DONNA M. PLUNKETT, Plаintiff and Appellant, v. JOSEPH T. SPAULDING, Defendant and Respondent.
No. C016864
Third Dist.
Jan. 21, 1997.
52 Cal.App.4th 114
Murphy, Pearson, Bradley & Feeney and Mark E. Ellis for Plaintiff and Appellant.
OPINION
SCOTLAND, J.—This appeal poses the question whether a party who intends to call a treating physician to testify at trial not only as to the physician‘s treatment of a patient, but also to give an expert opinion on the standard of care that another physician should have employed when treating the patient, must provide an expert witness declaration during discovery. (
Donna M. Plunkett (plaintiff) designated two of her treating physicians as persons whose expert opinion testimony she expected to offer in evidence in this medical malpractice action. (
On appeal, plaintiff contends expert witness declarations were not required for these witnesses, even if she intended to elicit standard of care testimony from them, because they were not “‘retained’ by [her], meaning hired and then paid a fee in return for providing an opinion as an expert witness. [They] were simply physicians who were currently treating [her].” We disagree.
As we shall explain, expert witness declarations would not have been required if the treating physicians were expected to testify only as to their treatment of plaintiff, including diagnosis and prognosis. However, when in addition to this testimony they were asked to provide expert opinions on the standard of care that defendant should have used in treating plaintiff, they became experts “retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial
Consequently, the trial court correctly held that plaintiff was required to provide expert witness declarations concerning her treating physicians’ expected standard of care testimony and that her failure to do so was a basis to exclude said testimony. (
We conclude, however, the court erred in ruling on plaintiff‘s motion to submit a tardy expert witness declaration for one of her treating physicians. Because the court did not consider and apply all of the factors which the statute requires to be taken into account, it abused its discretion in denying the motion. Finding the error prejudicial, we shall reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was diagnosed with cervical cancer. Defendant, a surgeon and urologist, was employed by plaintiff to diagnose and treat her cancer. He performed surgery, during which plaintiff‘s uterus, bladder and other surrounding tissues were removed.
Following the surgery, plaintiff learned from another physician that the cancer had spread to some adjacent lymph nodes. Radiation to treat the cancerous lymph nodes was administered by Dr. Lanceford M. Chong, a radiologist. Thereafter, plaintiff was treated by Dr. Kimberly Fillmore, an obstetrician/gynecologist.
Plaintiff sued defendant, and other doctors who are not parties to this appeal, for medical malpractice. The complaint alleges defendant “failed to conform to the applicable standard of сare in treating [plaintiff] and failed to properly diagnose and treat her cervical cancer condition,” which resulted in the unnecessary removal of her bladder and the spread of cancer in her lymph nodes. The complaint further alleges defendant failed to properly disclose all the material information, including information concerning “radiation treatment, or other alternative treatments,” necessary to enable plaintiff to make an informed decision regarding medical intervention. According to the complaint, if plaintiff had been informed properly, she would have pursued treatment earlier, and would have elected treatment different from, or additional to, the surgery performed by defendant.
Defendant identified his experts in a similar fashion, naming four physicians, including himself, whose expert opinions he expected to offer in evidence at trial. For each, defendant submitted an expert witness declaration in compliance with
Defendant did not take the depositions of Dr. Chong or Dr. Fillmore.
In his opening statement to the jury, plaintiff‘s counsel stated his intention to call Dr. Chong and Dr. Fillmore to testify that defendant “fell below the standard of care in his explanation to [plaintiff] and his prescription and removal of [her] bladder.” According to counsel, the testimony of Dr. Chong and Dr. Fillmore, and that of plaintiff‘s retained expert, Dr. Melvin Shiffman, would show plaintiff‘s bladder did not have to be removed because radiation therapy combined with radical hysterectomy surgery (1) is a treatment within the standard of practice for cervical cancers, (2) would hаve been a reasonable alternative treatment for plaintiff‘s cancer, and (3) is an alternative that should have been disclosed to plaintiff so she could have decided whether to choose it rather than the surgery performed by defendant.
Defendant moved to preclude Dr. Chong and Dr. Fillmore from testifying as to the applicable standard of care in treating cervical cancers, arguing plaintiff‘s failure to submit expert witness declarations for Dr. Chong and Dr. Fillmore precluded her from introducing their testimony on a physician‘s
Plaintiff responded that, because she had not “retained” Dr. Chong or Dr. Fillmore, expert witness declarations were not required concerning their testimony, regardless of whether she expected to elicit their expert opinions on the applicable standard of care.
