned away due to legitimate concerns from doctors that treatment will lead to business interruption. It is the litigants that should bear the financial costs associated with their litigation.

    24 Apr 2014 01:30 PM
    Eric S. Shapiro (AZ Bar #018915)
    Eric S. Shapiro, Attorney at Law, P.L.C.
    3030 N. Central Avenue, Suite 802
    Phoenix, Arizona 85012
    (602) 274-7400
    fax (602) 274-8585


    The majority of my legal practice involves handling personal injury cases arising from motor vehicle collision. My clients often suffer significant injuries which require extensive medical care. During my sixteen years of practice, I have discovered that medical providers are often reluctant to treat an individual that is injured as a result of a motor vehicle due to the fact that the provider does not want to become involved in potential litigation (this reluctance includes my clients' primary care physicians that have treated clients for over a decade). The recent ruling in Sanchez v. Gama, limiting treating providers to a $12.00 witness fee, will significantly reduce the number of medical providers that remain willing to treat collision-related injured parties. The increased level of reluctance will be directly tied to the fact that medical provider will be pulled out of his/her practice for half of a day, a full day, multiple days, to appear for a deposition (resulting in lost revenue of thousands of dollars as the provider will be unable to see patients while in depositions), while only compensating the provider's lost time from work at the rate of $12.00/hour.

    At the same time, consider the fact that defense counsel's "retained expert witness" medical provider (whom often times no longer has a medical practice) is allowed to charge literally thousands of dollars to appear for a similar deposition. This provider, whom has interjected him/herself into the litigation, receives a greater consideration for their time than the treating professional? There simply is no justification for this difference, and this difference is harmful to society's needs.

    Finally, it has come to my attention that defense attorneys are setting depositions with treating medical providers, paying the providers $12.00 for their attendance, spending 30 minutes of the deposition focused upon factual issues (the treatment/injuries), and then use the remaining 3.5 hours to harass the medical provider. The current state of the rule, and its interpretation in Sanchez v. Gama, is a license for abuse of the medical profession and it is casting a dark shadow upon the legal profession.

    The proposed rule change will address these issues, ensure that medical providers in Arizona will remain willing to treat individuals that sustain injuries as a result of motor vehicle collisions, injuries on the job, or elsewhere, and improve the overall reputation of the legal profession.

    24 Apr 2014 01:34 PM
    Lawrence K. Lynde
    4506 N. 12th St.
    Phoenix, AZ 85014-4246

    I write in support of this petition. Treating doctors invariably provide expert testimony when deposed or otherwise called upon to testify. The Sanchez v Gama decision is contrary to the long-accepted/acknowledged practice in the personal injury community that treating doctors, like other expert witnesses, are entitled to be compensated for their time. This practice most particularly applies to treating doctors. Treating these doctors solely as fact witnesses is, respectfully, a fiction that penalizes these those doctors who help/treat injured people. It is inevitable that doctors will begin to decline to treat injured people if they know they may later be subpoenaed and deposed for 1-4 hours without being compensated for their time.

    Experts of all types are required to be compensated for their time in testifying. The notion that treating doctors are not entitled to the same treatment is contrary to long-standing practice and common sense. The proposed rule codifies the custom and practice that has existed since long-before I began to practice 25+ years ago. I respectfully urge that the proposed rule change be adopted.

    Lawrence K. Lynde

    24 Apr 2014 01:59 PM
    Frank I. Powers
    Harris Powers & Cunningham
    361 E. Coronado
    Phoenix, AZ 85004
    602-271-9344 (phone)
    602-252-2099 (fax)
    AZ Bar No. 013369

    Physicians who make themselves available and testify in litigated cases should be fairly compensated for their professional time. Forcing them to miss time from there practice and lose practice income without reasonable compensation is untenable. I therefore support the proposed petition.

    Frank Powers

    24 Apr 2014 03:32 PM
    Nicholas A. Moceri
    7550 E. Addis Av.
    Prescott Valley, AZ 86314


    I write in support of the petition. I have represented plaintiffs in personal injury cases for 38 years, 35 in Prescott, AZ. In my small town I have watched the number of physicians willing to treat injury victims dwindle because of the hassle involved in litigation. Doctors have even refused to treat existing patients for accident-related conditions. Continuing under the Sanchez opinion will reduce that number even further. Doctors have a finite amount of time to devote to patients' concerns, and uncompensated time will be done away with.

    There is no upside to the system mandated by the Sanchez opinion. The opinion is premised on a deposition where no opinion questions are asked. Sanchez failed to recognize that there is little, if any, reason to depose a treating doctor without asking opinion questions. Except in the rare cases of indecipherable medical records, all the factual information regarding plaintiff's medical treatment already is in the hands for the defense attorney in written form.

    I agree with the comments above. There needs to be a clarification of the obligation to fairly compensate medical witnesses and protect them from meaningless infringements on their time.


    24 Apr 2014 04:19 PM
    William C. Bacon
    Goldberg & Osborne
    33. N. Stone Ave. 900
    Tucson, AZ 85701
    Fax 520-620-3991
    State bar No. 004895

    I am writing in support of the petition to amend Rule 26(b)(4)(C). I have observed a clear trend in the last few years where statutes and appellate opinions seem to be eroding the idea that the courthouse should be open to everyone. The Sanchez decision will effectively limit injured parties' ability to present evidence from their treating physicians. If those doctors are not reasonably compensated for their time in depositions, they will either refuse to get involved in treating patients when the case might end up in litigation or the injured party will have to compensate the physician for the time spent in the deposition noticed by the defense. Either scenario potentially limits access to the courts. The proposed changes will keep the courthouse available to everyone, not just those with the resources to seek justice.

    24 Apr 2014 04:23 PM
    Noah J. Van Amburg
    Van Amburg Law Firm, P.L.L.C.
    145 S. 6th Ave.
    Tucson, Arizona 85701
    T: (520) 323-4559
    F: (520) 323-4595
    E: njv@azbar.org
    AZ Bar No. 022373

    I have reviewed the AzAJ petition to amend Rule 26(b)(4)(C) and I would like to provide my support for the proposed changes. Any attorney involved in the litigation of injury claims---whether an insurance defense attorney, a plaintiff's attorney, or a sitting trial judge---knows that compelling treating physicians to testify without reasonable compensation for their time has enormous consequences that transcend the partisan interests of our bar community. Many attorneys will never feel free to comment on the issue or wish to do so because of the short term gain the current rule provides them in the adversarial system. However, it is difficult to imagine that, in a moment of anonymous candor, any but the most dogmatic would not admit that the rule as written and interpreted by Sanchez does significant harm that is both immediate and long term in nature.

    As discussed by Geoff Trachtenberg and Richard Plattner, as well as many of the comment authors above, our system of justice relies upon participation by various persons at different levels of commitment. A witness who observes a collision may often be called upon to give a statement over the telephone, rearrange his or her work schedule in order to appear at a deposition at a time convenient for the attorneys, and possibly testify at a trial at a time largely dictated by the court. Fortunately, it is very unlikely that any one witness like this would have to give up such a significant amount of time on a regular basis.

    In contrast, other individuals are likely to have more forced contact with the legal system as a witness. My father was a school superintendent and school headmaster. In that role, he was forced to attend depositions regarding children's injuries or other matters on a far more regular basis than those in many other professions. The fact that our legal system forced him to spend significant time being subject to examination without any concern for his time, his schedule or the collateral costs, was a source of his repeated complaints.

    Medical providers, more than any other individuals, bear the brunt of our system's evidentiary consequences. Our rules require the testimony of treating physicians under most circumstances in order for claimants to meaningfully exercise their remedial rights. The right to depose those treating doctors comes as part and parcel of that requirement under our rules. It has always been the case, even before Sanchez, that my clients were informed by certain physician's groups that the doctors would not accept a referral to their medical office from another doctor because of the manner in which the victims were injured; these victims were informed that because the injury could lead to a claim or litigation, the doctors would not see the prospective patient. If Rule 26(b)(4)(C) is not amended in conformity with this petition, the frequency of these refusals to provide care to injury victims will undoubtedly increase. If that happens, we as members of the legal profession will be responsible for the further victimization of these individuals who rely upon the legal system for help.

    It is my hope that the greater good of the justice system is the perspective from which this proposed change is viewed. If so, I am confident that the correct decision will be reached regarding this petition.

    Noah J. Van Amburg

    [i] [/i]

    24 Apr 2014 04:45 PM
    Randall A. Hinsch
    316 E. Flower St, P.O.Box 36570
    Phoenix, AZ 85067
    Ph: (602)266-2002
    FAX: (602)266-6908

    I am a certified specialist in Personal Injury and Wrongful Death. The Sanchez ruling punishes doctors as well as injure parties. Without be allowed to be properly compensated for their time doctors will stop providing treatment to those people injured in accidents. It in effect will deprive a class of people access to the courthouse. I wholeheartedly endorse this petition.

    24 Apr 2014 05:54 PM
    Samuel P. Moeller
    Law Offices of Samuel P. Moeller, PLLC
    1411 N. 3rd St
    Phoenix, AZ 85004
    (602) 374-8009
    (602) 535-1201 fax
    AZ Bar No. 025270

    Dear Justices:

    I am writing in support of R-13-0042. I have read the above comments and agree with all of them. The decision in Sanchez puts a very unfair economic burden on plaintiffs. Once a victim, twice a victim. Most plaintiffs are already in a disadvantaged economic situation as a result of the underlying tort giving rise to the need for litigation. The decision in Sanchez just further pours salt in the wound. Sanchez is clearly an unfair burden to the plaintiffs and is a windfall to the insurance companies.

    I believe the court should adopt the petition.

    Sam Moeller

    24 Apr 2014 05:57 PM
    Terrence A. Jackson
    1670 E. River Rd., Ste. 200
    Tucson, AZ 85718-5970

    this is support of R-130042. There are already doctors who are reluctant to treat accident victims for fear of being dragged into litigation, or who gladly treat the victim, but resist cooperating in the patient's claim process. Historically, most treating physicians have agreed to testify if upon payment of an amount commensurate with what they would have earned while seeing patients during the time they are required to be out of their practice. This system worked pretty well, with plaintiff's paying the doctor for his report or direct testimony and defendants or their insurers payin the doctor or his time in discovery deposition. The recent court decision requiring doctors to appear upon subpoena, typically by defendants, with only the $12 subpoena fee as compensation is grossly unfair to the doctors and will make them wary of treating accident victims. More often, this situation will have doctors treat the victim but refuse to testify on the plaintiff's behalf as to the reasonableness and necessity of the treatment. This is unfairly prejucial to injured victims and in some cases will make it impossible for them to receive fair compensation in our judicial system. It will be a windfall for the defendants who caused the harm and their insurers. Please amend the rule to cur this situation. Thank you for considering my comments.

    24 Apr 2014 07:28 PM
    Carolyn Kaluzniacki
    Law Office of Carolyn Kaluzniacki
    2700 North Central Ave, Ste 1400
    Phoenix, AZ 85004
    State Bar #004991

    To: The Arizona Supreme Court:

    I write in support of Amendment R-13-0042 to Rule 26(b)(4) which will reinstate the common practice of allowing reasonable compensation for physicians who testify about care they provide to patients and about the injured patient’s condition. This long- standing, reasonably functional practice was abruptly barred by a recent court decision that was ill advised and needs immediate correction.

    Doctors are called on to save lives and provide care when injuries occur and therefore have unique observations relevant to litigation, criminal or civil. Sometimes they risk their own lives to save patients. Generally they make a good living. But if we force them to testify for free or for $12 whenever they provide care in injury cases that result in litigation, they may be less willing to jump in and provide care in difficult cases and charity cases and they will become more terse, resentful and uncooperative as witnesses. More than most other professions, doctors, particularly certain doctors, such as trauma surgeons, anesthesiologists, ER doctors and others are called upon to save lives and to also testify in the ensuing litigation.

    A close friend of mine who was a trauma surgeon used to ask me what a fair charge would be in the many cases he was called upon to testify—criminal and civil. He never made as much testifying as he made in surgery. He preferred to have his free time instead of waiting around to testify and to be berated or bullied by attorneys. He felt a duty to testify. He knew it was important to the patient, to society and to our judicial system.

    We need doctors as caregivers and we also need their observations as witnesses of events that inevitably result in litigation. The long-standing practice of reasonable compensation for these special witnesses should be reinstated.

    I urge you to adopt the proposed amendment.

    Carolyn M. Kaluzniacki
    Carl Piccarreta

    24 Apr 2014 07:39 PM
    Carl Piccarreta
    145 S. Sixth Ave.
    Tucson, AZ 85701
    007151 (Bar number

    I write in support of Petition R-13-0042 amending Rule 26(b)(4)(C).

    Physicians', like attorneys, stock in trade is their time. The Sanchez opinion greatly discourages any physician from treating an injury victim for fear such treatment will take one away from his/her practice for the cost of a witness fee for both deposition and trial--$12.00. A significant percentage of physicians are already reluctant, or outright refuse, to treat folks who may get involved in litigation. The Sanchez Rule will, in fairly short time, dramatically raise that percentage effectively denying access to justice to many of our innocent fellows. That is not justice. That is not the American legal system.

    I urge your favorable consideration of this important, and fair, Rule change.
    Thank you,

    24 Apr 2014 10:21 PM
    Bernard E. Grysen
    806 River
    Spring Lake, MI 49456-1953

    I support this rule change. Treating physicians and providers deserve to be appropriately compensated for their time. The court rules should reflect the respect we have for these medical professionals. The rule will codify the previously prevailing practice and prevent abusive and disrespectful tactics.

