Treating Physicians vs. Expert Witnesses

Rule 26(b)(4)(A) of the amended rule of the Mississippi Rules of Civil Procedure titled: Trial preparation: experts appears to distinguish between experts retained or specially employed to provide expert testimony (hired guns) in part (ii) and an expert who has not been retained or specially employed to provide expert testimony (such as a treating physician) and provide much less information.  The case of Chaupette v. State, 136 So. 3d 1041 (SCT 2014) states that a physician can testify without being accepted as an expert regarding:  1)  “the facts and circumstances surrounding the care and treatment of the patient”; 2) what his records about the patient reveal”; and 3) “what conditions the patient was suffering from if the opinion was acquired during the care and treatment of the patient.”  However, a physician cannot testify about the significance of a patient’s condition or industry standards without first being accepted as an expert.  (citing Foster v. Noel, 715 So 2d 174 and Langston v. Kidder, 670 So. 2d 1. So if the treating physician is just going to testify about the patient’s condition, treatment and his records, he doesn’t have to be listed as an expert.  If the treating physician testifies about the effect of the injury or condition, such as future restrictions or future medical expenses, he does need to be listed as an expert.  To be safe, the physician should be listed as an expert per Rule 26.