The trial court ruled in defendant‘s favor, holding the statutory scheme required plaintiff to submit expert witness declarations for treating physicians Chong and Fillmore if she desired to elicit their testimony concerning the standard of care. Because plaintiff failed to provide such declarations, the court ruled Dr. Chong and Dr. Fillmore would be permitted to testify only about their knowledge and treatment of plaintiff.
Thereafter, plaintiff took testimony from Dr. William Graves, a gynecologist who examined plaintiff, diagnosed her cervical cancer, referred her to defendant for surgery, and assisted defendant in the surgery. On direct examination, Dr. Graves testified concerning his presurgery examination of plaintiff, his consultations with defendant before and after the surgery, the extent of tissue removal required by an anterior pelvic exteneration (the surgical procedure performed on plaintiff), and his review of a pathological evaluation of the tissue removed from plaintiff.
During cross-examination, defendant‘s counsel elicited from Dr. Graves, without objection, expert opinion testimony on the standard of practice for physicians treating cervical cancers such as plaintiff‘s. Dr. Graves testified that radiation therapy, rather than surgery, would not be an effective treatment option for a tumor such as plaintiff‘s, and that the standard of care neither permitted recommendation of radiation, rather than surgery, as a primary therapy in such a case, nor required performance of a biopsy on the bladder before it was removed to confirm whether the cancer had spread to involve the bladder.
Plaintiff then called Dr. Fillmore to testify; the court did not permit her to answer any questions unrelated to her postsurgery treatment of plaintiff.
After Dr. Fillmore‘s testimony, plaintiff moved to augment her expert witness disclosure to indicate an intention to seek “standard of care” testimony from Dr. Chong. Plaintiff relied on
Although the court expressly found plaintiff‘s failure to submit an expert witness declaration regarding Dr. Chong‘s testimony was done in “good faith,” it denied the request, finding the motion did not present such “exceptional circumstances” as to warrant forgiving its untimeliness. (
Dr. Chong then testified concerning his postsurgery treatment of plaintiff with radiation, and his belief that plaintiff would have been a candidate for pre-surgery radiation therapy.
Plaintiff has not presented us with a transcript of the trial testimony of her retained expert, Dr. Shiffman, or of defendant‘s witnesses, Dr. Skinner and Dr. Ballon. We have only the closing argument by counsel, in which they suggest Dr. Shiffman testified that defendant‘s removal of plaintiff‘s bladder was improper because he neglected to confirm first with a pathological evaluation (such as a biopsy) that the cancer had spread to her bladder, or to seek a second opinion prior to surgery from a radiation oncologist or radiotherapist on alternative treatments; and defendant testified, as an expert, that his treatment of plaintiff fell within the applicable standard of care.
The jury found defendant was not negligent.
DISCUSSION
I
“(1) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral оr deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial.
“(2) If any expert designated by a party under [section 2034, subdivision (a)(1)] is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration under paragraph (2) of subdivision (f).
•
“(3) Any party may also include a demand for the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by any expert . . . in the course of preparing that expert‘s opinion [if the expert is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action].”
The expert witness declaration required for any designated expert who is a party, an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action must be “signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of perjury and shall contain: [¶] (A) A brief narrative statement of the qualifications of [the] expert. [¶] (B) A brief narrative statement of the general substance of the testimony that the expert is expected to give. [¶] (C) A representation that the expert has agreed to testify at trial. [¶] (D) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including any opinion and its basis, that the expert is expected to give at trial. [¶] (E) A statement of the expert‘s hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney.” (
The parties agree that, during discovery, plaintiff did not submit expert witness declarations for treating physicians Chong and Fillmore after identifying them as witnesses expected to offer expert opinion testimony at trial.