    25 Apr 2014 08:58 AM
    Robert N. Edwards
    2150 3rd Ave., Ste. 300
    Anoka MN 55303-2296

    Dear Justices;

    I have reviewed the Petition in this matter and would like to share with you my perspective as an attorney practicing in Minnesota and Arizona. Rule 45.03(d) of the Minnesota Rules of Civil Procedure states:

    Compensation of Certain Non-Party Witnesses. Subject to the provisions of Rules 26.02 and 26.03, a witness who is not a party to the action or an employee of a party [except a person appointed pursuant to Rule 30.02(f)] and who is required to give testimony or produce documents relating to a profession, business, or trade, or relating to knowledge, information, or facts obtained as a result of activities in such profession, business, or trade, is entitled to reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents.

    This Rule, which has been in effect for as long as I've been practicing (34 years) works well. The present state of affairs in Arizona following the Gama decision will have a very detrimental effect on the ability of injured people to obtain the best medical care. The doctors who routinely treat injured people will quickly learn that $12 plus mileage is a bad deal for them and will simply stop treating accident victims.

    Respectfully Submitted;

    Robert Edwards
    Anoka, Minnesota

    25 Apr 2014 12:38 PM
    Paul G. Hofmann
    7440 N. Oracle Rd., Bldg. 5
    Tucson, AZ 85704-6379
    (520) 797-1041
    (520) 797-1491 fax

    As many who are familiar with personal injury practice know, it is already difficult to find doctors who will treat those who've been injured in accidents. But at least, prior to the Sanchez decision, the providers who agreed to treat accident patients could rely on being properly compensated for the additional time required for their involvement in litigation. Moreover, paying a professional for their time has never, until now, been controversial.

    This rule change is critically important to ensure that those injured through no fault of their own get proper care, and, hopefully, a just outcome.

    I strongly urge you to adopt the rule change.

    Paul Hofmann

    25 Apr 2014 12:43 PM
    Kent Hammond
    Law Offices of Rudolph & Hammond, LLC
    8686 E. San Alberto Drive, Suite 200
    Scottsdale, AZ 85258
    Phone 480.951.9700
    Fax 480.951.1185
    State Bar #015100

    Dear Justices:

    I have read all of the comments in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure and agree with all of them. The recommended amendment to Rule 26(b)(4)(C) will continue the long standing practice of allowing treating physicians to receive reasonable compensation for their time testifying for their patients. The Sanchez decision has adversely affected that practice and as noted above, has resulted in the unintended consequence of restricting access to justice for those injured through no fault of their own. If a change is not made, doctors will simply refuse to provide treatment to accident victims. In fact, it has already started to occur. Thus, it is respectfully requested that the court adopt the petition.


    25 Apr 2014 05:10 PM
    John M. Curtin
    Robbins & Curtin
    301 East Bethany Home Road, B-100
    Phoenix, AZ 85012
    (602) 285-0100

    It might seem somewhat counter-intuitive that so many of the people writing to support this change are the very people who will have to write checks to doctors to reimburse them for their time, if this passes. Why are trial lawyers petitioning for a rule that will cost them more in advanced costs?

    The answer is quite simple. If doctors are NOT fairly reimbursed for their time as witnesses they will not treat patients who suffer injuries that might result in litigation. There are already a substantial number of orthopedic surgeons and neurologists and neurosurgeons who screen out patients based on whether they have an injury claim. This has been the case for many years. Most doctors do not like participating in the litigation process. They do not enjoy cross examination. They do not like having their treatment costs questioned. Many would prefer not to take time away from treating patients to respond to give depositions or testify at trial. So they don't treat accident victims. This has been true even when the system provided compensation. What will happen is compensation is taken away>

    Why would any doctor in their right mind put themselves in a position to be forced to respond to a subpoena and take time away from a busy practice for $12? Who will willingly sit outside a courtroom cooling their heels waiting to testify, only to be told "come back tomorrow we didn't get to your testimony." If lawyers don't pay for the doctors's time, they will not feel as inclined to respect it. Moreover, one can anticipate that opposing counsel might deliberately abuse a doctor who is testifying for an opponent by wasting their time and causing inconvenience in order to "sour" the witness on litigation.

    The reality is that we need doctors as witnesses more than they need us. Cases cannot be processed without someone to answer key medical questions. Is this injury permanent? Was it caused by the accident? Was the decedent of sound mind? Was the psychiatric condition a mitigating factor? Without these answers cases grind to halt. It might be possible to substitute hired experts. But that hardly achieves a cost savings, and it does nothing to prevent doctors from refusing injury claimants as patients to avoid being subpoenaed as percipient witnesses.

    Then there is the issue of fundamental fairness. It is not fair to treat a physician like any other percipient witness. Doctors have training and expertise which renders even their perceptions a matter of expert opinion. They have studied to develop this expertise that informs their perceptions. While a lay person sees a pale sweaty man in his 50's, massaging his left shoulder the physicians sees the characteristic posture of a man having a heart attack. Then there is the issue of the scale of the burden. Most of us see one or two accidents in our life. A busy doctor will treat dozens of accident victims in a year. While we might face being subpoenaed as a percipient once in our lives, a doctor who treats accident victims could be subpoenaed once or twice a month. Over time this is a huge burden to expect a volunteer to carry.

    For the reasons above I support the petition for rule change whole-heartedly

    25 Apr 2014 06:35 PM
    Clague Van Slyke, III
    2401 E. Speedway Blvd.
    Tucson, AZ 85719

    I am commenting in support of this rule change in light of the Sanchez opinion that changed long standing practices. I have practiced plaintiff personal injury law in Pima County for over 30 years. I have been a member of the Civil Rules Committee of the State Bar and am a former President of the Arizona Trial Lawyers Association.

    The law post Sanchez creates a loop hole that punishes one group of expert witnesses in personal injury litigation - the plaintiff's treating doctors. Testimony from a medical professional is required to prove a plaintiff's injury claim. Treating doctors who testify based on their observations and treatment offer their expertise when they opine on issues such as causation and prognosis. Many providers already refuse to treat accident victims but the Sanchez opinion increases the likelihood that more providers will refuse to provide necessary treatment. It is frustrating enough to have suffered an unforeseen injury but to then struggle to obtain treatment only adds an additional burden. Many of my clients meet their doctors for the first time on a gurney in the emergency room prior to surgery. They are not seeking to become involved in litigation- simply practicing their profession. Do we want to discourage doctors from rendering help for fear of spending unpaid hours in the court process?

    Most lawyers in Pima County - defense and plaintiff - recognize the hardship imposed by Sanchez and pay doctors a fair hourly rate for their testimony. However, it is only a matter of time before insurance carriers instruct their lawyers to ignore longstanding practices of professional courtesy and in turn poison relations between the medical and legal community. It is my understanding that some defense firms and carriers are already using the Sanchez rule to harass and burden certain doctors to discourage them from treating accident victims.

    This rule change would help level the playing field. Currently the defense practice is to retain medical experts who tend to demand significant fees to testify or be deposed. On a recent case I was quoted an hourly fee of $1500.00 to depose an orthopedic surgeon who conducted a defense medical exam. My treating orthopedic surgeon was willing to testify for $400.00 an hour. Under the Sanchez opinion the disparity of $12.00 total versus $1500.00 an hour only highlights the need for this rule change. Litigation is costly enough and the bar decries how the justice system is pricing people out of the system. Permitting the system to be further tilted and less equitable will only accelerate these disparities.

    Clague Van Slyke, III

    28 Apr 2014 11:10 AM
    Danny Adelman
    Adelman German, PLC
    8245 N. 85th Way
    Scottsdale, AZ 85258
    480-607-9166 (T)
    480-607-9031 (F)
    AZ Bar No. 011368

    I strongly support this amendment. Physicians should be allowed to charge reasonable professional fees for their time testifying. There are so many disincentives that physicians already face in deciding to care for people who have been injured in accidents. They should be paid a reasonable professional fee when they have to take time away from their practices to testify. Many physicians already refuse to care for people who are injured in accidents. The last thing the law should do is provide a further disincentive by telling these physicians that they will be paid virtually nothing for their time. It places an unfair burden on the physician, and unfairly prejudices people who were injured through no fault of their own. The Rule change would afford the proper respect to these professionals, and would even the playing field for litigants.

    28 Apr 2014 02:06 PM
    Thomas A. Burnett
    1744 South Val Vista Drive, Suite 208
    P. 480-347-9116
    F. 480-347-9142

    I write in support of R-13-0042. My practice focuses on plaintiff's personal injury cases. I join in the concerns that so many others have voiced: If a medical doctor can be compelled to leave his or her practice for hours or days at a time to give testimony for $12.00 plus mileage, why would medical providers continue to treat patients who were injured as a result of third-party negligence? The Sanchez decision, if left controlling, will likely result in the polarization of the relationship between injured parties and their treating doctors. I support R-13-0042.

    28 Apr 2014 03:42 PM
    Darren M. Clausen
    Clausen & Moore Law Firm
    4578 East Camp Lowell Drive
    Tucson, Arizona 85712
    Phone (520) 327-7113
    Fax (520) 327-3414

    Dear Justices:

    I am writing in support of Petition R-13-0042 and the proposed change to Rule 26(b)(4)(C), Arizona Rules of Civil Procedure.

    Plaintiffs in personal injury and medical malpractice matters rely on the testimony of medical providers to present their damages case to a jury at trial. Many physicians are reluctant to treat patients injured as a result of a motor vehicle accident or other tort for fear of being hauled into court to give testimony. Here in Tucson, the largest orthopedic surgeon group will not treat patients if they have been injured due to negligence, and this was even before Sanchez v. Gamez. If this rule is not adopted, it will have a chilling effect on an injured person’s access to medical care, as physician’s will not want to treat patients if they are at risk of being subpoenaed for a four hour deposition (during office hours), only to receive a $12.00 check for their time.

    Under the court's holding in Sanchez v. Gama, defendants can compel plaintiff's treating physicians to appear for deposition without compensating them for their time lost in medical practice. What professional would willingly subject himself to such risk? The result of the court's holding in Sanchez will be that many, if not most doctors, will simply refuse to treat patients who are injured due to a third party’s negligence.

    The new rule will fix this problem created by the Sanchez holding, allowing victims of third party negligence to receive the care they need and allow health care providers to treat the injured, no matter what the source of injury, and be compensated for their time in deposition and trial commensurate with their education, training and normal rate of pay.

    Thank you for your consideration.


    28 Apr 2014 03:46 PM
    Nathan C. Cooley
    1744 S. Val Vista Dr.
    Suite 201
    Mesa, AZ 85204
    T: (480) 214-4741
    F: (480) 240-1340
    Email: nate@ncooleylaw.com
    State Bar No. 024678

    I have reviewed petition R-13-0042 pertaining to Rule 26(b)(4)(C), Ariz. R. Civ. P., and the proposed amendments are critically necessary to prevent tort victims from having fewer treatment options.

    If the rule is not changed, the Sanchez opinion will dictate that medical professionals who treat injured victims will be compensated for their testimony and cooperation only a fraction of the wage they expect and normally earn in their practices.

    With this compensation structure in place, common sense says that fewer and fewer medical professionals will be willing to treat patients whose injuries may have been caused by a third-party. This outcome is not good for tort victims.

    The rules should be drafted and interpreted so as alleviate unnecessary hardships for litigants and to treat fairly as many parties as possible. In my humble opinion, the proposed amendment accomplishes this goal.

    Thank you for the consideration.

    Nate Cooley


    28 Apr 2014 06:29 PM
    Elliot A. Glicksman
    Law Office of Elliot Glicksman
    145 S. 6th Ave.
    Tucson, AZ 85701-2007

    I have been practicing in Arizona since 1979 and my practice is devoted almost entirely to representing injured crime victims. I am on the Advisory Board of the National Crime Victims Bar Association and on the board of directors of Homicide Survivors Inc. Without a modification to Rule 26 (b) (4), doctors will be extremely reluctant to treat patients injured by drunk drivers or gun violence for fear of having to take time away from their practice, and testify for a $12 witness fee. This ruling will hurt those that have already been victims of crime from having access to medical care. Thank you, Elliot Glicksman

    28 Apr 2014 11:51 PM
    Krista T. McCarthy
    19840 N. Cave Creek Rd.
    Phoenix, AZ 85024
    Phone: 602-553-2220
    Fax: 602-287-9511

    Dear Justices:

    I have read and support Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure. It is imperative that treating physicians are reasonably compensated for their time testifying at deposition or trial.

    We cannot expect professionals, whether medical or otherwise, to give-up half of their day for a mere $12.00. In fact, as a Plaintiff's attorney, the act of calling a client's treating physician and informing them that they have been subpoenaed to testify is difficult. Treating physicians are generally uncomfortable with the idea of testifying. After all, most physicians are only trained in medicine, not linguistics and certainly not the law. Since Sanchez, this task is unbearable as we must inform them that not only do they need to give up four hours that they could use to treat patients to testify under oath while an adverse party vigorously examines them, but they will likely only be paid $12.00 plus an archaic amount for milage for this sacrifice.

    The reality is, if this Rule is not changed the public will suffer. Before Sanchez, many physicians refused to treat patients that have been injured in an accident as they do not want to deal with the litigation process. If this Rule is not changed, this epidemic will spread to others currently willing to treat accident victims, thus limiting citizens access to medical care.

