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Structural Preservation Systems, Inc. v. Petty

June 21, 2007

STRUCTURAL PRESERVATION SYSTEMS, INC., APPELLANT,
v.
DAVID PETTY, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA-811-00) (Hon. Herbert B. Dixon, Jr., Trial Judge).

Per curiam.

Argued December 15, 2003

Before FARRELL, Associate Judge, and WAGNER and SCHWELB, Senior Judges.*fn1

In this suit for negligence against appellant, Structural Preservation Systems, Inc. (Structural), a jury awarded appellee, David Petty, damages in the amount of $150,000 related to injuries he sustained at his workplace when he tripped and fell over a metal plate in an area where Structural was performing repairs. Structural argues for reversal on the grounds that the trial court erred in: (1) permitting Petty's treating chiropractor to testify to expert opinions beyond the scope of her treatment of Petty without having designated her as an expert witness; (2) failing to require Petty to apportion his injuries, given his pre-existing injury; and (3) permitting Petty's chiropractor to render opinions beyond the scope of her own expertise. Finding that some of Petty's treating chiropractor's opinion testimony exceeded the permissible bounds of her expertise and treatment, we reverse and remand for a new trial on damages.*fn2

I.

Structural argues that the trial court erred in allowing Petty's treating chiropractor, Cathlyn Hartung, to testify as to opinions she formulated for purposes of the litigation, rather than for the purpose of treating Petty. Specifically, Structural contends that Dr. Hartung should not have been permitted to render opinions concerning Petty's treatment by the physicians and physical therapist who treated him before he came under her care, the necessity for such treatment and the reasonableness of the charges for their services. Structural argues that such testimony amounted to expert testimony requiring that Petty identify Dr. Hartung as a witness under Super. Ct. Civ. R. 26 (b)(4). Petty argues that compliance with Rule 26 (b)(4) was not required in order for Dr. Hartung to render an opinion with respect to causation and his prognosis for future pain and suffering. He contends that it was permissible for Dr. Hartung to refer to other treating physicians' records in developing her opinions as long as they were obtained in order to provide treatment, as they were here. Petty also responds that Dr. Hartung's testimony concerning his medical expenses is inconsequential because it was within the trial court's discretion to admit such evidence without expert testimony.

A. Applicable Legal Principles

Pursuant to Super. Ct. Civ. R. 26 (b)(4), a party has the right to discover prior to trial the facts and opinions of an expert "acquired or developed in anticipation of litigation or for trial. . . . " Opinions developed by an expert in the course of a patient's treatment and those developed in preparation for litigation are treated differently under Rule 26 (b)(4). "Insofar as a physician obtains and develops his information and opinions in the course of his treatment of a patient, he becomes an 'actor or viewer' who should be treated as an ordinary witness rather than as an expert covered under Rule 26 (b)(4)." Adkins v. Morton, 494 A.2d 652, 657 (D.C. 1985) (citations omitted); see also Safeway Stores, Inc. v. Buckmon, 652 A.2d 597, 606 (D.C. 1994) (holding that a physician witness was not an expert subject to Rule 26 (b)(4)'s requirements where his opinions were acquired during the course of the patient's treatment).

In determining whether the witness must be disclosed under Rule 26 (b)(4), the focus is not merely on whether the witness has been identified as a treating physician, "but rather on the substance of the testimony." Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993) (citation omitted).*fn3 Federal courts construing the comparable federal rule have held that a treating physician must be disclosed as an expert where the treating physician's opinion is based upon medical records not viewed in the course of treatment.*fn4 See id.(holding treating physicians' opinions on standard of care were classic expert testimony formulated for litigation and not for treatment, and therefore, properly excluded for lack of compliance with Rule 26 (b)(4)); Riddick v. Washington Hosp. Ctr., 183 F.R.D. 327, 331 (D.D.C. 1998) (noting that treating physician's opinion on causation and injury would be excluded for non-compliance with Rule 26 (b)(4) if based on review of another health care provider's records for litigation, rather than treatment purposes). Generally, "'[d]ecisions regarding the scope and the conduct of discovery will be reversed only upon a showing of abuse of discretion.'" Hollins v. Federal Nat'l Mortgage Ass'n, 760 A.2d 563, 579 (D.C. 2000) (quoting Dalo v. Kivitz, 596 A.2d 35, 36 n.1 (D.C. 1991)); see also Regional Redevelopment Corp. v. Hoke, 547 A.2d 1006, 1008 (D.C. 1988) ("Whether or not an expert who is not listed in an interrogatory can testify is within the wide discretion of the trial court."). Applying these general principles, we consider Structural's specific claims.