In plaintiff‘s view, “‘treating’ doctors are considered distinct from ‘retained’ expert witnesses” for purposes of exchanging information pursuant to
Defendant disagrees, contending expert witness declaration requirements “apply to all proposed expert opinion testimony beyond that based on facts and events to which the expert was a percipient witness,” even without a paid retainer agreement between a party and the expert. Defendant argues that, when treating physicians will be called to testify regarding their treatment of a patient, including diagnosis and prognosis, such testimony “usually goes to the issue of damages, not liability. In such cases, there is no need to alert the other parties to the expected content of the physicians’ opinions.” Moreover, such testimony relates to opinions formed for the purpose of treatment, not for the purpose of testifying at trial. In contrast, a treating physician called to testify regarding the standard of care that should have been followed by another doctor addresses liability, and such testimony necessarily reflects opinions arrived at in anticipation of or in preparation for trial, the type of testimony covered by
Defendant complains that, if a plaintiff intends to call a treating physician to testify on the standard of care but does not provide an expert witness declaration to that effect, “opposing counsel will be misled into believing that the testimony will be limited to matters concerning the plaintiff‘s prognosis and treatment by that physician, and will not prepare to deal with [the standard of care testimony].” Such a result, he argues, would be at odds with “[o]ne of the primary purposes of
Last, defendant argues, plaintiff‘s construction of the statute would dramatically increase the cost of trial preparation: “Plaintiff‘s tactic would force defense counsel to guess which, if any, of the designated treating doctors should be deposed regarding his or her potential expert оpinion [on standard of care]. This would contravene the distinct purpose of [
For reasons which follow, we conclude that expert witness declarations would not have been required if plaintiff had only wanted Dr. Chong and Dr. Fillmore to provide expert testimony relating to their treatment of plaintiff, including diagnosis and prognosis. However, when in addition to this testimony they were asked to provide expert opinions on the standard of care that defendant should have used in treating plaintiff, they became experts “retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action[.]” (
In reaching this conclusion, we apply well-established rules of appellate review. The proper interpretation of statutory language is a question of law which this court reviews de novo, independent of the trial court‘s ruling or reasoning. (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699; Los Angeles County Safety Police Assn. v. County of Los Angeles (1987) 192 Cal.App.3d 1378, 1384.) We are guided by the fundamental rules of statutory construction. A court “‘“should ascertain the intent of the Legislature so as to effectuate the purpose of the law.“‘” (Cossack v. City of Los Angeles (1974) 11 Cal.3d 726, 732, quoting People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 132.) “In ascertaining legislative intent, a court must look to the language of the statute and ‘accord words their usual, ordinary, and common sense meaning based on the language used and the evident purpose for which the statute was adopted.‘” (People v. Catelli (1991) 227 Cal.App.3d 1434, 1448,
The purposes of California‘s discovery statutes are, “among other things, to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.” (Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1294; see also Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376.)
II
We begin with the question whether a treating physician who is asked by a party to give expert opinion testimony on the standard of care can be said to have “form[ed] and express[ed] an opinion in anticipation of the litigation or in preparation for the trial of the action,” within the meaning of
The common law rule is that “. . . a physician or other treating health care practitioner, who testifies regarding his or her knowledge of the patient‘s treatment, diagnosis or prognosis, does not express an expert opinion.” (Brun v. Bailey (1994) 27 Cal.App.4th 641, 652, 654; cf. Huntley v. Foster (1995) 35 Cal.App.4th 753, 754.) This is true whether the treating professional testifies only as to factual matters as to which any lay witness may testify (e.g., “I observed that the patient sustained an injury to his right foot“) or testifies as to the patient‘s diagnosis, prognosis and causation of the injury, based on the knowledge gleaned by the professional at the time of the patient‘s treatment and on the professional‘s experience in the particular field of expertise (e.g., “The patient‘s stress fracture of the second metatarsal will take three weeks to heal“). (Brun v. Bailey, supra, at pp. 651-653.)
The rationale for regarding a treating physician differently from other experts lies in the assumption that the treating physician‘s opinions are based upon information acquired from his or her personal observations of the patient. (Hurtado v. Western Medical Center (1990) 222 Cal.App.3d 1198, 1203.) “Because a percipient expert is not given information by the employing party, but acquires it from personal observation,
Moreover, generally speaking, a treating physician does not minister to a patient “in anticipation of the litigation or in preparation for the trial of thе action.” To the contrary, he or she diagnoses the patient‘s problem and administers treatment in response to it. The treatment is rendered on a schedule dependent on the patient‘s needs, not those of the litigation process. These factors are a basis for the traditional understanding that a treating physician who provides expert testimony on matters related to his or her treatment of a patient does not form and express an expert opinion in anticipation of litigation or in preparation for trial.