    As it stands, with every subpoena sent to a treating physician, a question is created: what amount must this physician be paid for her testimony? This question leads to creative questioning and gamesmanship on behalf of the attorney that subpoenaed the deposition, as it is financially advantageous to avoid paying for expert testimony. Petition R-13-0042 addresses these concerns and eliminates the questions that Sanchez created. It's simple, the rule must be clear and physicians must be compensated for their time in order to ensure equal access to quality medical care.


    Krista T. McCarthy

    29 Apr 2014 10:57 AM
    Gabriel D. Fernandez
    437 W. Thurber Rd. #16
    Tucson, AZ 85705
    Fax: 520-293-3937

    I am a personal injury attorney, and have been in practice since 1995. I have read all of the comments in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure and agree with all of them. Many doctors already refuse to treat accident victims because they do not want to be involved in the litigation process. The Sanchez decision can be used to further dissuade doctors from treating accident victims by taking away reasonable compensation for the doctor's testimony at deposition or trial. No doctor will want to treat an accident victim if they know they can be subpoenaed to a deposition, which will require them to take time out of their busy schedule, and knowing that they will only receive $14 in compensation for their time. Causation testimony from a doctor is an integral part of the litigation process. Taking away reasonable compensation for the doctor, thereby ensuring that the doctor will not treat accident victims for fear that they will compelled to testify for a pittance, effectively erodes an accident victim's access to the court system.


    29 Apr 2014 07:11 PM
    Steven L. Reed
    Attorneys at Law
    1757 East Baseline Road
    Building #3, Suite #111
    Gilbert, Arizona 85233
    Telephone: (480) 644-1558
    Facsimile: (480) 644-1695
    Email: sreed@vanosteen.com
    Bar #: 006951

    Dear Justices:

    I am writing to support the proposed amendment to Rule 26(b)(4)(C) regarding payment to treating physicians for providing testimony about the care of their patients. The recent case of Sanchez v. Gama has changed the common practice that has existed since I was a new attorney in 1981 of compensating medical providers for their participation in the legal process. The change will disproportionately affect injury victims and their treating medical providers.

    I have noted over the past 33 years of practice that it has gotten more difficult over time for individuals who bring injury claims to get appropriate medical care. I have had many clients who attempted to consult with a neurologist on recommendation of their primary care provider. They would call the neurologist on their health plan to set an appointment. The office staff would ask the client if they were involved in an injury claim, if so, they would refuse to set the appointment.

    This shows the reluctance of doctors, even when they could demand payment for their deposition testimony, to treat injury victims. I fear that defense attorneys will begin taking a lot more of the treating provider’s depositions because they are not required to pay an expert witness fee. I foresee primary care doctors and other specialist refusing to treat any injury victim after they have been pulled away from their practice a few times to give testimony about their patients without compensation for their time. This will impact injury claimants and it is not fair to the medical provider who is often an unwilling participant in the personal injury litigation process.

    The petition should be adopted.

    Steven Reed

    29 Apr 2014 07:35 PM
    Dev Sethi
    Kinerk Schmidt & Sethi, PLLC
    1790 E. River Rd., #300
    Tucson, AZ 85718

    Dear Justices:

    Approval of R-13-0042 is important and essential to allowing citizens of this state fair and equal access to the courthouse and civil justice system. No other group of witnesses exists that so regularly offers testimony that is a mix of fact and opinion as treating health care providers. And not other group of witnesses is so essential to the fair and complete evaluation of tort cases as treating health care providers.

    Treating them identically to traditional fact witnesses, a first hand witness to a car collision, for example, ignores the unique role treating health care providers play in the civil justice system and ignores decades of common practice throughout the state.

    Even before the Sanchez v. Gama decision, many treating physicians in Tucson, especially in the important specialties of orthopedics and neurology/neurosurgery, refused to accept patients who might be involved in a tort claim. That is to say, even with the expectation of fair payment for their time providing medical/legal services, they refused to provide treatment. With the guarantee of no meaningful payment for their time, getting in to see a doctor has become even more difficult.

    I have practiced in Tucson, in the area of tort litigation -- both plaintiff and defense, since 1997. Historically parties have cooperated and agreed to reasonable payment to treating doctors. That system has worked well and has been necessary to move cases to resolution.

    There is no doubt in my mind that allowing Gama to stand without a rule change will have an immediate and irreparable effect on Arizonans. Doctors will refuse to offer treatment, but if they do, and they are then dragged into court with the promise of a $12 witness fee, the preparation and completeness of their testimony will reflect that. Justice will not be served.

    I have read and considered both the petition and the Board of Governors comments. The Pros in this instance far outweigh the Cons.

    Thank you for your consideration and action on this important issue.

    This is not a hypothetical problem. It is really happening now in my community.

    Dev Sethi


    29 Apr 2014 07:51 PM
    Bonnie S. Dombrowski
    2343 E. Broadway, Ste 112
    Tucson, Az. 85719
    520-622-4543 fax

    I am writing in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure. For justice to be fair everyone has to have equal access to the system. The current state of the law, as set out in Sanchez v. Gama, denies Plaintiffs the ability to ensure that their claims can be fairly heard since most doctors, who are generally reluctant to be involved in litigation anyway, have a further disincentive to be a part of the process. The justice system should not have obstacles that make it so an injured plaintiff cannot have the medical testimony necessary to bring his or her claim.


    30 Apr 2014 11:52 AM
    Karl S. Pearson
    4422 N. Civic Center Plaza
    Suite 101
    Scottsdale, AZ 85251
    P(480) 820-1800
    F(480) 707-5005
    State Bar No. 014594

    I write in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at their professional rate for time testifying in deposition.

    Since being admitted in 1992, I have represented countless injury victims. Prior to the Sanchez decision, it was hard enough for an injury victim to get necessary medical treatment. Many doctors did not want to get involved in litigation and would refuse to treat injury victims. I have had clients who were rejected by several doctors before they were finally able to get appropriate care. This problem will become exponentially worse if the proposed rule change is not approved.

    I have litigated hundreds of personal injury lawsuits. In the vast majority of those cases, the defense was professional and agreed to pay the treating physician a fair amount for his or her time. I have also experienced situations where the discovery process was used to harass and abuse physicians who chose to treat an injury victim. Those situations were kept in check because the defendant would have to reasonably compensate the physicians for their testimony.

    If the proposed rule change is not approved, I am certain that abusive practices will increase. As a result, it will make it even more difficult for an injury victim to get appropriate medical treatment.

    I strongly urge the Court to approve the proposed Petition.

    Jim Penny

    30 Apr 2014 02:10 PM
    James B. Penny
    Law Office of James B. Penny, LLC
    333 N. Wilmot Road, Suite 340
    Tucson, AZ 85711
    tel. 520.618.5386
    fax. 520.437.0226

    The recent appellate court decision Sanchez v. Gama, represents a fundamental shift in the rules that plaintiff and defense attorneys in personal injury cases have previously applied to the deposition of healthcare provider witnesses.

    According to Rule 30(a), ARCP, depositions as a matter of right are limited to parties and experts disclosed as testifying witnesses. According to the comment to this rule, "Treating physicians are regarded as disclosed experts for purposes of this rule." The result is that a defense attorney has a right to depose every one of the plaintiff's treating physicians and does not need to demonstrate good cause. For more than 20 years, since I started practicing, the standard, accepted practice and procedure was that a defense attorney was expected to pay a treating physician that physician's expert witness fee when the defense deposed that treating physician. This seemed only fair; if a defendant had the right to force a doctor to set aside up to four hours from his/her practice, the doctor should not be compelled to suffer economic harm in the process.

    The Sanchez v. Gama decision, however, created an artificial construct; a treating physician must only be paid as an expert witness when providing expert deposition testimony. When a treating physician is providing "fact witness" deposition testimony, no expert fee is required. This novel approach must be rectified because it ignores the realities that anything about which a treating physician may testify to that constitutes "fact witness" testimony, is inextricably intertwined with that witness's expert testimony. Moreover, a physician should not be treated as an expert witness when it comes to a defendant compelling his or her deposition testimony as a matter or right, but not treated as an expert witness throughout the entirety of that deposition, when it comes to compensation.

    The petition submitted to this Court appropriately and fairly solves this problem, by returning to a long-standing practice that appropriately places the cost and expense of this discovery on the party seeking the discovery, not on the treating physician. As a result, I urge the Court to approve the proposed petition.

    30 Apr 2014 05:21 PM
    J. Ridge Hicks
    The Law Office of J. Ridge Hicks, PLC
    3635 E. Inverness Ave., Suite 106
    Mesa, AZ 85206
    Ph (480) 659-2198
    Fax (480) 626-6839
    SBN 017272

    I write in support of R-13-0042. The recent developments in the wake of Sanchez v. Gama tilt the field significantly in favor of defendants in an unprecedented way, and a change to the Rules is appropriate and fair. Now plaintiffs must always pay a defense medical expert for deposition time, but defendants only pay plaintiff medical experts an expert fee if they were not also treating doctors before litigation - in other words, the vast majority of plaintiff medical experts.

    For years most tort litigators on both sides willingly paid reasonable expert fees to treating doctors who were deposed. It was expected. Expert discovery is the most costly aspect of most tort cases. The current state of the law relieves defendants of most of this burden while continuing to burden plaintiffs and even increasing that burden, since plaintiffs who want their medical experts to review their file before the depo will still have to pay them for their time. Increasing the financial burdens of litigation to all plaintiffs while reducing the costs to all defendants is not in keeping with the stated purpose of the Rules of Civil Procedure.

    Fairness also dictates that doctors should be paid a reasonable fee if they are taken away from their practice of treating patients for several hours in the middle of the day. Thank you for your consideration of this comment.

    - Ridge Hicks

    30 Apr 2014 05:53 PM
    Steven L. Evans
    Evans Dukarich LLP
    PO Box 14086
    9885 South Priest Dr., Suite 104
    Tempe, AZ 85284
    (602) 288-3325
    AZ Bar No. 012998

    I am writing in support of Petition R-13-0042 to change Rule 26(b)(4)(C), Ariz. R. Civ. P.

    I have been practicing as a trial lawyer in Arizona, almost exclusively in Maricopa County, for about 24 years. My practice is focused on representing plaintiffs in personal injury, wrongful death, and professional malpractice cases and on probate-related litigation matters, including guardianship/conservatorship cases under ARS Title 14. I echo all of the concerns raised in the Petition and in the majority, if not all, of the comments supporting the Petition as those concerns relate to personal injury practice. I also am concerned, however, that the holding of the Sanchez case also could be applied in the guardianship/conservatorship litigation context, where medical testimony is used to establish or refute incapacity. In that context, the same concerns that make the Sanchez holding untenable in the personal injury context will increase the burden of providing due process to allegedly incapacitated people before a part of their personal liberty is stripped away by appointment of a guardian and/or conservator.

    The Sanchez decision unfairly forces treating physicians to testify without reasonably compensation for their time. That unfairness ultimately will fall on the public. Despite the "higher calling" nature of their profession, physicians (like all professionals) are rational economic actors. There will be some rational economic reaction to the situation created by the Sanchez decision. That is, if a litigant compelling testimony from a physician is not required to fairly compensate the physician then that cost (the physician's lost time/opportunity) will ripple through the economic model and pop up somewhere as an increased price for the physician's services in some other area. In that sense, the Sanchez decision unreasonably and unfairly shifts the economic burden of litigation from litigants seeking to compel a physician's testimony to the public. The public will pay the price in the form of restricted access to and increased prices for medical services.

    The Petition should be granted.

    02 May 2014 12:25 PM
    Mark P. Breyer
    Breyer Law Office PC
    15715 S. 46 St., Suite 100
    Phoenix, AZ 85048-0439

    Dear Justices:

    Just as you can judge an individual by the way he treats others, you can judge a profession by the way it treats other professions. The purpose of my comment is not to criticize the court of appeals decision in Sanchez v. Gama. The court interpreted the current law as it deemed appropriate. Instead, the focus of my comments to is ask the Supreme Court to adopt this resolution to ensure doctors are treated appropriately. This resolution - or the failure to adopt it - will have significant ramifications for both the people of our State, the doctors in Arizona, and our court system.

    How can attorneys successfully defend the fairness of our system if it requires treating medical providers to suffer unnecessary and significant financial hardship?

    From a practical standpoint, failing to adopt this resolution will affect those who are injured - particularly in roadway collisions - and their access to medical care. For those needing anything other than emergency medical care, finding a doctor to provide treatment will become a challenge. For the treating doctor, it will not matter whether a lawsuit is brought. It will not matter who is at fault. Anyone injured in an automobile collision (or in any other encounter that could lead to litigation) will have a far greater challenge in finding a doctor due to the inherent risk of litigation.

    The result of Sanchez v. Gama is that doctors can be called away from the operating room, medical offices, and clinics. The only decision many doctors will be able to make is to limit or completely cease to offer treatment to those injured in any situation that is likely to lead to litigation.

    We have already watched the medical profession come under attack and we have watched the promises made to doctors broken. The financial expectations have regrettably changed for the physicians of our State that have put in the study and work to deserve certain financial compensation. In plain terms, we watch doctors struggle to simply make the money they deserve to make and were promised to make when they graduated medical school. The failure to adopt this resolution, I fear, will force many well-meaning surgeons to stop treating people in need.

    Our trial courts will be filled with motions made by plaintiffs' counsel arguing over what questions count as expert witness testimony as opposed to lay testimony and what compensation ought to be provided. There will be difficulty scheduling doctors to get them to depositions to move cases forward.

