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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
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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
    [email protected]

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

    [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
    [email protected]

    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
    [email protected]
    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)
    [email protected]
    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
    [email protected]

    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)
    [email protected]
    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)
    [email protected]

    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
    [email protected]
    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
    [email protected]

    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
    [email protected]

    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
    [email protected]

    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
    [email protected]

    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
    [email protected]


    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
    [email protected]

    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
    [email protected]
    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
    [email protected]
    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
    [email protected]
    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: [email protected]
    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)
    [email protected]
    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
    [email protected]

    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.
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