Because the expression of an opinion by a treating physician concerning “‘prognosis, diagnosis, causation of the injuries, duration, or as to the reasonableness and necessity of the doctors’ bills‘” is regarded as percipient testimony acquired from personal observation rather than from information provided by a party in anticipation of litigation or in preparation for trial, the expert witness declaration requirement of
However, the justification for categorizing a treating physician as a “fact witness” for purposes of discovery dissolves when his or her intended testimony extends beyond what the treating physician has observed, concluded and done, and addresses what another physician should have observed, concluded or done.
When a treating physician intends to testify as to what standard of practice applies generally to practitioners in the same or a related field, or whether the standard has been breached in a particular case, such opinion testimony is extraneous to that physician‘s treatment of the patient; is not based solely on the treating physician‘s personal observation of the patient; necessarily relies on information provided by the party; and is rendered for the purpose of trial rather than treatment.
Accordingly, a treating physician who is asked by a party to give expert opinion testimony on the standard of care that should have been used by another physician in treating the patient is one who, in the ordinary,
The question remains whether it can be said that a treating physician is “retained,” within the meaning of
When a treating physician has performed a medical examination of a party and has formed an opinion regarding the party‘s physical condition, including diagnosis and prognosis, the physician may be compelled to testify as to that opinion even though it is the product of the physician‘s expert training. (Agnew v. Parks (1959) 172 Cal.App.2d 756, 764; People v. Barnes (1931) 111 Cal.App. 605, 610; see also City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 234.) However, a party cannot impose upon an unwilling expert the obligation of undertaking the investigation, research and analysis required to form and express any other expert opinion. (Agnew v. Parks, supra, at pp. 763-764; People v. Barnes, supra, at p. 609.) Hence, a treating physician may not be compelled, against his or her will, to render an expert opinion on the standard of care that another physician should have employed in examining or treating the party. (Ibid.)
It follows, then, that a party in a medical malpractice action who elicits standard of care testimony from a treating physician necessarily does so pursuant to an agreement that the physician will exceed the ordinary role of a treating physician by providing other expert testimony for purpose of the litigation.
Must this agreement include a contract for remuneration (other than the expert witness fee required by statute for the actual time consumed in examining the expert [see pt. III, post]) before it can be said the expert has been “retained” for the purpose of forming and expressing an opinion in anticipation of litigation or in preparation for trial of the action?
Therefore, “retain” connotes either a relationship involving remuneration (as plaintiff insists) or an unpaid agreement to be in one‘s service (as defendant reasons).
When statutory language is capable of more than one construction, courts must construe it in the context of the nature and purpose of the statute as a whole and give it that meaning which most comports with the apparent intent of the Legislature. (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844; Moyer v. Workmen‘s Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230.)
As previously noted, California‘s discovery statutes are intended, among other things, to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their clаims and defenses; to expedite and facilitate both preparation and trial; to prevent delay; and to safeguard against surprise. (Beverly Hospital v. Superior Court, supra, 19 Cal.App.4th at p. 1294.)
Construing the word “retained” in
When a party provides opponents with the name and address of a treating physician from whom the party expects to elicit an expert opinion at trial (
Moreover, by not submitting an expert witness declaration for the treating physician, the party implies that the expected expert opinion testimony
In addition, the costs of trial preparation would be dramatically increased. As defendant correctly points out, opposing counsel would have “to guess which, if any, of the designated treating doctors should be deposed regarding his or her potential expert opinion [on standard of care]. This would contravene the distinct purpose of [
Applying an ordinary, commonsense meaning to the statutory language in a manner consistent with its evident purpose, we conclude that, when a treating physician has been designated by a party as a person whose “testimony in the form of an expert opinion [the] party expects to offer in evidence at trial” (
Consequently, the trial court correctly held that plaintiff was required to provide expert witness declarations concerning her treating physicians’ expected standard of care testimony and that her failure to do so was a basis to exclude said testimony. (
III
Plaintiff argues our interpretation is wrong because it makes related statutory language “unnecessary and mere surplusage,” a result which must be avoided. The language to which she refers is contained in the following sections dealing with the witness fee that must be provided to an expert called to testify at a deposition or at trial in a civil action.
In plaintiff‘s view, by identifying treating physicians as a category other than retained experts described in
Before its amendment in 1995, section 2034(i)(2) provided that expert witness fees must be paid for the actual time consumed in the deposition of not only a retained expert but also of “(B) a treating physician and surgeon or other treating health care practitioner who is to be asked to express an opinion during the deposition[.]” (Stats. 1993, ch. 678, § 1.)