    It has been the custom in Arizona for as long as I have practiced - and likely in almost every state in the country - that if surgeons are called away from their operating rooms and the trauma patients that they serve that they will be accorded reasonable reimbursement. That tradition is necessary not only to ensure that people injured in Arizona can see the doctors they need, but also to make sure that we as a profession continue to treat the medical profession with the respect they deserve. And we ought to do what is right in this setting not only as fellow professionals, but because how we ensure doctors are reimbursed for lost time because they were willing to help a patient in need says something not only about how we view doctors, but how we ought to be viewed ourselves.


    05 May 2014 06:59 PM
    Lincoln Combs SBA#025080
    602-530-8022 | lincoln.combs@gknet.com
    Gallagher & Kennedy
    2575 E. Camelback Road, Suite 1100
    Phoenix, AZ 85016-9225
    Main: 602-530-8000 | www.gknet.com

    I wholeheartedly support the Petition. The current rule, as interpreted by Sanchez , unfairly punishes physicians who treat accident victims and who thus are key witnesses in personal injury caes. Most states have a rule similar to the one proposed by the Petition that allows professionals who give their valuable time to assist with the administration of justice to receive appropriate compensation. This has been the system that has been in place for decades in Arizona and elsewhere, and which the Petition will return Arizona to. The Petition should be adopted in full.


    06 May 2014 11:18 AM
    Donald R. Alvarez 006160
    14500 N. Northsight Blvd., Ste 216
    Scottsdale, AZ 85260
    480-686-8708 (fax)

    Dear Honorable Justices:

    I am writing in favor of Petition R-13-0042.

    I believe doctors should be reasonably compensated for their time as had been the custom and practice in AZ for at least the 34 years I have been practicing in AZ prior to the Sanchez v Gomez case. As a result of the holding in that case, I believe we will see a protraction of litigation and increased litigation expense for injured Plaintiffs, as well as doctors refusing to get involved with Plaintiffs injured by the negligence of others.

    The Petition should be granted.

    Thank you.

    Don Alvarez.


    06 May 2014 11:19 AM
    Christopher J. Zachar, Esq.
    3301 East Thunderbird Road
    (602) 494-4800 Phone
    (602) 494-3320 Fax
    State Bar Number: 014711

    I have read with great interest the Petition. So often, getting cooperation from treating medical providers is a difficult task. Their intent is to practice medicine, not get involved in a court case that takes them from their office and their patients. For some, appropriate payment makes it tolerable. For many others, it is "not worth the candle" at any price.

    The present rule of law, requiring treating physicians to appear for a meager witness fee will likely be enough to close the door for accident victims. No longer will these people have access to nor support of the medical profession whom we rely on for assistance. The fairness of the justice system is so because of the involvement of caring physicians. The system needs to be preserved, and doctors are entitled to be paid for their time.


    06 May 2014 11:20 AM
    Barry R. Shalen
    4423 E. Thomas Rd., Suite 3
    Phoenix, AZ 85018-7615

    My name is Barry Shalen. I have been an Arizona Personal Injury attorney for 20 years. I too support this rule change as vital to the field of personal injury. Physicians that treat accident victims/patients often have independent practices as well. To make those physicians take time out from their own practice to be subjected to to a deposition is imposing enough, but to compensate them for such time with a $12.00 witness fee is simply unjust, unfair, and frankly insulting. Such providers have to review the patient file, often meet with the patient's attorney to prep for their deposition (so they understand the intent of deposing counsel, which is often more legal than medical), and sit through the deposition itself, which can typically last anywhere from one to four hours. They often have to travel to defense counsel's office. This process takes them away from their own practice for hours, often at a personal cost of hundreds (sometimes even thousands) of dollars in lost revenue. To allow them to be deposed for only a nominal fee will only serve to chase many of them away from treating accident victims, something the field cannot afford, especially when defense carriers don't think twice about paying a doctor more for a one hour records review or exam than the patient's treating doctor charged for a month of care. Regardless of whether a physician serves as a treating doctor or an expert witness, they are professionals that procured professional educations at considerable costs to serve people (much like an attorney). They deserve to be compensated fairly for their education and expertise when deposed, regardless of which capacity they serve in a given case.

    06 May 2014 11:34 AM
    Peter T. Donovan, Esq.
    The Voightmann Law Firm, P.C.
    16700 N. Thompson Peak Parkway, Suite 110
    Scottsdale, Arizona 85260

    I am writing in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at their professional rate for time testifying in deposition. Injury victims will suffer in terms of seeking a fair resolution of claims should this amendment not be adopted. Not only will the injured be faced with the prospect of substantially diminished opportunities for medical care, but to fail to modify this Rule will also have the effect of closing the doors to the courthouse for lack of physician testimony to those who will need this support the most. Accordingly, I ask the Justices of this Court to ensure that the injured in Arizona will have access to appropriate medical care, that doctors are not unduly burdened in their practices, and to keep the doors of the courthouse open for the injured.


    06 May 2014 11:43 AM
    Joseph D'Aguanno
    Harris Powers & Cunningham
    361 E. Coronado
    Phoenix, AZ 85004
    602-271-9344 (phone)
    602-252-2099 (fax)
    AZ Bar No. 020421

    I support R-13-0042. It is inconceivable that someone could argue physicians should miss time from there practice and lose practice income without reasonable compensation. However, this amended Rule goes beyond fairly compensating physicians who make themselves available and testify in litigated cases. The amended Rule would foster access to health care. With falling reimbursement rates, many physicians are under a financial strain. Forcing them to take time away from their practice without reasonable compensation magnifies this financial strain. The remedy is either fair compensation for time away from the practice or stop treating patients who will lead to the physician having to testify. I believe doctors will refuse to treat patients if they think they will be forced to participate in the litigation process without reasonable compensation.

    -Joseph D'Aguanno

    06 May 2014 12:20 PM
    Amy Hernandez
    Piccarreta Davis PC
    145 S. 6th Avenue
    Tucson, Arizona 85701

    I am writing in support of Petition R-13-0042 Rule 26(b)(4)(C), Ariz.R.Civ.Proc. I practice exclusively in plaintiff's medical malpractice and personal injury. As a result, I work with treating physicians often. These physicians, under Sanchez, are put in an untenable position. They want to help their patients by testifying yet economically are compromised if forced to do so essentially for free. For example, if an orthopedic physician has several patients injured in car accidents and they all required deposition testimony, he or she is looking at missing literally full days from the office collectively. This affects the physician's livelihood and it is understandable that the physician will likely choose to refuse to treat patients involved in litigation.

    Unfortunately, there are already providers in Tucson who simply will not treat patients who are involved in car accidents or litigation. These patients are screened by receptionists and told the physician does not handle those patients. I cannot tell you how many clients have called me because they were refused treatment. Sanchez standing will make this worse.

    It is extremely disheartening explaining to a client who has just been injured through no fault of their own that it is very common to be refused medical treatment. Thus, the client loses faith in both the legal and medical systems.

    This Petition should be adopted.

    06 May 2014 01:54 PM
    Shane L. Harward Bar No. 016532
    10575 N. 114th Street
    Suite 103
    Scottsdale, Arizona 85259
    (480) 874-2918 - Phone
    (480) 588-5063 - Facsimile
    ShaneHarward@cox.net - Email

    Dear Justices:

    I am writing in support of R-13-0042. I have been practicing law in Arizona since 1995. During that time, I have handled a significant number of tort and insurance bad faith cases involving medical-legal issues. Until Sanchez, my experience had been that most lawyers and physicians worked together and followed the Medical Legal Guidelines for Cooperation that have been around since the 1970s. Those Guidelines specifically outlined that judges and attorneys should "make every effort to avoid unnecessary inconvenience for the physician" and that physicians should be paid reasonable fees for deposition and court appearances. Indeed, the Guidelines encouraged an attorney to make arrangements for payment of a fair and reasonable fee prior to sending a subpoena to a physician.

    The purpose of the Guidelines was to encourage meaningful inter-professional relationships between doctors and attorneys. Because of Sanchez, those relationships are being severely harmed. Instead of cooperation, we are seeing insurance defense attorneys serving subpoenas on treating doctors without any prior agreement as to fees. Then, following deposition testimony, the insurance carriers refuse to pay the treating doctors anything other than the $12 lay witness fee. The Guidelines from the 1970's understood that treating doctors are not merely lay witnesses and should be paid fairly. Sanchez has set up a system in which the Plaintiff, the party with the least funds, must pay the insurance medical doctors an expert fee, but the defense (billion dollar insurance companies)can pay the treating doctor $12 for several hours of testimony.

    Even more disconcerting, insurance companies are using Sanchez to unnecessarily inconvenience and harass treating providers. Treating doctors that normally would not even be deposed during litigation are being deposed for hours. This also violates the spirit of the Guidelines, unnecessarily harms doctors' offices, and re-victimizes injury victims. Personal Injury victims rely upon their treating doctors' willingness to testify in a court of law if litigation becomes necessary. If treating doctors are not getting paid fairly for their medical-legal time, they will simply stop treating those innocent victims. Those of us who have practiced in this area of law for years are already seeing this happen.

    This is not simply a medical-legal issue. If this practice of abusing treating providers is allowed to continue, it could irreparably damage the public's welfare.

    Thank you for your consideration.

    06 May 2014 01:54 PM
    Stewart Gross
    5353 N . 16th Street, Suite 110
    AZ Bar No. 019804

    Having reviewed the Petition by AzAJ to amend Rule 26(b)(4)(C), I hereby write in support of said amendment. I have been involved in the practice of personal injury law as an advocate for plaintiffs and defendants since 1996. It is patently unfair for treating physicians not to be compensated for their time at either depositions or trial. There is little doubt that treating physicians will refuse accident victim cases if they know they will never be fairly compensated for the time they spend testifying . Furthermore, the Sanchez decision gives the defense a tremendous strategic and economic advantage because defense counsel can illicit testimony from a treating physician at basically no cost. Finally up until recently, the prevailing practice has been to pay a reasonable fee to treating physicians for their time. The recommended amendment to Rule 26(b)(4)(C) will simply work to codify what has been fair and accepted practice for both sides. I respectfully requested that the court adopt the proposed petition.
    Frank V

    06 May 2014 03:26 PM
    Frank Verderame
    316 E. Flower St, P.O.Box 36570
    Phoenix, AZ 85067
    Ph: (602)266-2002
    FAX: (602)266-6908
    Az Bar Number: 007519

    i do not want to be repetitive, so i will not restate what has been written in support of this petition. I have been in practice for more than 30 years, practicing primarily in the area of personal injury, wrongful death and various types of tort claims. I have represented both defendants and plaintiffs. While most of my practice is now representing plaintiffs, I have had at least as many, if not more, jury verdicts representing defendants as i have plaintiffs. My perspective based on that experience is that this rule proposal is important, necessary and should be approved by the Court. The Sanchez case has made an already difficult situation become impossible, creating what could even be described as a hostile environment. This rule change would promote professionalism and end conflicts. The Court really needs to address this problem by adopting this rule. Thank you for the privilege you give us to comment in this way. Respectfully, Frank Verderame

    06 May 2014 03:54 PM
    Eric Post
    Law Office of Eric Post, P.L.L.C.
    3256 East Speedway Boulevard
    Tucson, AZ 85716
    AZ Bar No. 020267

    I write in support of the rule change. Many physicians refuse to treat because they do not want to get tied up in litigation. They see their job a physical healers and not as financial healers. The Sanchez decision makes this even worse. Currently, I cannot find a neurologist in Tucson to treat one of my clients. She has to go to Phoenix to get treatment solely because she was involved in a collision and has an attorney. Some doctors will go ahead an participate in the litigation process if it is not a detriment to their practice. The only way that occurs is to pay them.

    More importantly, organizations like Tucson Orthopedic Institute and Barrows and many others control what their doctors may or may not do. The doctors don't get the court fee or the $12.00 (or the expert fee if they are in the roll of an expert), it is the business that gets it. The doctor shows up to work and either operates or testifies as the business manager so dictates.

    It might be that a particular doctor does indeed want to help in the litigation process, and the employer says no. Convincing the business manager at one of these kinds of businesses that the doctor should leave the hospital for a half day in exchange for $12.00 is never going to happen.

    Exercising subpoena power to take the doctor away for a half day for $12.00 is the fastest way to guarantee that a business manager will write a policy to deny treatment to any patient that has a lawyer.

    I am aware of a fellow injured through no fault of his own. He was turned down for surgery by multiple orthopedic surgeons because they wanted no part of lawyers. This injured man finally found a doctor to operate by lying to the doctor and telling the doctor that he had no lawyer and no claim. He then called the lawyer, explained the situation, and directed the lawyer to settle the case for the a nuisance amount. Getting treatment was more important than holding the wrongdoer accountable. Of course, that also meant the health insurance subrogation was not going to be fully satisfied.

    So this $12 fee under Sanchez does nothing for the people of Arizona that is beneficial. It further victimizes the victims and prevents insurance like AHCCCS from being reimbursed.

    When people have to walk away from a claim to get treatment, there is one entity that profits, and that is the insurance carrier for the wrong doer.

    I am with the folks above who support the rule change. Thank you.

