May a Treating Physician Be Compelled to Give Expert Opinion Testimony in Kentucky?

The issue sometimes arises in Kentucky medical negligence cases whether a treating physician who is giving a deposition may be compelled to answer questions that seek to elicit expert opinion that goes beyond factual testimony about the physician’s treatment. In an unpublished decision rendered in 2012, the Kentucky Court of Appeals answered in the negative – holding that a treating physician could not be required to give involuntary expert testimony.  Fryman v. Wiczkowski, 2012 WL 6061727 (Ky. App. 2012).

In Fryman, the plaintiff’s claim against an emergency medicine physician was dismissed for failing to produce expert testimony in support of his claim. One of the alleged points of error the Court considered was that the trial court should have compelled a treating cardiologist to answer various expert and standard of care questions posed by the plaintiff’s counsel at a discovery deposition. The Court, in an opinion by Judge Glenn Acree joined by Judges Denise Clayton and Donna Dixon (all still  members of the Court), held that a treating physician “should not be forced … to provide expert opinions on [a patient’s] behalf.”

The Court cited a 1934 New Jersey case (Stanton v. Rushmore, 169 A. 721 (N.J. 1934), as well as Charash v. Johnson, 43 S.W.3d 274 (Ky. App. 2000), for its holding. Charash had held that a treating physician who is not identified as an expert in discovery may not testify about events and facts “beyond those personally observed.” Id. at 280.

Fryman v. Wiczkowski was not published in the South Western Reporter but appears to meet the citation-for-consideration criteria of CR 76.28(4)(c).

NOTE: The foregoing post includes commentary reprinted from the forthcoming 2018 supplement to 6 Philipps & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2017 Thomson Reuters. For more information about this publication click here.

David Kramer is a Partner and Chair of the Litigation Section in the law firm of Dressman Benzinger LaVelle psc, with offices in Cincinnati, Ohio, and Crestview Hills and Louisville, Kentucky.