In Brun v. Bailey, supra, 27 Cal.App.4th 641, this court held the aforesaid language of section 2034(i)(2)(B) did not require payment of an expert witness fee to a treating physician who “testifies regarding his or her knowledge of the patient‘s treatment, diagnosis or prognosis” because, pursuant to common law, such testimony does not constitute an expert opinion. (27 Cal.App.4th at pp. 654-655.) Hence, a treating physician who gave only percipient expert opinion testimony was not entitled to an expert witness fee, whereas a trеating physician who also gave standard of care opinion testimony would receive such compensation.
The Legislature acted quickly to abrogate this holding (Kennedy & Martin, Cal. Expert Witness Guide (Cont.Ed.Bar 2d ed. 1996) § 10.38, p. 285) by amending the expert witness fee requirement of section 2034(i)(2) to clarify that it applies not only to retained experts but also to “(B) a treating physician . . . who is to be asked . . . to express opinion testimony, including opinion or factual testimony regarding the past or present diagnosis or prognosis made by the practitioner or the reasons for a particular treatment decision made by the practitioner . . . .” (Stats. 1995, ch. 797, § 1, italics added.)
This amendment indicates that, contrary to the holding in Brun v. Bailey, supra, 27 Cal.App.4th 641, the Legislature intended the second clauses of sections 2034(i)(2) and 68092.5(a) to apply to treating physicians who give percipient expert opinion testimony on the patient‘s treatment, diagnosis or prognosis. In other words, the Legislature intended to distinguish said testimony from that of a retained expert covered under the clause (A) of section 2034(i)(2), such as a treating physician who has been retained to give an opinion on the standard of care that should have used by another physician.
We recognize that, in amending
An interpretation which would render terms of a statute surplusage should be avoided, and every word should be given some significance, leaving no part useless or devoid of meaning. (California State Employees’ Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 378 [223 Cal.Rptr. 826].) However, no part of
IV
We next consider plaintiff‘s contention that the court erred in excluding Dr. Chong‘s standard of care testimony rather than permitting plaintiff to submit a tardy expert witness declaration setting forth that expected testimony.
The trial court shall impose the exclusion sanction for failure to submit an expert witness declaration only if noncompliance is “unreаsonabl[e]” (
Whether to grant relief from the failure to timely submit an expert witness declaration is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of manifest abuse of that discretion. (Cf. Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476 [270 Cal.Rptr. 188].)
In seeking leave to submit a tardy expert witness declaration for Dr. Chong‘s proposed standard of care testimony, plaintiff‘s counsel addressed all the factors which the statute requires the court to take into account in ruling on the motion. Counsel explained that the failure to submit one earlier was due to his mistake in believing the statute did not require expert witness declarations for treating physicians who are expected to give standard of care testimony. Counsel noted the motion was made promptly, the day after the trial court sustained defendant‘s objection to the testimony in question and counsel thus learned of his mistaken interpretation of the statute. There is some indication in the record, although not conclusive, that plaintiff served defendant with a copy of the proposed expert witness information. In any event, counsel made an oral offer of proof in defendant‘s presence as to the standard of care testimony plaintiff wished to elicit from Dr. Chong, i.e., that radiation combined with a radical hysterectomy would have had an equal or better success rate for plaintiff‘s cervical cancer than would the treatment used by defendant; that the applicable standard of care required defendant to discuss this option with plaintiff; and that the standard of care
In opposing the motion, defendant‘s counsel simply argued that granting plaintiff‘s request would be “extremely prejudicial” to the defense, but did not specify why, other than objecting that he would have to “conduct entirely new discovery and prepare for an entirely different case than the one [plaintiff] came here to court to present.”
Ordinarily, we would presume the trial court considered all the factors set forth in
The discussion between the court and counsel establishes the court was concerned only with the timing of the motion. It made no finding that defendant would suffer prejudice if plaintiff‘s motion was granted, nor did it consider whether plaintiff had offered defendant “every opportunity to recover from any disadvantage caused by the surprise.” (Dickison v. Howen, supra, 220 Cal.App.3d at p. 1479;
In denying the motion by focusing on its timing and failing to consider and apply all the factors set forth in
We cannot say the error is harmless.
