The Doctor As Witness
Opportunities To Give Testimony
(I.e. affirm, assert, bear witness, certify, corroborate, declare, demonstrate,
give evidence, give facts, indicate, make evident, prove, warrant, swear to.)
• As Fact Witness / Treating Physician / Prosecting Physician and/or as an Expert
• Personal Injury Cases
• Workers Compensation / Occupational Injuries – Illness / Employment Issues, Work Modifications -Absences, Temporary Disability
• Impairment Ratings – WC, SSA/SSI, Vocational Rehabilitation, Private Disability Insurance • Administrative Hearings – LLR / Board of Medicine, Peer
Review, Health & Prescription Insurance Coverage Issues, Educational Issues – Accommodations, Athletics
• Criminal Cases / Forensics – Domestic Violence, Child Abuse, Elder Abuse
• Family Court
• Professional Negligence – Yours or Others • Peer Review
• Your Patients’ Records
(Providing An Expert Opinion) •Most likely role in all of the foregoing situations •Testimony may be received by those requesting it through
certified report/opinion letter, affidavit, deposition,
in person before a tribunal/court, administrative bodies and commissions, or hospital entities
• Provide expert opinions as to standards of care, causation, extent of injury, disabilities and degree of impairment, prognosis
Practicing Medicine =‘s Witnessing and Testifying
The practice of medicine clearly involves frequent testifying, even if only giving
testimony/medical opinions concerning your patients to others when applicable
or by simple documentation within your own patient’s medical record.
Also, the converse is true.
Witnessing and Testifying =‘s Practicing Medicine
SC Code 40-47-20 Definitions (South Carolina Code of Laws (2014 Edition))
Practice of Medicine (pertinent subsections)
40-47-20(36)(e) rendering a written or otherwise documented medical opinion concerning the diagnosis or treatment of a patient or the actual rendering of treatment to a patient within this State by a physician located outside the State as a result of transmission of individual patient data by electronic or other means from within a state to such physician or his or her agent;
40-47-20(36)(f) rendering a determination of medical necessity or a decision affecting the diagnosis and/or treatment of a patient is the practice of medicine subject to all of the powers provided to the Board of Medical Examiners, except as provided in Section 38-59-25;
40-47-20(36)(h) testifying as a physician in an administrative, civil, or criminal proceeding in this State by expressing an expert medical opinion.
SC Code 40-47-110 (South Carolina Code of Laws (2014 Edition))
Misconduct Constituting Grounds For Disciplinary Action
(pertinent subsections – testimony danger)
SC Code 40-47-110(9) engaged in dishonorable, unethical, or unprofessional conduct that is likely either to deceive, defraud, or harm the public;
SC Code 40-47-110(23) failed to provide pertinent and necessary medical records to another physician or patient in a timely fashion when lawfully requested to do so by a patient or by a lawfully designated representative of a patient;
SC Code 40-47-110(24) improperly managed medical records, including failure to maintain timely, legible, accurate, and complete medical records; or
**SC Code 40-47-110(25) provided false, deceptive, or misleading testimony as an expert witness in an administrative, civil, or criminal proceeding in this State.
S.C. Code Regs. 81-60 Principles of Medical Ethics
A. A physician shall be dedicated to providing competent medical service with compassion and respect for human dignity.
B. A physician shall deal honestly with patients and colleagues, and strive to expose those physicians deficient in character or competence, or who engage in fraud or deception.
C. A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient.
Code of Medical Ethics
Of the American Medical Association
Council on Ethical and Judicial Affairs
(Opinions 2012-2013 Edition) 5.06 Confidentiality: Attorney-Physician Relation
The patient’s history, diagnosis, treatment and prognosis may be disclosed with the patient’s lawyer with the consent of the patient or the patient’s lawful representative.
A physician may testify in court or before a worker’s compensation board or the like in any personal injury or related case.
5.08 Confidentiality: Insurance Company Representative
History, diagnosis, prognosis and the like acquired during the physician-patient relationship may be disclosed to an insurance company representative only if the patient or a lawful representative has consented to the disclosure. A physician’s responsibilities to patients are not limited to the actual practice of medicine. They also include the performance of some services ancillary to the practice of medicine. These services might include certification that the patient was under the physician’s care and comment on the diagnosis and therapy in the particular case.
5.09 Confidentiality: Industry-Employed Physicians and Independent Medical Examiners Where a physician’s services are limited to performing an isolated assessment of and individual’s health or disability for an employer, business or insurer, the information obtained by the physician as a result of such examinations is confidential and should not be communicated to a third party without the individual’s prior written consent, unless required by law. If the individual authorized the release of medical information to an employer or a potential employer, the physician should release only that information which is reasonably relevant to the employer’s decision regarding the individual’s ability to perform the work required by the job.