    06 May 2014 04:40 PM
    Richard B. Biggs
    Busby, Bell & Biggs
    1241 E. Prince Rd.
    Tucson AZ. 85719
    AZ State Bar #011396

    I have been handling personal injury cases in the State of Arizona for over 20 years. In recent years, doctors have become more and more resistant to seeing any patient who is seeking treatment for injuries caused by an incident which might result in litigation. This is even true relative to patients who have primary care physicians who have provided treatment for years. Usually no explanation is given other than they do not want to become involved. The patient is then left suffering without the care of a doctor to whom they have become comfortable and in whom they have developed a trust and relationship. The ruling in Sanchez v. Gama has only exacerbated the situation. The physicians now are at risk of having his or her time demanded for depositions noticed by the Defendant, only to limit reimbursement for his or her time expended in having to attend the deposition. The inevitable result will be an even greater number of physicians or care providers refusing to provide treatment for accident victims.

    The petition needs to be approved to allow fair and adequate compensation for the fewer and fewer physicians that are willing provide treatment for persons that suffer injury due to the fault of another.


    06 May 2014 05:24 PM
    John P. Torgenson
    Benedetto Torgenson, PLC
    1433 N. 3rd Ave.
    Phoenix, AZ 85003
    P: (602) 759-0012
    F: (602) 513-7066
    E: jpt@bentorg.com
    AZ State Bar #023505

    Dear Justices:

    I write in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at their professional rate for time responding to discovery, including testifying in deposition.

    I focus my practice on personal injury law. I have been in practice for almost 10 years. I have the unique perspective of having a big brother who is a general surgeon and being able to discuss several important medical/legal principles with him. With regard to the Proposed Amendment, all it asks is that Medical Doctors who treat patients get compensated fairly for the time they take to respond to defense lawyers' discovery, namely deposition appearance. This Petition is necessary to protect injured patients whose injuries were caused by someone else. It is necessary to protect doctors, who treat their injured patients with no stake in litigation results. They are highly trained professionals who treat and heal their patients. When those patients happen to be personal injury claimants, the doctor should not be forced to be taken out of their practice, surgery schedule, or even the precious days they have off to testify about their treatment of their patient, and then be given $12.00. Doctors need to be paid fairly for their time. Just like attorneys like me ask for a fair contingent fee. Just like the defense attorney who forces the doctor to testify asks the insurance company who hires her for a fair hourly rate. And, just like the injured patient/claimant, who just wants a fair result.

    The treating doctor should not be the only person in the process who is not treated fairly.

    If this Proposed Amendment is not adopted, it will lead to doctors (who, frankly, are trained in medical school and throughout their career to distrust lawyers) to refuse treatment to patients who are also claimants. It will lead those doctors to resent their patient, their patient's lawyer, and the defense lawyer who forces them to accept $12 for their valuable time. The doctor does not want to be hailed into a deposition in the first place. To give them $12 and tell them to go on their way will lead to refusal to testify, an increase in subpoenas and costs, and will further drive a wedge between legal and medical professionals who should be working together to make sure the patient/claimant is taken care of and treated fairly. The current rule, post Sanchez v. Gama, is contrary to this goal of law. This is contrary to what we do as the legal community in Arizona. The driving goal in litigation is to achieve justice for both sides. That's it. Forcing a doctor to attend a deposition to explain their invaluable treatment and then refusing to pay them fairly for their time is unjust, unfair, and will undercut the fabric of Arizona's civil justice system.

    Why is it fair that a defense-hired doctor, sometimes critical of the treating doctor and patient, is paid thousands of dollars for a deposition by the injured patient, but the treating doctor who healed that patient is only paid $12.00 by the defendant’s insurance company?

    In practice, on a day to basis, this is what it will look like:

    Patient is in a crosswalk and gets run down by a drunk driver, shatters her femur.

    Emergency Room Surgeon performs emergency surgery to save Patient's life.

    Patient hires Lawyer A to represent her in a case against the drunk driver.

    Drunk driver's insurance company hires Lawyer B to defend the case.

    Lawyer B hires Defense Expert Doctor who says that Emergency Room Surgeon's treatment was not reasonable and was not necessary and that Patient, who now walks with a limp, had pre-existing arthritis which is now causing her limp.

    Lawyer A Deposes Defense Expert Doctor and pays him $2,500.00 for his time.

    Lawyer B Deposes Emergency Room Surgeon (who needs to explain that her treatment was reasonable and necessary), and pays her $12.00.

    That result is not fair and not just.

    Please adopt Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure.

    Thank you for your consideration.


    06 May 2014 05:58 PM
    Paul Michael Benson
    Benedetto Torgenson
    1433 N. 3rd. Ave.
    Phoenix, AZ 85003-1201

    Dear Justices:

    R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at their professional rate for time responding to discovery, including testifying in deposition. The bulk of my practice is made up by representing injured plaintiffs.

    If the proposed amendment is not adopted into law, it will inevitably lead to Arizona physicians refusing to treat patients who are bringing injury claims. Many doctors will simply not be able to afford to abandon their practice for half of a day for merely $12. It will be exceedingly difficult to convince physicians to examine our clients.

    I have read Mr. Trachtenburg and Mr. Plattner's proposed amendment as well as all the above comments. It goes without saying that the proposed amendment is carefully drafted, and if adopted, will produce a fair result. I urge you to quickly adopt the proposed amendment.

    Paul Benson

    06 May 2014 09:18 PM
    Kyle A. Israel
    Israel & Gerity PLLC
    3300 N. Central Ave., Ste. 2000
    Phoenix, AZ 85012-0001

    I am one of the few attorneys in this town that practices on both sides of the aisle in personal injury and medical malpractice cases. I was very surprised by the ruling in Sanchez v. Gama and see it as extremely harmful and unfair to injured parties. Sanchez v. Gama will cause physicians to refuse to treat injured victims in fear of being pulled away fro their practice to testify without fair compensation. Sanchez v. Gama creates a procedural advantage for defendants in the short term, which will lead to results that are not based on the merits. Meanwhile, Sanchez v. Gama will cause plaintiffs long term harm in the form of scarcity of quality providers. I urge the adoption of the proposed rule so that injured parties access to quality medical care is not limited and so that cases can be decided on the merits--not tactical advantage.

    07 May 2014 10:37 AM
    Matthew L. McClellan
    361 E. Coronado Road, Suite 101
    Phoenix, AZ 85004
    Bar No.: 022586

    Dear Justices:

    This petition is of great importance to the citizens of Arizona. It is already difficult to get doctors to treat patients injured in accidents. If doctors are forced to leave their practices for up to four hours to give deposition on behalf of their patients for the nominal witness fee, they will be even less likely to treat these folks.

    The Arizona Medical community and the Arizona State Bar worked together to create "guidelines for cooperation" that have been followed informally for years. The guidelines were intended to try to eliminate disputes between lawyers and doctors that would hopefully encourage good doctors to provide treatment to injured victims, even those with attorneys. Those guidelines for cooperation provided for fair, reasonable compensation for a doctor's time in responding to a subpoena to provide testimony about their care and treatment, in a deposition or a trial.

    The proposed rule codifies the custom and practice that has endured for decades that is based on common sense, and professionalism. Doctors should be compensated for their time.

    The Court should adopt this petition. Thank you for your consideration.


    07 May 2014 11:06 AM
    Steve Blank DC
    3104 E Camelback Rd Ste 312
    Phoenix, AZ 85016
    (602) 743-4000

    Dear Justices:

    I write in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at their professional rate for time testifying in deposition. As a Chiropractic Physician and medicolegal consultant for over 20 years, I can affirm that requiring physicians to appear for testimony for a mere $12 witness fee creates a financial burden for the physician. This fee serves to provide am unfair advantage to Insurance Company's and Defense Counsel. The injured victims will be the ones that will be harmed. I encourage the court to adopt the petition.

    07 May 2014 04:47 PM
    Marion E Cockrell, III
    impartial - Medico-legal services
    HQ - 16001 Quarry Road
    Lake Oswego, OR 97035
    Operating 9 locations in the Phoenix area

    Dear Justices:

    Professional/Expert fee restrictions in regards to medico-legal practice will have tendency to cheapen the outcome in a case. Other States have imposed fee restrictions but they have little standard for ensuring quality examiner skills or review of medico-legal practice. Not to mention lacking desire to follow AMA guides for practice or causality. It is already had to find certain specialists with skills to perform as an examiner and one that can withstand the pressures imposed by the legal community. Many IME physicians conduct IMEs because they have been trained to work within confounds of the legal community. They also expect to receive fair compensation and $12.00 is certainly not fair.

    07 May 2014 09:01 PM
    Jay L. Ciulla
    The Ciulla Law Firm, PLLC
    3030 N. Central Avenue, Suite 608
    Phoenix, AZ 85012
    Telephone (602) 495-0053 Ext. 102
    Facsimile (602) 258-7199
    Email: jay@ciullalawfirm.com
    State Bar No. 017971

    Dear Honorable Justices:

    I am writing in favor of the present petition for rule change. I am an attorney who represents injured people. The present state of the law harms injury victim's access to necessary healthcare.

    Just today, I met with a client whose children were turned away from a physician because they were in an accident. Many physicians are already reticent to get involved in the legal system. If the present system continues, each medical care provider that is required to spend 4 hours in a deposition for $12.00 will simply stop treating people injured in accidents.

    Additionally, the present situation has resulted in routine discovery disputes and litigation over which portion of the proposed physician deposition is factual vs. expert and subject to additional witness compensation.

    Under the current law, injured people and Arizona physicians lose, and out of state insurance companies get a free ride.

    Please pass the proposed rule change.


    Jay L. Ciulla


    08 May 2014 02:37 PM
    Michael J. Bell
    Busby, Bell & Biggs, P.C.
    1241 E Prince Rd
    Tucson, Arizona 85719
    (520)293-8347 fax
    State Bar # 009020

    To the Arizona Supreme Court:

    I am sending this comment in support of R-13-0042. I have represented plaintiffs in personal injury cases for just over 25 years. In those past 25 years treating doctors were appropriately compensated for their time in giving a deposition. They were paid more than the $12 that was paid to a “fact” witness. Over the years there have been many doctors who have told my clients they will not treat accident victims for fear of being dragged into a deposition or a jury trial. It has been my recent experience that more and more doctors who do treat individuals who are injured due to the negligence of others are now resisting cooperating in the patient's legal claim process. The recent court decision requiring doctors to appear for deposition upon subpoena, typically by defendants, with only the $12 subpoena fee plus mileage paid to them for their time is unfair to the doctors. Doctors should be fairly compensated for their time and $12 is not fair compensation. Allowing a doctor to be subpoenaed for a deposition and be paid $12 for his time will only further doctors’ reluctance to treat victims of negligence. This will make it very difficult for victims of negligence to receive fair compensation in our judicial system. It will be an unfair advantage for the those who caused the harm and their insurance companies. Please amend the rule to restore this situation to how these types of depositions have been handled in the past. Thank you for your consideration.

    08 May 2014 05:38 PM
    Formal Comment in Support of Petition R-13-0042 submitted by:

    Barry D. Halpern (#005441)
    Sara J. Agne (#026950)
    Joy L. Isaacs (#030693)
    One Arizona Center
    400 E. Van Buren
    Phoenix, AZ 85004-2202
    Telephone: (602) 382-6000
    Attorneys for Arizona Medical Association

    09 May 2014 11:38 AM
    David J. Catanese
    The Catanese Law Firm, P.C.
    2701 E. Camelback Rd., #160
    Phoenix, AZ 85016
    AZ Bar #012083

    I am a Certified Specialist in Personal Injury and Wrongful Death Litigation and strongly support R-13-0042 Rule 26(b)(4)(C), A.R.C.P. as it is necessary to ensure that injured victims have a level playing field in receiving just compensation for their injuries and damages caused by a tortfeasor. Having litigated personal injury cases for more than 25 years, treating physicians play a critical role in assisting victims in obtaining a fair result at trial. These doctors are not hired guns but treating physicians who are involved in a case due to their willingness to treat injured persons. While their willingness to assist their patients in recovering compensation is vital it does not come without a cost. These treating doctors are required to give up time away from their practice and other patients to assist in litigation. It is only fair that they receive adequate compensation for this sacrifice, especially since defense doctor's, hired not to treat but to advocate for a tortfeasor, are compensated in significant amounts. This proposed rule change simply acknowledges the sacrifice and provides reasonable compensation. Without this change victims are at a clear and unfair disadvantage and the risk that treating doctors will avoid providing this necessary assistance is real and great without this needed change. The effect of moving forward without this necessary change will be a limitation on a victims's ability to receive a fair opportunity at recovery for their injuries and will significantly increase the cost of litigation for a victim which in many cases will act as a bar to their ability to pursue claims guaranteed by our Arizona Constitution. A rule that eliminates such unfairness is clear warranted. Thank you for your consideration. I strongly support this rule change and would be happy to provide additional comments and information if needed or wanted.

    09 May 2014 12:26 PM
    John A. Furlong, Bar No. 018356
    General Counsel, State Bar of Arizona
    4201 N. 24th St., Suite 100
    Phoenix, AZ 85016
    Telephone: (602)340-7236
    Fax: (602)271-4930
    Shaw John

    11 May 2014 04:40 PM
    John Dalton Shaw
    Law office of Shaw and Gould
    1536 West Thomas Road
    Phoenix, Arizona 85015
    T- 602 265-1603
    F- 602 265-1505
    Bar # 005368

    It is unrealistic to expect that medical providers will testify on behalf of their clients without reasonable compensation. This point was not addressed by the court in Sanchez v. Gama, No. 1 CA-SA 13-0072 (Ariz. App. Div. 1, Aug. 20, 2013). Therefore, Plaintiffs if the decision stands will be forced to compensate medical providers when they testify at depositions set by Defendants. The decision does not "save" or "reduce" litigation costs at all. What it does is shift the cost from the Defendants to the Plaintiffs. In most cases the Defendants litigation costs are paid by insurance companies who generally can afford litigation costs. In any event, the Defendants can always avoid the costs by foregoing a particular deposition. A decision that Plaintiffs must consider in the vast majority of cases. The proposed rule change restores the balance that existed before the Sanchez decision. The party seeking the testimony pay the medical provider for his time.