An honest mistake of law is a valid ground for relief based on “mistake, inadvertence, surprise or excusable neglect” where the problem is complex and debatable. (City of Ontario v. Superior Court (1970) 2 Cal.3d 335, 346 [85 Cal.Rptr. 149, 466 P.2d 693] [
Under the circumstances, we are compelled to conclude that, if the trial court had considered all the statutory factors, there is a reasonable probability the court would have granted plaintiff‘s motion for leave to file a tardy expert witness declaration and allowed Dr. Chong‘s standard of care testimony. It also is reasonably probable the jury would have reached a result more favorable to plaintiff if the jurors had heard Chong‘s expert opinion that defendant‘s treatment of plaintiff‘s cancer did not meet the applicable standard of care. Accordingly, the judgment cannot stand. (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 254-255 [7 Cal.Rptr.2d 101]; Gordon v. D & G Escrow Corp. (1975) 48 Cal.App.3d 616, 626-627 [122 Cal.Rptr. 150].)
The judgment is reversed. The parties shall bear their own costs on appeal.
Sparks, Acting P. J., concurred.
DAVIS, J., Concurring and Dissenting. — The determinative facts are few. Upon demand a party must provide a list of every expert whose opinion the party expects to introduce at trial. (
I concur in the reversal of the judgment, and fully concur with part IV of the discussion in the majority opinion that the trial court prejudicially abused its discretion in denying the plaintiff‘s motion under subdivision (l) to submit a tardy expert witness declaration subject to ameliorative cоnditions. In light of this prejudicial error, I would not even reach the issue of whether it was correct at the outset to apply the “hired-gun” provisions of subdivision (a)(2) to the plaintiff‘s treating doctors. However, as I shall explain, on the merits of the issue I must respectfully dissent from the conclusion in part II and part III of the discussion in the majority opinion.
I. “Plain” meaning
The initial question is whether the language of subdivision (a)(2) is ambiguous when applied to the particular set of facts presented by this case such that we need to look to any sources external to this subdivision for aid in interpreting it. (Sanford v. Garamendi (1991) 233 Cal.App.3d 1109, 1117 [284 Cal.Rptr. 897].)
As we reiterated in Brun v. Bailey (1994) 27 Cal.App.4th 641, 651-653 [32 Cal.Rptr.2d 624], under the common law a doctor‘s testimony regarding a patient‘s past treatment (including diagnoses and prognoses) is not an
Even if we do pare a treating doctor‘s testimony into different piles of shavings, I do not think we can say the plaintiff‘s treating doctors were retained “for the purpose” of offering expert testimony at trial and thus come within subdivision (a)(2). The plaintiff retained them for the purpose of treatment. Only later during the course of this already established relationship did the plaintiff extend the scope of their duties by requesting an opinion on her prior treatment by the defendant. I am not convinced, as is the majority, that adding additional duties without commensurate remuneration can constitute a separate gratis “retainer.”
To conclude that a treating doctor‘s opinion on the compliance of previous treatment with the standard of care is not within the plain meaning of the statute does not play havoc with the purposes underlying
However, the fact the parties and the majority opinion impliedly or implicitly assume that a treating doctor‘s opinion on the quality of prior treatment is indeed segregable from the treating doctor‘s past diagnosis, and conclude explicitly that requesting an opinion regarding the quality of prior treatment creates a retainer separate from the treatment retainer, demonstrates the futility of attempting to categorize any language as having a “plain” meaning. Since my colleagues find the language ambiguous, and my colleagues are honorable men (cf. Shakespeare, Julius Caesar (Internat. Press ed. 1926) act III, scene 2, lines 87-77, 91-92, 98-99, 103-104), I follow them in their quest for meaning in sources external to the subdivision itself.
II. Interpretive aids
A. General principles
Absent irreconcilable differences, we should construe statutory language with reference to the scheme of which it is a part so that we may harmonize the whole. (County of Los Angeles v. State of California (1987) 43 Cal.3d 46, 58 [233 Cal.Rptr. 38, 729 P.2d 202]; Rideout Hospital Foundation, Inc. v. County of Yuba (1992) 8 Cal.App.4th 214, 219 [10 Cal.Rptr.2d 141].) If possible, we must give significance to every word, phrase, sentence, and part of an act in pursuing legislative intent. (People v. Hicks (1993) 6 Cal.4th 784, 796 [25 Cal.Rptr.2d 469, 863 P.2d 714]; Sanford v. Garamendi, supra, 233 Cal.App.3d at p. 1119.) Courts may adopt an interpretation creating surplusage only where it is unavoidable. (People v. Jones (1988) 46 Cal.3d 585, 601 [250 Cal.Rptr. 635, 758 P.2d 1165].)