B. Analysis

Structural argues that Dr. Hartung's testimony as to the reasonableness of the cost of an MRI and the reasonableness of the need and fees for Petty's physical therapy exceeded the bounds of the treating physician exception to Rule 26 (b)(4)'s designation requirement. Petty responds that both the MRI report and the report of Dr. Kahanovitz, which indicated Petty's need for physical therapy, were reviewed by Dr. Hartung in the course of her treatment of Petty, and therefore fall within the treating physician exception. A treating physician can render opinions as long as those opinions are based on facts encountered in treatment. See Adkins, supra,494 A.2d at 657. In fact, Dr. Hartung testified that she relied on both the MRI report and Dr. Kahanovitz's report in forming her treatment plan for Petty. Therefore, according to her testimony, her opinion was based on information reviewed during the course of treatment. However, that simple recitation does not end the inquiry. The question is whether the substance of the opinion is of the type that would be formulated for treatment purposes or prepared in anticipation of litigation. See Patel, supra, 984 F.2d at 218 (citation omitted) (noting that the focus of the inquiry for purpose of determining Rule 26 (b)(4)'s disclosure requirements should be on the substance of that testimony).

Structural argues that Dr. Hartung should not have been allowed to testify that Dr. Kahanovitz's opinion that Petty needed physical therapy was correct. We agree that a treating physician's opinion as to the correctness or incorrectness of another treating physician's opinion tends to be of the type associated with preparation for litigation, rather than simply treating the patient. "[A] treating physician requested to review medical records of another health care provider in order to render opinion testimony concerning the appropriateness of the care and treatment of the provider would be specifically retained notwithstanding that he also happens to be the treating physician." Brown v. Best Foods, 169 F.R.D. 385, 389 (N.D. Ala. 1996) (quoting Wreath v. United States, 161 F.R.D. 448, 450 (D. Kan. 1995), and also citing Patel, supra, 984 F.2d at 218)). Simply because one is a treating physician does not mean that he or she cannot hold opinions arising in the course of a patient's care and treatment and at the same time develop expert opinions solely for purposes of the trial. When the expert does the latter, it appears to be a reasonable requirement that such opinions be disclosed under Rule 26 (b)(4).

Thus, unless relevant to his or her own treatment decisions, a treating physician or other healthcare expert may not testify as to the propriety of decisions and treatment provided by other healthcare professionals, even if the opinion is formulated from materials reviewed during the treatment process. Applying that principle, Dr. Hartung should not have been permitted to testify about the appropriateness of Dr. Kahanovitz's recommendation for physical therapy. Although she reviewed his treatment plan in the process of forming her own approach to treatment, Dr. Hartung's commentary on whether physical therapy was necessary exceeded permissible bounds. Absent some indication that it was necessary for Dr. Hartung to evaluate the reasonableness of Dr. Kahanovitz's care in order to form her own treatment plan, allowing her to testify about the reasonableness of another doctor's treatment has the earmarks of expert testimony that was prepared for litigation purposes. Therefore, absent compliance with the requirements of Rule 26 (b)(4), it should not have been admitted. A similar result obtains with respect to Dr. Hartung's testimony as to the reasonableness of the ...


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