    13 May 2014 10:38 AM
    Richard W. Andreasen, DC
    7400 S Power Rd, #120
    Gilbert, AZ 85297
    (480) 279-4441

    Dear Justices,

    I, too, write in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure. I have practiced chiropractic in Arizona since 1997, with the majority of my practice being dedicated to treating personal injury victims. When called upon to go to court to testify, a physician must cancel patient appointments to allow for the time needed to travel, appear, and testify. Certainly the $12 fee does not provide fair compensation.

    If this Rule is left unamended, I fear that I and my colleagues would be discouraged from testifying as to the treatment we provided our patients, and placing our patients at a serious disadvantage in receiving a fair outcome in their cases.

    Thank you for your consideration.

    Richard W. Andreasen, DC

    13 May 2014 10:50 AM
    Dr. Bill Gallagher
    8426 E. Shea Blvd.
    Scottsdale, AZ 85260

    Please add me to the list of those in support of R-13-0042 Petition to Amend Rule 26(b)(4)(C), Ariz. R. Civ. P.

    The thought of being paid $12/day and 20 cents/mile, one way, which really comes to 10 cents/mile goes beyond the absurd. Such fees would not only cause undue harm and stress to me but also to patients who would not have access to my services. These patients include those who could not be seen on days when I am called to testify as well as those who would not get care, if I know that treating anyone who may eventually need me to testify, would cost me money.

    If the courts see fit to pay me as a fact testifying, treating doctor they can get the facts from my notes. If further questions requiring my knowledge, experience of opinion are needed I should be compensated for that. $12/ day is not compensation, it is an insult. The only way I could support the existing ruling is if the attorneys who call on me to testify are paid at the same $12/day.

    13 May 2014 11:42 AM
    Dr. James D. Suba
    4229 W. Ina Rd., Ste. 101
    Tucson, AZ 85741

    I am an Arizona licensed Chiropractic Physician. While it may be the public's impression that physicians earn more than enough money through their work as a physician, that is untrue. In addition to not being wealthy, many of us including me have student loans in excess of $175,000.00 that we are paying back for our education that provided the opportunity for us to become licensed physicians. There are other costs involving mandatory continuing education, computers/software and other tools with continuing evolving technologies. This doesn't take into account daily living expenses.

    So how does one begin to fathom that a physician's time required for a deposition involving time-off from work (no income generation), travel expense and preparation is only worth $12.00? A licensed physician has an exceptional liability regarding their testimony. Any perception of untruths, inaccurate information, lack of knowledge, etc. may not only compromise the case but could also result in a complaint with their licensing board resulting in an action against the physician further compromising their ability to have a job and earn income.

    I do not wish to quote legislation and petition rule numbers in order to avoid making the mistake of supporting a petition inaccurately. However, I cannot state strong enough that being compensated only $12.00 for a deposition or other court testimony is one of the worst assaults to my profession that any legislature could impose. I am an employee, an associate physician, which obligates me to do what is in my job description. However, when the time comes that I have my own practice, it is highly unlikely that I will take any personal injury case patient due to this type of irresponsible legislation.

    13 May 2014 11:50 AM
    Keith Lavender
    2915 E. Baseline Rd. Suite 126
    Gilbert, AZ 85234

    I am writing to voice my support to amend R-13-0042 Rule 26(b)(4)(C), Ariz.R.Civ.Proc. as outlined. As with our attorney friends, our client is our primary concern. Those clients seek us out for our expertise in our fields. That expertise requires that we have normal office hours and as a result we are only compensated when maintaining those open hours and caring for our clients. The doctor's time must be compensated at a rate commensurate with what they would be earning while in their office setting.

    As a doctor I can tell you that the idea of not being fairly compensated for a deposition that may be required by one of my clients who has been the victim of an accident destroys the very foundations of professionalism between the justice system, victims of accidents and the medical community. This looks like a win-win for the insurance industry. I agree with the aforementioned comments and am pleased to see so many willing to express common sense in regards to the rules governing depositions. I therefore hope the court will adopt this petition.

    Keith Lavender

    14 May 2014 10:21 AM
    Steven H. Pincus, Esq.
    2133 E. Warner Road
    Suite 101
    Tempe, AZ 85284

    Please add me to the list of those in support of R-13-0042 Petition to Amend Rule 26(b)(4)(C), Ariz. R. Civ. P.

    I have been practicing personal injury law in Arizona for over 20 years.

    Access to our legal system in personal injury cases is paramount. This is largely why contingent fee agreements are utilized in personal injury cases. Most innocent people who find themselves injured due to the negligence of another are not in a position to finance a lawsuit. Part of what gives such people access to the legal system is an attorney who is willing to take their case on a contingency. Another crucial part of having such access is the ability to keep costs in-check when the total case value you are dealing with may be in the $12,000 to $15,000.00 range; which is typical of automobile accidents.

    No one should be asked to work for free, and this certainly includes treating physicians. If the defense is no longer required to pay treating physicians for their time, I see two options. One is that the Plaintiff pay their doctor for their time; which would increase the costs of litigating thereby making it financially not feasible to litigate such smaller dollar cases. The second is that doctors will simply refuse to treat accident patients – which many already refuse to do.
    It is a basic principle that anyone who is asked to provide a service, that is within the realm of their livelihood, ought to be paid for their time. And, as it would serve to dismantle permitting access to our legal system to deny payment to treating physicians by the party noticing their deposition – this Rule change is needed.

    Steven H. Pincus

    14 May 2014 12:10 PM
    Tod L. Stewart
    Stewart & Torgersen, P.A.
    2999 N. 44th Street, Ste. 318
    Phoenix AZ 85018

    I handle almost exclusively personal injury cases. A large majority of the cases that I handle involve soft tissue injuries and only a few catastrophic injury cases. I believe that this is reflective of average number of cases, by type, handled by most personal injury lawyers and law firms. Despite the low monetary value of the soft tissue claims, these cases need to be litigated when they are wrongfully denied or minimized. The injured victims of negligence have a constitutional right to recover for the harms done to them. Any disincentive to pursue those claims will be used as an opportunity by defendants attempting to avoid their legal liability.
    A major disincentive to the pursuit of these legitimate claims will occur if the physicians are financially burdened by simply being part of an injury claim. The end result will be that many physicians will refuse to treat personal injury patients. If this petition is not approved, more physicians will refuse to treat individuals involved in accidents. Based on the holding in Sanchez v. Gama, I anticipate the ruling to be used as a basis to alienate doctors and have them in conflict with the best interests of their patients. This petition should be approved.

    16 May 2014 03:59 PM
    Scott DeMent, D.C.
    6520 E Carondelet Dr. Tucson, Az 85710
    fax 520-748-9028

    Doctors need to be compensated for the time that they are out of the office to attend a deposition. Most of the Chiropractors are small business owners and the amount of lost income to go to a deposition is damaging to the business. If a doctor is being questioned about a case that they have been working on They should be fairly compensated. The depositions call on the doctors experience and knowledge in which the doctor has paid for through his/her education and long hours at work. This information has value and needs to be fairly compensated. Therefore rule 26 needs to be approved.

    18 May 2014 02:20 PM
    Richard Langerman
    4506 N. 12th St.
    Phoenix, AZ 85014-4246

    I am a long time personal injury attorney. I write in support of R-13-0042. The proposed rule is necessary to undo the harm caused by the recent decision in Sanchez v. Gama.

    Many doctors have developed an antipathy for the legal community - particularly to lawyers who represent accident victims. Over the last 30 years efforts have been undertaken in Arizona to facilitate dialogue and resolve disputes between the medical and legal communities. Despite these efforts some physicians do not want to get involved in personal injury litigation involving the physician's patients.

    The Sanchez decision has undermined the modicum of cooperation developed between the medical and legal communities. The decision is unfair to doctors whose practices include treatment of trauma victims and will exacerbate the problem that trauma victims have in obtaining access to quality medical treatment.

    The proposed rule change would establish an appropriate balance to the demands placed on physicians whose practices include treatment of trauma victims. Such physicians deserve to be fairly compensated when they are required to spend time away from their medical practice to participate in the legal process. By requiring fair treatment of physicians, the proposed rule will ameliorate the reluctance of members of the medical community to serve our citizens who have the misfortune of being injured by the negligence of others.

    I urge the justices to approve the proposed rule.
    Richard Langerman
    Kurt Maahs

    19 May 2014 12:51 PM
    Kurt D. Maahs
    Phillips Law Group PC
    3101 N. Central Ave. Ste. 1500
    Phoenix, AZ 85012-2681

    Dear Justices:

    I write in support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at their professional rate for time testifying in deposition and at trial. I have represented plaintiffs and defendants in personal injury matters for nearly 20 years. After Gama ruling, I have seen some defense attorneys subpoena every treating provider for a deposition at the defense lawyer's office. Prior to Gama, attorneys would work together and pay a physician for his time. These depositions were usually held at the doctor's office to minimize the inconvenience to the physician's practice. This was the the practice for many years until the Gama decision. A primary care physician or chiropractor is now paid $12 plus a small mileage fee for an afternoon of seeing patients. Not surprisingly, physicians are telling people that are injured due to the fault of another that they will no longer treat them. The proposed amendment is fair and equitable. It also codifies the common practice that was in place for years before the Gama ruling. It is important for the medical community and the legal community to work together to aid in the administration of justice.

    Unfortunately, the current state of affairs is tilted against injured persons making claims. Doctors hired by the defendants are always considered "experts" and are able to charge their hourly deposition fees of $500 to $1500. The medical personnel that actually treat the injured person is limited to $12. This is an inequity that must be remedied.

    19 May 2014 01:01 PM
    Frederick Curtis Berry, Jr.
    3101 N. Central Ave., Ste. 840
    Phoenix, AZ 85012-2679

    Frequently I am retained as a standard of care expert witness in insurance bad faith and insurance marketing malpractice litigation. As such, I believe my expert witness fees are protected by Rule 26(b)(4)(C), Ariz. R. Civ. Pro.

    Treating physicians and other health care providers, however, may not be specially retained experts but, nevertheless, are specially trained and educated experts. Unlike me and other "experts" who hold themselves out to give depositions and testify in trial, their expert time is not presently protected. As A. Lincoln said, "Time is a lawyer's stock in trade." The same is true of physicians who in fairness should be paid a reasonable expert witness fee whether they are specially retained or find themselves having to testify arising out of providing a physician's service.

    I support of Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure to ensure physicians are compensated at their professional rate for time testifying in deposition.

    19 May 2014 04:01 PM
    Shawn J. Dow, Esq.
    Pincus & Associates, PC
    2133 E. Warner Rd. Suite 101
    Tempe, AZ 85284

    I am writing in support of Petition R-13-0042 Rule 26(b)(4)(C), Ariz.R.Civ.Proc. I have practiced in the area of Personal Injury law for approximately five years. With the current state of the law, a procedural disadvantage exists for accident victims.
    Outside of the procedural disadvantage for accident victims, the current law causes long-term harm by limiting the number of medical providers for accident victims to those willing to endure a deposition on their free time. To make matters worse, the law exacerbates the already all-too-common problem of medical providers turning away accident victims because of the fear of being drawn into a lawsuit.
    On a professional level, I am embarrassed that the current law allows for the monetary determent of other professionals such as treating doctors. Unlike lay witnesses, treating doctors can and will be questioned about their “special knowledge” without the benefit of compensation as long as the questions constitute a factual inquiry.
    In all, I respectfully request that the court adopt the proposed amendment.

    19 May 2014 04:08 PM
    Jeffrey D. Scott, M.D.
    Board Certified Physical Medicine and Rehabilitation
    Palo Brea Pain and Rehabilitation, PLC
    P: (602) 368-3600 F: (602) 368-3235

    Dear Supreme Court Justices:

    As a member of the medical community, I thought it important to personally weigh in on this matter and support the amendment. I spend the majority of my time as a treating physician but have also served as an expert witness, both of which have resulted in depositions and trial testimony. As a treating physician, I have never been asked questions that limit my testimony to statements of a “fact witness as defined in the Court of Appeals opinion in Sanchez v Gama. In every case I am asked to draw conclusions and express opinions on relevant medical issues in a medical-legal setting. Other than a rote regurgitation or reiteration of the existing medical file, medical testimony must include conclusion and opinion in order for it to have any substantive value to either party.

    Without this petition, my testimony as a treating physician would be provided under only duress if I am unable to be compensated for my time away from my practice. Furthermore, who would decide when a question exceeds the bounds of fact versus expert witness? Once that line is breached, then what will happen? I for one would be certain to analyze every question and limit my responses to fit the definition of a “fact witness.” The entire medical community will feel the same way. As a practical matter, what physician is going to want to be subject to this process?