When a physician renders treatment to an employee with a work-related illness or injury the release of medical information to the employer as to the treatment provided may be subject to the provisions of worker’s compensation laws. The physician must comply with the requirements of such laws, if applicable. However, the physician may not otherwise discuss the employee’s health condition with the employer without the employee’s consent or, in the event of the employee’s incapacity, the appropriate proxy’s consent.
SOUTH CAROLINA STATE BOARD OF MEDICAL EXAMINERS v. HEDGEPATH, 325 S.C. 166, 480 S.E.2d 724 (1997)
… [W]hether a physician commits ethical misconduct when he reveals a patient's confidences where the revelation is neither compelled by law (i.e. subpoena or statute) nor consented to by the patient. … [A] professional's duty to maintain his client's confidences is independent of the issue whether he can be legally compelled to reveal some or all of those confidences, that is, whether those communications are privileged. … A physician acts ethically when she maintains patient confidences, and when she provides confidential information to others as required by law or as authorized by the patient. … Respondent violated Reg. 81-60(D) when he voluntarily provided an affidavit breaching confidences entrusted to him by Mrs. C.
McCORMICK v. ENGLAND, 328 S.C. 627,494 S.E.2d 431 (Ct. App. 1997)
… [A]letter was prepared [for the Family Court] by Dr. England … addressed "To Whom It May Concern." In his letter, Dr. England … stated it was his medical opinion that McCormick was "a danger to herself and to her family with her substance abuse and major depressive symptoms," and concluded that she required hospitalization. There is no indication … that the letter was prepared under court order.
Does South Carolina recognize a cause of action for a physician's breach of the duty of confidentiality? Although many states have statutorily created a "physician-patient testimonial privilege," South Carolina has not enacted a similar statute and does not recognize the physician-patient privilege. … However, the absence of a testimonial privilege prohibiting certain in-court disclosures is not determinative … because this evidentiary privilege is distinguishable from a duty of confidentiality. … "The terms 'privilege' and 'confidences' are not synonymous, and a professional's duty to maintain his client's confidences is independent of the issue whether he can be legally compelled to reveal some or all of those confidences, that is, whether those communications are privileged.“… In South Carolina, our legislature has determined that, under certain circumstances, [exceptions to the duty of confidentiality in] the public interest may demand disclosure of information gained by physicians in their professional capacity. We hold South Carolina shall recognize a cause of action for a physician's breach of a duty of confidentiality.
___________________________ HIPAA Privacy Standards
Other Federal and State Statutory Privacy Provisions (and Exceptions Where Applicable Requiring Disclosure by Law)
Workers Compensation Concerns
Brown v. Bi-Lo, Inc., 354 S.C. 436, 581 S.E.2d 836 (2003)
Employer hired a rehabilitation nurse to contact Employee's treating physicians regarding the nature of her condition and cause of her falls. Employee's attorney wrote a letter to the nurse warning her not to discuss Employee's condition with Employee's treating physicians and threatening legal action if she did not comply. Employee's attorney wrote similar letters to Employee's treating physicians, advising them not to engage in ex partecommunications with Employer or Employer's workers' compensation carrier. Employer complained to the Workers' Compensation Commission (Commission). The Commission ordered Employee's attorney to "cease and desist from obstructing contact, including contact involving ex partecommunications, meetings, correspondence, and/or answering questions in written and oral form, between the treating physician and the defendant's representatives."
The South Carolina Workers' Compensation Act (the Act) requires physicians provide employers and/or their representatives with pertinent information regarding the treatment of a compensation claimant. … [T]he General Assembly's clear intent to require health care providers and facilities to forward existing written records and documents. The statute does not authorize other "ex parte"methods of communication between an insurance carrier, employer, or their representatives and the claimant's health care provider.
Of course, insurance carriers and employers may obtain additional information through approved methods of discovery. See§ 42-3-160 (providing for taking of depositions in workers' compensation actions). Likewise, employer representatives may speak with the claimant's health care provider provided they obtain the claimant's permission.
Therefore, contact involving ex partecommunications, meetings, correspondence, and/or answering questions in written and oral form, between the treating physician and the defendant's representatives is not allowed.
SC Code 40-1-30 (South Carolina Code of Laws (2014 Edition))
Authorization To Practice
It is unlawful for a person to engage in a profession or occupation regulated by a board or commission administered by the Department of Labor, Licensing and Regulation without holding a valid authorization to practice as required by statute or regulation.
