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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

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.
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