    The function of a physician is to take basic facts and formulate conclusions and opinions. This Is how differential diagnoses and treatment plans are developed. In the words of the Court of Appeals in Sanchez v Gama, this is the definition of an expert witness only if it’s done in the context of a medical legal setting?! Physicians function as expert witnesses every day in a clinical practice by this definition. To assign the definition of an expert only when it’s provided in a medical legal setting is absurd.

    Lastly, let me respond to the Court of Appeals opinion and be the first to provide a logical explanation why physicians should be awarded a “reasonable fee” when other classes of professionals or laborers may not. Physicians are not providing a service like other professionals or laborers, they are providing an entitlement. Health care has been assigned as an entitlement benefit for everyone in this country. In an effort to make the right to health care affordable, physician fees are reduced, controlled, monitored, and regulated with additional anti-trust and anti-kick-back laws to limit the profit a physician can take from a societal entitlement. If I lose clinical time, I cannot raise my fees unlike other professionals to recoup the lost time and operating expenses. If I am taken away from the clinic, how would that time loss be compensated? This will only add acrimony to an already perceived contentious environment in which most physicians do not want to participate as is. In summary, without this amendment, Sanchez v Gama threatens the viability of the medical community to treat personal injuries.


    Jeffrey D. Scott, M.D.

    Neal Thomas

    19 May 2014 04:19 PM
    Neal B. Thomas
    Thomas Thomas & Markson PC
    2700 N. Central Ave. Ste. 800
    Phoenix, AZ 85004-1185

    As is typical this rulemaking dispute seems to fall along Plaintiff/Defendant lines. This is unfortunate. Experts get paid for expert opinion. Lay witnesses tell what they saw or experienced. The "special treatment" afforded doctors should not be permitted. The same claim of compensating physicians could be applied to items such as needed car repairs as a simple illustration.

    Frankly, Medical testimony is exhorbitant when the " causation" opinion need be in most cases no more than a note in the chart. Moreover, physicians need to give solid treatment and not be well paid for defending their peripheral practices. Offering and being paid for "opinions" is not altered.

    As the court in Sanchez noted labels are not important the substance of the testimony is controlling. The "custom and practice" was for the ease of the Plaintiffs Bar and to the detriment of Defendants and,let's face it the real target,insurers. Someone took on a distinction often discussed and never litigated. A "practice" for efficiency outside of the rules is no reason to change the rule.

    What about the all to common practice of PI attorneys designating all treating physicians as "experts"? True expert opinions are not subject to Sanchez. Indeed, generally, lay testimoy comes in as part of a medical record and no time need be spent with "lay doctors". Disclosure of "experts" will allow for treatment of as experts. This discovery cottage industry has gone on w/o "regulation" until Sanchez finally stated the obvious. Lay opinion is not to be compensated.

    Also, what is not often stated is special damages can effect the evaluation of general damages. Any overlap will inflate damages requested and more importantly in any event passes a cost for lay testimony onto defendants and insurers in the end even if the form of a statement of costs. Cleary, medical industry and plaintiffs bar proponents want another pocket to pick. Lay medical testimony is no better or worse than other lay testimony and should not be singled out. Perhaps with Sanchez there will be more efficient medical claims handling and less overreaching.

    We could surely "brief" this matter and argue tit for tat. An emergency petition is not such a place. The carve out for special witnesses is not needed. Doctors take an oath to treat and whether opinion is needed should be treated differently. There should be no confusion between obtaining lay testimony and expert testimony.

    19 May 2014 04:43 PM
    Arizona Association of Defense Counsel (AADC)
    Counsel for AADC:
    Charles M. Callahan
    2901 North Central Avenue, Suite 800
    Phoenix, Arizona 85012

    Opposition to Petition to Amend Rule 26(b)(4)(C)

    The AADC submits that the proposed amendment (1) is not grounded in good public policy, (2) is incompatible with the sound reasoning set forth in the Sanchez decision,1 (3) would at a minimum be constitutionally suspect, (4) would unwisely increase litigation expenses and access to the courts, and (5) would be contrary to the interests of the clients represented by members of the Petitioner organization.

    See Opposition Brief, attached.


    19 May 2014 05:42 PM
    Dr. Mike Papamatheakis
    1945 W. Dunlap Ave., Suite 10
    Phoenix, AZ 85021

    Please add me to the list in support of R-13-0042 petition to amend rule 26(b)(4)(C), ariz. r. civ.p.

    Our offices serves many personal injury clients and the thought of being paid 12$/day is insulting. This rule would cause harm to many of our existing patients as I would not be available to serve them on days that i would be called to testify. Please consider the damage this would cause my current patients.

    If a treating doctor should be called to testify he should be adequately compensated. 12 dollars a day is not a fair compensation.

    Thank You

    Dr. Mike


    19 May 2014 07:12 PM
    Michael Gary Kelley
    Thomas Thomas & Markson PC
    2700 N. Central Ave., Ste. 800
    Phoenix, AZ 85004-1185

    There is no need to change the Rules on such an expedited basis. All of the scenarios should be carefully considered, including the potential for abuse and injustice.

    As the Court may know, the standard practice of most personal injury attorneys is to designate all treating physicians as "experts", despite the fact that they will likely only call one of the physicians as an expert at trial. This may include emergency room physicians, chiropractors, nurses, and surgeons. Many of these physicians have evidence regarding statements made by the Plaintiff, the Plaintiff's subjective complaints, and the Plaintiff's appearance after an accident. None of this testimony falls into the category of "expert" testimony. Any change to the current rule would require Defendants to pay an expert witness fee to a nurse, chiropractor, or any other individual who will mostly be giving fact testimony regarding their conversations with the Plaintiff and their observation of the Plaintiff during treatment.

    Additionally, in most accident cases the treating physician has an incentive to cooperate with Plaintiff's counsel and provide testimony at trial because they have a lien against the Plaintiff's recovery. However, if called by the Defendants, the same physician will require payment of expert fees, which in some cases exceed the original charges. For example, a chiropractor may be paid $180 per hour to treat a patient, but charge $700 per hour to provide testimony. The same physician who will testify for free for the Plaintiff will charge thousands of dollars if called to testify by the defense. The only true way to avoid the physician from making this inequitable decision is to follow the Sanchez opinion and only reimburse the physician as an expert if he or she is providing expert testimony.

    The first Rule is most often forgotten, but is applicable here: "[The Rules] shall be construed to secure the just, speedy, and inexpensive determination of every action." Ariz. R. Civ. P. 1. Allowing fact witnesses to charge an expert fee just because they are a treating physician runs afoul of this rule.

    19 May 2014 08:57 PM
    Thomas G. Kelly, III
    201 W. 2nd St.
    Yuma, Az. 85364
    Bar Number 4703

    I have practiced personal injury law in Arizona for 30 years. I am writing in support of R-13-0042 because many doctors refused to see their patients who were injured in traffic accidents before Sanchez v. Gama. Now, I fear, no doctors will want to treat accident victims. My clients are victimized when they suffer an injury in a traffic accident and will be further victimized when their doctor refuses to treat them because he knows that the legal system will not compensate him fairly. It is unfair to both doctors and their patients. It is very important for this court to approve this rule.Your consideration in this matter is appreciated.

    19 May 2014 11:49 PM
    David C. Potts
    Jones, Skelton & Hochuli, PLC
    2901 N. Central Ave., Ste. 800
    Phoenix, AZ 85012
    (602) 263-4547

    I am writing in opposition to R-13-0042 Petition to Amend Rule 26(b)(4)(C), Ariz. R. Civ. P.

    First, a number of commenters have claimed that [i]Sanchez v. Gama[/i] will increase costs or shift costs from defendants to plaintiffs. How? If anything, this decreases costs for both Defendants and Plaintiffs -- Defendants as they will not incur the expert fees associated with deposing treating physicians and Plaintiffs as they will not incur those expert fees as taxable costs if they lose at trial or fail to beat an offer of judgment.

    Second, multiple commenters have suggested that, it "is a basic principle that anyone who is asked to provide a service, that is within the realm of their livelihood, ought to be paid for their time." But this rule doesn't do that for everyone -- it only does that for treating physicians, ironically one of the groups least in need of charity. Mechanics, chemists, police officers, firefighters, plumbers, and accountants may be called to testify about work they've done "that is within the realm of their livelihood," yet they are excluded from this rule. Ignoring any potential constitutional concerns, it is just wrong to treat an entire professional class categorically differently from all others.

    Given these serious defects and inequalities, this Petition should not be granted.

    20 May 2014 08:30 AM
    Sherman Joyce
    American Tort Reform Association
    1101 Connecticut Ave NW
    Suite 400
    Washington DC 20036
    414214 (Admitted to DC Bar)

    I am writing on behalf of the American Tort Reform Association (ATRA) to express our opposition to the suggested changes to Rule 26 (b) (4) (c) of the Arizona Rules of Civil Procedure. ATRA, founded in 1986, is a broad-based bipartisan coalition of more than 300 businesses, corporations, municipalities, associations, and professional firms that have pooled their resources to promote reform of the civil justice system with the goal of ensuring fairness, balance, and predictability in civil litigation.

    ATRA strongly urges the Commission not to adopt the proposed changes to Rule 26 (b) (4) (c) of the Arizona Rules of Civil Procedure. By requiring parties to pay physicians who testify to the facts surrounding treatment the same fee as expert witnesses, Arizona would become an outlier when examining the national landscape. The rule would place Arizona far outside the rules of other state courts and would place an increased burden on parties to pay for testimony that is necessary to the fair resolution of litigation. This is a burden that is not present in other states and would have a negative impact on Arizona’s legal climate.

    Most states, including Arizona, have adopted a version of the federal rules of civil procedure and the state statutes are very similar to Arizona Rule 26 (b) (4) (c), in its current form. More specifically, New Mexico, California, Utah and Colorado’s rules on expert testimony discovery all model the federal rules, and their statutes simply reimburse fact witnesses for expenses incurred in discharging a civic duty under a statutory regime. No distinction is made between the professions or careers of the witness – only their capacity as expert or fact witnesses, and if they will be or may be providing evidence at trial.

    Thomson West’s Corpus Juris Secundum (CJS), an encyclopedia of American federal and state law, addresses witness compensation through sections 70 and 85. The CJS states that the right of a witness to compensation is statutory since there was no such right at common law as factual testimony in controversy is considered a civic duty. The CJS characterizes the witness compensation statutory provisions as intended to pay expenses while away from home, not compensate an individual for wages that could have otherwise been earned during that time.

    It is inappropriate to compensate treating physicians as expert witnesses because of the difference in the nature of their testimony. Treating physicians offer factual testimony about information that is essential to the facts of litigation, whereas an expert witness delivers testimony based on his or her medical opinion. A medical fact witness does not need additional time to prepare to answer questions separate from reviewing his or her own medical records that were written during the normal course of business. The treating physician’s facts and opinions delivered in his or her testimony are not developed in anticipation of litigation, unlike expert witness testimony that is prepared based on the case at hand. Expert witnesses require compensation because they must review the work done by other doctors and familiarize themselves with the facts of the case. Additionally, explaining medical terms and educating jurors does not constitute expert testimony and should not be treated as such.

    Carving out an exception from the general rule for doctors sets an unwise precedent. Why should a treating doctor be compensated differently than an ordinary fact witness when his or her testimony is based on his or her participation in the subject matter of the lawsuit? They should be treated the same as any other fact witness, because who is to say that a similar exception should not be created for other professionals who testify to the facts of a case, such as engineers, architects and the like.

    Finally, the petition warns that if this rule is not adopted by the Commission, doctors will refuse to treat patients due to their fear of being involved in litigation. This is a misguided and incorrect assumption. There is no risk of doctors declining care to patients who may be involved in litigation at a later date. It is not occurring in Arizona, or anywhere else in the country, and states have been operating under the current rules for decades. It is irrational to believe that doctors would ignore their professional responsibility simply because they want to avoid the possibility of having to testify in court.

    It is for these reasons that ATRA strongly urges the Commission to not adopt the proposed changes and maintain the state’s reasonable status quo.
    jon zoltan

    20 May 2014 12:11 PM
    Jon Zoltan, MD
    2222 E. Highland
    Phoenix. AZ 85028

    During a deposition or a court proceeding all participants are paid a fair compensation for their services, whether they be the court reporter, bailiff, judge, or expert. The proposed maximum reimbursement selectively penalizes the treating physician or the medical expert. Such a limitation of reimbursement wiil uniformly stifle medical expert participation for the plaintiff or defense side. I support the petition to amend Rule 26.

    20 May 2014 02:03 PM
    Dale W. Robinson
    Roninson & Allen PLC
    48 N. Macdonald St.
    Mesa, AZ 85201-7329

    I want to add my comment to the many comments on this important issue. I have practiced on both the defense and the plaintiffs' side of personal injury cases for over 25 years. It has already been the case for many years that Plaintiffs at times have difficulty finding doctors willing to treat them for injuries suffered in accidents.

    Unfortunately if treating doctors are also forced to testify without being compensated for the time this takes, it will become very difficult for those injured in accidents to obtain medical care.

    Basic fairness requires that doctors be compensated a reasonable amount for testifying in injury cases.

    I wholeheartedly support this amendment to put things back to where the practice has been for many years.