From these postulates also flows the extrinsic interpretive principle of in pari materia. (2B Sutherland, Statutory Construction (5th ed. 1992) § 51.01,
Before attempting to draw meaning from other statutory provisions, one must first demonstrate their relevance to the provision at issue. I thus turn to a chronicle of the background of the provisions I consider significant.
B. Statutory history
1. Pre-1986: In 1968, the Legislature enacted
In 1978, the Legislature enacted former sections 2037 to 2037.9 as a comprehensive scheme to regulate the discovery of expert witnesses, which would prevail over other inconsistent discovery statutes. (Tahoe Forest Inn v. Superior Court (1979) 99 Cal.App.3d 509, 512-513 [160 Cal.Rptr. 314].) Former section 2037.3 required a party on request to provide both a list of expected expert witnesses and a brief narrative statement concerning each expert witness‘s proposed testimony. (Stats. 1978, ch. 1069, § 1, p. 3286.)2 Former sectiоn 2037.7 provided, “Any other provision of law notwithstanding, any party desiring to take the deposition of a person retained as an expert by another party to a case shall pay the expert a reasonable fee . . . .” (Stats. 1978, ch. 1069, § 1, p. 3287.) The Legislature promptly amended this provision in 1980 to add (in pertinent part) that the deposition of the expert had to be “solely for the purpose of obtaining any expert
2. 1986-1995: In 1986, the Legislature both amended
In 1988, the Legislature amended
In the same 1990 chapter, the Legislature amended
3. 1995 to date: In 1994, we had held in Brun that a chiropractor who testified at a deposition only as an “expert percipient witness” did not express an expert opinion under the common law, and thus was not entitled to expert witness fees under the 1990 version of the statute.5 (27 Cal.App.4th at pp. 645, 654-655.) To abrogate this holding (Kennedy & Martin, Cal. Expert Witness Guide, supra, § 10.38, p. 285), the Legislature promptly amended subdivision (a)(2) in 1995 (subsequent to the present dispute) to “revise this provision to include a treating physician . . . or other treating health care practitioner who is asked during the deposition to provide opinion testimony . . . including certain factuаl testimony.” Thus, the provision presently reads, “A party desiring to depose an expert witness, other than . . . , who is either (A) an expert described in [subdivision (a)(2)] except . . . , (B) a treating physician . . . or other treating health care practitioner who is to be asked during the deposition to express opinion
I have digressed at length on these numerous amendments not because they are all necessarily pertinent to the present dispute but to show that the topics of expert witness disclosure and fees for expert testimony have been the subject of repeated legislative scrutiny over three decades, and to show these topics have generally been considered together. Thus, this closely interwoven history of subdivisions (a)(2) and (i)(2), and
C.
As the plaintiff correctly points out, subdivision (i)(2) (and
In the first place, I do not think we can infer the 1995 amendment necessarily indicated Brun was “contrary” to previously existing legislative intent. As I have recounted above, a party initially had to pay an expert witness fee whenever deposing another party‘s retained expert regardless of the subject of the deposition testimony. From 1980 to 1986, an expert witness, such as a treating doctor, became entitled to fees only for opinion testimony at depositions. The 1986 enactment creating the statutory dichotomy between retained experts and treating doctors eliminated this limitation, entitling an expert witness to fees whenever “asked to express an opinion” at a deposition. In 1994, Brun merely explained the consequence for a treating doctor of using “opinion” in this statute in light of the common law rule for expert perception testimony. The amendment thus can reflect nothing more than the persuasiveness of the medical lobby to return to pre-1980 law, rather than any intent which underlay the 1986 creation of the dichotomy. Moreover, the assertion that the “minor redundancy” existing after the 1995 amendment did not impair the purpose of the amendment ignores the fact the superfluity was not a function of the 1995 amendment. It has existed since
III.
For all these reasons, I believe the trial court erred in subjecting the plaintiff‘s treating doctors to the requirements of subdivision (a)(2) as a condition of their testimony at trial on the defendant‘s compliance with the prevailing standard of care. However, even assuming the trial court labored under this misapprehension, I agree with the majority opinion that the trial court prejudicially erred in denying the plaintiff relief pursuant to subdivision (l). I therefore concur the judgment must be reversed.
A petition for a rehearing was denied February 18, 1997, and the opinion was modified to read as printed above. Respondent‘s petition for review by the Supreme Court was denied April 16, 1997.