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Because a doctor testified as a plaintiff’s treating physician rather than an expert and his opinions were not rendered solely for trial purposes, a common pleas court judge has ruled that the doctor’s testimony was not governed by the discovery rule for expert witnesses. Therefore, the judge said it did not matter that plaintiff George Scott did not list his doctor as an expert witness or submit an expert report from him. In Scott v. DeFeo, PICS Case No. 00-1357 (C.P. Lehigh June 16, 2000), Lehigh County, Penn., Common Pleas Court Judge Alan Black denied defendants William DeFeo and Michael Werner’s motion to preclude Dr. Raymond Fritz’s testimony in Scott’s medical malpractice action. Scott identified Fritz as a subsequent treating physician during discovery. Through discovery, the defendants obtained copies of all of Fritz’s treatment records. During Fritz’s trial deposition, he gave opinion testimony objected to by defense counsel. The defense wanted to exclude those opinions on the ground that admission of the doctor’s opinions violated Pennsylvania Rule of Civil Procedure 4003.5, which allows limited discovery of experts’ opinions that were developed in anticipation of litigation before trial. The rule does not apply to facts or opinions that were acquired independently. A treating physician in a personal injury case can fall under both categories, Black said. That physician will have facts and opinions about the treatment he or she provided to the plaintiff. And that information falls under general discovery rules, he said. But, the judge said, the treating physician might also be asked about the quality of care provided by a prior caregiver. That opinion would only be made in anticipation of trial and, therefore, is governed by Rule 4003.5 and the expert would have to be identified. “It is outside the scope of providing medical care to the patient,” he said. Black said the high court made a similar distinction in Miller v. Brass Rail Tavern, Inc., PICS Case No. 95-4337. In that case, the justices found that a coroner’s opinions about the time of a person’s death were expert opinions but were not made solely for litigation purposes. Therefore, the court said Rule 4003.5 was inapplicable. The defense in the Scott case objected to Fritz’s opinions concerning the cause of Scott’s pain and his prognosis, which were contained in his treatment notes. Black said those matters were clearly within Fritz’s scope of medical care and his opinions were not formed solely for trial purposes. Rule 4003.5 did not apply, he said. “In order to treat a patient, a physician must generally arrive at some opinion as to the cause of the patient’s condition. Also, the prognosis or possibility of future problems is an important consideration in determining the medical care to be provided by a treating physician,” Black said. “Significantly, Dr. Fritz recorded his opinions in these matters in his treatment notes. Therefore, as to these opinions, we believe that Dr. Fritz as the treating physician is in the same category as any fact witness.” “Significantly, Dr. Fritz recorded his opinions in these matters in his treatment notes,” the judge said. “Therefore, as to these opinions, we believe that Dr. Fritz as the treating physician is in the same category as any fact witness.” Black said the issue came down to the origin of the doctor’s opinions. “In summary, the issue is not whether Dr. Fritz was employed in anticipation of litigation or for trial, but whether the opinions elicited from him in his deposition were acquired or developed in anticipation of litigation or for trial,” he said. “Since Dr. Fritz was not asked any questions about the standard of care, and the only opinions objected to related to his diagnosis of [Scott's] condition and the prognosis of [Scott's] recovery, both of which are well within the scope of medical care he provided as the treating physician, his testimony does not violate Rule 4003.5.” But even if the rule were applicable, Black said, he would not have precluded Fritz’s testimony because the defense was not prejudiced by Scott’s failure to identify him as an expert or secure an expert report from him. “Dr. Fritz was clearly identified as a witness to be called by [Scott] at trial, and full copies of his treatment records were provided to the defendants. These treatment records included the very opinions to which defendants are now objecting,” Black said. “At his deposition the questions directed to Dr. Fritz by [Scott's] counsel were simply to elicit from him the very same information and opinions set forth in his treatment records.”

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