    20 May 2014 03:43 PM
    Collin T. Welch
    2155 W. Pinnacle Peak Rd., Ste. 220
    Phoenix, AZ 85027-1209

    I support both the Court’s holding in Sanchez v. Gama and the Arizona Association of Defense Counsel’s Opposition to the proposed rule change. In addition to the arguments already raised, I write separately to add that equal access among litigants to the salient facts of a dispute is a hallmark of our modern disclosure rules and serves the express purpose of early evaluation and possible disposition of the litigation. The proposed rule change will be a step backwards as the attendant increase in costs will chill the complete and accurate exchange of information during discovery. Litigants to injury cases review medical records kept by treating physicians, which are notes open to subjective interpretation by the parties. Evidence is also often presented by plaintiffs through hearsay testimony and disclosures, which are inaccurate for various reasons. Frequently, the resolution of a case is delayed by either party’s misinterpretation of those material facts that have not been previously, clearly stated by the treating physician. Maintaining equal access to fact witnesses like treating physicians will ensure that both plaintiffs and defendants have accurate information to evaluate cases for possible settlement.

    The petition for a rule change should be rejected. Thank you for your consideration.

    20 May 2014 05:22 PM
    Barry D. Halpern (#005441)
    Sara J. Agne (#026950)
    Joy L. Isaacs (#030693)
    One Arizona Center
    400 E. Van Buren
    Phoenix, AZ 85004-2202
    Telephone: (602) 382-6000
    Attorneys for Arizona Medical Association

    The Arizona Medical Association (“ArMA”) does not view this petition as a “plaintiff” or “defense” issue. ArMA believes that the expectations, impositions on physicians and patients, and financial impact of physician testimony are unique.

    Compensation for a treating physician’s testimony is not, as characterized by the AADC, a “privilege.” The decades-old practice of compensating a treating physician for time spent testifying simply recognizes that testimony regarding complicated medical issues is never simply “factual.” If a party simply wanted “facts,” a records subpoena should suffice. It is the physician’s highly specialized knowledge and expertise that is sought in a deposition or at trial – all of which is expert testimony.

    The AADC also misses the mark in asserting that the Sanchez ruling would decrease costs. The costs of collateral litigation to determine the distinction between fact and expert witness testimony and the costs to treating physicians attempting to delineate the limits of purely “factual” testimony would both increase. Without the proposed amendment to Rule 26(b)(4), Ariz. Civ. P., a physician would frequently have to hire counsel to advise on the parameters of his or her testimony.

    Moreover, the AADC’s contention that a judge would only have to look at a party’s Rule 26.1 disclosure statement to determine whether a witness was a fact witness or expert witness is fatuous. The civil dockets are clogged with lawyer fights over myriad disclosure issues.

    For these reasons, in addition to those provided in its Formal Comment, ArMA supports the amendment to Rule 26(b)(4), as proposed in Rules Petition R-13-0042.

    20 May 2014 06:31 PM
    Jacob Kost
    SUITE 5
    TELEPHONE (602) 272-5289
    FAX (602) 272-8634
    email pmcinc@cox.net

    Please see Message Attachment


    20 May 2014 06:34 PM
    Peter Grosso D.C.
    6544 West Thomas Rd #37
    Phoenix, Az 85033

    I have been treating patients in Arizona as a licensed Chiropractor since 1988, and have had the good fortune to hep patients with many different types of injuries over the years. Unfortunately, I've experienced increasing problems treating patients that have accident related injuries. The reason for this is simple: defense attorneys have become increasingly disrespectful of
    doctors’ time and antagonistic in their approach to gathering information for their cases. Over the years I’ve been involved in more than a few depositions, arbitration's, and jury trial appearances and have witnessed a growing sort of arrogance and unprofessional demeanor to which doctors are subjected, while trying to offer unbiased expert testimony. In my experience one law firm that has led the way in this changing attitude is the Cavanaugh Law Firm, as they recently succeeded in convincing the Court of Appeals to strike down a long-standing standard practice of compensating doctors for their time and expertise. Of course, often times a plaintiff lists a treating doctor as a trial witness and it is necessary for the defense to depose them. However, the practice that I have seen is the scorched-earth deposing of doctors, as well as other staff, regardless of whether the plaintiff plans to call the doctors as witnesses and even in arbitration cases that are supposed to be on a fast-
    track. As it was, the Cavanagh Law Firm took advantage as much as possible in summoning doctors such as myself to appear in court proceedings when we were being compensated to some degree, and with the recent Sanchez ruling negating attorneys’ responsibility to pay the treating doctors’ expert witness fees,
    they will undoubtedly take FULL advantage of the situation and tie all
    doctors up in court as often as they wish for as long as they wish! Other law firms are pursuing the same abusive strategy. The lack of respect, regard or concern for the treating doctor's time affects not only the doctors but their staff and patients, all of whom lose either care or income when the doctor is out of the office and tied up in court. To now remove all monitory consequence to the lawyers pushing this practice will only worsen the effect on doctors and patients and lead to the even more indiscriminate use of the subpoena on doctors to be deposed or appear in court resulting in far less effective treatment for our patients. Meanwhile, the attorneys are still receiving their hourly rates without disruptions or consequences!

    It is for these obvious reasons that I petition you to please reconsider this undoing of the previous law that applied an excellent common sense solution which encouraged attorneys not to abuse a doctor's time allowing us to give our patients the level of care they have come to expect and fully deserve.


    Peter E. Grosso D.C.

    20 May 2014 06:40 PM
    Glenn Hamer
    Arizona Chamber of Commerce and Industry
    3200 N. Central Avenue
    Suite 1125
    Phoenix, AZ 85012
    015777 (inactive)

    The Arizona Chamber of Commerce and Industry (“Arizona Chamber”) respectfully submits this comment to express our opposition to Petition R-13-0042 to amend Rule 26(b)(4)(C) of the Arizona Rules of Civil Procedure. The Arizona Chamber is a nonpartisan, nonprofit organization that is the leading statewide advocate for the Arizona business community. Our diverse membership employs 250,000 Arizonans in all business sectors from manufacturing to services and includes small, medium, and large employers. We are committed to advancing Arizona’s competitive position in the global economy by advocating free-market policies that stimulate economic growth, and protecting businesses from unnecessary and cumbersome legal and regulatory burdens.

    By requiring parties to pay treating physicians, who testify to the facts, that same fee as expert witnesses, Arizona would become an outlier compared to other states. The rule would place Arizona far outside the rules of other state courts and would place an increased burden on parties to pay for testimony that is necessary to the fair resolution of litigation. This is a burden that is not present in other states like New Mexico, California, Utah and Colorado and would have a negative impact on Arizona’s legal climate, and therefore Arizona’s business climate and our ability to be competitive in attracting business to our state.

    Additionally, Petition R-13-0042 warns that if this rule is not adopted by the Commission, doctors will refuse to treat patients due to their fear of being involved in litigation. This is a misguided and incorrect assumption. There is no risk of doctors declining care to patients who may be involved in litigation at a later date. It is not occurring in Arizona, or anywhere else in the country, and states have been operating under the current rules for decades. It is irrational to believe that doctors would ignore their professional responsibility simply because they want to avoid the possibility of having to testify in court.

    For these reasons, the Arizona Chamber strongly urges the Commission not to adopt the proposed changes to Rule 26 (b) (4) (c).

    20 May 2014 06:57 PM
    Lance A. Gardner D.C.
    6544 W. Thomas Rd #37
    Phoenix, AZ 85033
    Ph: 623-849-1188
    Fax: 602-391-2187

    Please add me to the list of those in support of R-13-0042 Petition to Amend Rule 26(b)(4)(C), Ariz. R. Civ. P.


    20 May 2014 07:01 PM
    (FIRM STATE BAR NO. 0003200)

    TELEPHONE: (602) 506-3800
    (STATE BAR NUMBER 011474)

    20 May 2014 07:47 PM
    Jonathan V. O'Steen
    O'Steen & Harrison PLC
    300 W. Clarendon Ave., Ste. 400
    Phoenix, AZ 85013-3424

    I support Petition R-13-0042 to amend Ariz.R.Civ.P. 26(b)(4)(C) to ensure fair compensation for treating doctors. I respectfully disagree with the objection lodged by Sherman Joyce of the American Tort Reform Association. Contrary to her claim, injured people often have difficulty finding specialists to treat them following an accident. I often hear from clients who are told by office staff that the physician does not treat accident victims. This problem only will become worse if the Supreme Court rejects this Petition and denies fair compensation to doctors for their time testifying. This will interfere with an injured person's ability to receive quality, affordable medical care.

    The ruling in Sanchez v. Gama encourages insurance companies and corporate defendants to take unnecessary depositions of treating doctors who already have authored medical reports regarding the care they provided. Trial courts will be burdened with the responsibility of resolving disputes between physicians and those noticing the doctor's deposition to determine what questions require compensation and what do not. That will unnecessarily increase the expense of litigation, by requiring more work from our courts (and defense attorneys paid hourly to litigate these matters) to the detriment of the "just, speedy and inexpensive determination of every action." See Ariz.R.Civ.P. 1.

    It is unfair to expect the cost of Sanchez v. Gama to be borne entirely by treating doctors, while all of the other actors (including attorneys, court reporters, videographers and court staff) are compensated fairly for their time. If a treating doctor's testimony is integral to a case, insurance companies and corporate defendants can afford to compensate these doctors in a fair manner.

    21 May 2014 02:03 AM
    Barbara T.Brown
    1215 E Ruth Ave.
    Phoenix Arizona 85020
    602 570-0127

    May 20,2014

    Please accept my strong opposition to the proposed rule, both overbroad and unnecessary, which was crafted to negate Sanchez. While I no longer practice law,I was a civil rights lawyer for many years and am currently representing myself in a wrongful death case with limited funds and am dependent upon the testimony of a treating physician since expert witness fees are prohibitive. As both a former civil rights attorney and current personal injury litigant with limited funds I believe I provide a unique perspective on the ill advised attempt to co-opt Sanchez by scare tactics of purported unintended consequences. I applaud Sanchez not only for the equal treatment it mandates regarding treating physicians as percipient fact witnesses but also for recognition of the artificial barriers to justice that unnecessary litigation costs create. I have long been aware of the importance of the dual concerns of Sanchez including equal treatment of the same class of witnesses and the facilitation of access to the courts which I understand is a primary mandate of the Arizona Supreme Court, well reflected in the Court of Appeals Sanchez opinion which should remain as controlling unless or until the facts and the law before an appellate court or the Arizona Supreme Court in its reviewing capacity deem otherwise based on an expansion of facts or law, and not through unsupported fears of limited access to medical care (absurd in the era of Medicare, Obama care, Accountable Care, and Medical Homes, as well as expanding Eings and free standing Urgent Care facilities etc. In addition,the trial court has ample means at its disposal to deal with discovery abuses such as depositions that are mischaracterized as mere fact witness depositions that are really expert witness depositions, including assessing expert witness fees as well as monetary sanctions. Further the Sanchez criteria for characterizing a witness as that of a treating physician as opposed to an expert witness is in accord with the 9th circuit opinion in Goodman v.Staples, 644 F.3d 817 (2011).

    For additional comments see attachment.


    25 May 2014 02:23 AM
    Allen Earl Stout, DC, RN
    Stout Wellness Center
    5130 Highway 95
    Fort Mohave, Arizona. 86426

    To the Arizona Supreme Court:

    I am writing in support of R-13-0042. I have treated many patients involved in personal injury cases over the last 20 plus years.

    Recently, I have seen medical and casualty industry personnel exploit new rules that allow them to compel physician testimony regarding treatment provided to their patients without paying expert witness compensation. In my case, I have seen the number of depositions/court summons increase dramatically.

    It is clear that insurance industry personnel are using the new rules to harass doctors like myself. Forcing us to leave our practices to testify without the usual compensation afforded expert witnesses, causes us direct loss of income that is needed to maintain our finacial viability in difficult economic times. This situation is placing physicians like myself in an ethically dilemma: Do we stop treating patients who may face insurance litigation in leu of other patient to ensure our financial viability (by eliminating frequent unpaid depositions)... or do we continue treating patients that may become involved in insurance litigation and face finacial losses?

    I already understand that many medical providers will not treat litigation cases now. Failure to approve R-13-0042 will cause the remaining physicians to follow their colleagues in order to avoid medical and casualty industry personnel exploitation.

    For the sake of fundamental fairness and patient safety, the petition should be granted.

    Thank you for your consideration.

    05 Jun 2014 09:52 AM
    Nicholas E. Vakula
    The Vakula Law Firm, P.C.
    11240 N Tatum Blvd
    Suite 120
    Phoenix, AZ 85028
    Ph: (480) 905-9114
    E-mail: vakulalawfirm@aol.com
    Fax: (480)905-9113
    James Kloss

    21 Jul 2014 12:08 PM
    James K. Kloss
    Phoenix Plaza Tower II
    2929 N. Central Ave., Suite 1700
    Phoenix, AZ 85012-2761

    Doctors are not some special category of people. They should be treated the same as everyone else who may be a witness with relevant testimony. If the president of a company witnesses a car accident, they are subject to being subpoenaed to give testimony. They are compensated at the statutory rate. The fact that they are losing time from running their business that day is just the price paid for being a member of society.

    Doctors are not some special breed of person. They are no better, no worse than any other witness and should be treated the same.

    The shrill posts by PI lawyers are complaining of a non-existent problem. No doctors are actually refusing to testify or treat patients. That is a completely unverified allegation that is nothing more than a scare tactic.

    Further, despite the unfair and inaccurate accusations to the contrary, defense lawyers are not out to depose treating doctors willy-nilly. A treating doctor is deposed in perhaps one PI case in 10, at most. Deposing a doctor carries with it high costs in lawyer fees, which carriers seek to avoid.

    This proposal is a bad solution in search of a non-existent problem.