When litigating a personal injury matter, it is very important to retain and disclose medical experts as part of the trial strategy to get the medical damages into evidence. Over the years, most attorneys have been able to use the treating physicians and their daily medical reports to supplement the NRCP rule 26 requirement that “experts” prepare a report if they plan on testifying. The testimony will normally be limited to that report or to the treatment rendered. This is somewhat of a thorny issue for litigators. When must an attorney designate an “expert” and when is it sufficient to use the “treating” physician label? The 9th circuit recently held in Goodman, that the traditional rule of a medical doctor testifying to his treatment as a treating doctor is still allowed, however, it can’t go beyond the scope of that treatment without needing the “expert report” and expert designation. Below is the holding of the 9th Circuit.
US Court of Appeals, 9th Circuit, Goodman v. Staples the Office Superstore, LLC, 2011. Federal rule of civil procedure 26 (a)(2) requires a party to timely disclose a written report of a witness “if the witness is one retained or specially employed to provide expert testimony in the case." Generally speaking, treating physicians are excused from this requirement. They are a species of percipient witness. They are not specially hired to provide expert testimony; rather, they are hired to treat the patient and may testify to and opine on what they saw and did without the necessity of the proponent of the testimony furnishing a written expert report. In this case, the plaintiff’s treating doctors not only rendered treatment, but after the treatment was concluded, these very same doctors were provided with additional information by plaintiff's counsel and were asked to opine on matters outside the scope of the treatment they rendered. The District Court ruled that these physicians would be allowed to testify to the opinions they formed in the course of caring for the patient, but because no Rule 26 expert witness report had been provided, the court precluded the treating doctors from testifying to opinions they formed afterward, opinions solicited from them solely for the purpose of the litigation. We hold today that when a treating physician morphs into a witness hired to render expert opinions that go beyond the usual scope of a treating doctor's testimony, the proponent of the testimony must comply with Rule 26(a)(2).
However, because the law regarding these hybrid experts was not settled, and because treating physicians are usually exempt from Rule 26 (a)(2) requirements, we exercise our discretion to apply this clarification prospectively.
Therefore, it should be a clear personal injury practice to designate your treating physicians as experts if you believe they will cross the line and give testimony outside the scope of the treatment rendered.