The Supreme Court of South Carolina ORDER August 24, 2006
RE: Act No. 385 of 2006 – relating to defining the "practice of medicine.“
… Furthermore, the Act provides significant detail regarding the information that the South Carolina Board of Medical Examiners shall require before issuing a “limited license” to a physician licensed in good standing in another state who has been engaged to testify as an expert medical witness in an administrative or judicial proceeding in South Carolina. Section 40-47-35, Act No. 385, 2006 S.C. Acts __.
… After careful consideration, we believe that while the General Assembly certainly sought, through Act 385, to make needed revisions to the methods South Carolina courts utilize in the area of expert medical testimony, the effect of the revised statutes has the potential to substantially impair the orderly administration of justice.
… Specifically, Act 385 casts serious doubt on a physician’s ability to offer testimony regarding the treatment provided to a witness, party litigant, or criminal defendant if the physician, at the time of trial, resides outside of South Carolina. We believe requiring a treating physician to seek a South Carolina medical license before offering often necessary testimony strains Act 385 far beyond its intended scope.
Guidelines regarding the provision of expert testimony. Sanctions for violations and inappropriate testimony.
SO WHAT MAKES YOU SUCH AN EXPERT
AND WHAT D’YA GOT TO SAY
S.C. Evidence Rule 702 TESTIMONY BY EXPERTS
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
S.C. Evidence Rule 703 BASES OF OPINION TESTIMONY BY EXPERTS
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
S.C. Evidence Rule 704 OPINION ON ULTIMATE ISSUE
Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.
S.C. Evidence Rule 705 DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
S.C. Evidence Rule 803 HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (4) Statements for Purposes of Medical Diagnosis or Treatment.
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment; provided, however, that the admissibility of statements made after commencement of the litigation is left to the court's discretion.
(6) Records of Regularly Conducted Activity.
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness; provided, however, that subjective opinions and judgments found in business records are not admissible. The term "business" as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
(18) Learned Treatises.
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. This rule is in addition to any
WHY YOU MIGHT NOT BE THE EXPERT YOU THINK YOU ARE
S.C. Evidence Rule 701: OPINION TESTIMONY BY LAY WITNESSES
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which (a) are rationally based on the perception of the witness, (b) are helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) do not require special knowledge, skill, experience or training.
____________________________ State v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999)
In 1993, the United States Supreme Court found the Frye test had been superseded by the FRE and adopted new parameters for admissibility under Rules 702 and 703. Daubert v. Merrell Dow Pharmaceuticals, Inc., supra. Before scientific evidence is admitted, the trial judge must determine the evidence is relevant, reliable and helpful to the jury. The Court suggested four factors to consider in deciding reliability in scientific evidence cases: (1) scientific methodology; (2) peer review; (3) consideration of general acceptance; and (4) the rate of error of a particular technique.
The Court stated if the evidence is reliable and relevant, the judge should determine if the probative value of the evidence is outweighed by its prejudicial effect.
While this Court does not adopt Daubert,we find the proper analysis for determining admissibility of scientific evidence is now under the SCRE. When admitting scientific evidence under Rule 702, SCRE, the trial judge must find the evidence will assist the trier of fact, the expert witness is qualified, and the underlying science is reliable. The trial judge should apply the Jonesfactors to determine reliability. See, State v. Jones, 273 S.C. 723, 259 S.E.2d 120 (1979). Further, if the evidence is admissible under Rule 702, SCRE, the trial judge should determine if its probative value is outweighed by its prejudicial effect. Rule 403, SCRE. Once the evidence is admitted under these standards, the jury may give it such weight as it deems appropriate.
In considering the admissibility of scientific evidence under the Jonesstandard, the Court looks at several factors, including: (1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures. This type of evidence is also subject to attack for relevancy and prejudice.
Graves v. CAS Medical Systems, Inc., 401 S.C. 63, 735 S.E.2d 650 (2012) In determining whether to admit expert testimony, the court must make three inquiries. First, the court must determine whether “the subject matter is beyond the ordinary knowledge of the jury, thus requiring an expert to explain the matter to the jury.” Second, the expert must have “acquired the requisite knowledge and skill to qualify as an expert in the particular subject matter,” although he “need not be a specialist in the particular branch of the field.” Finally, the substance of the testimony must be reliable.It is this final requirement of reliability which is the central feature of the inquiry.
If the proffered testimony is scientific in nature, then the circuit court must determine its reliability per the factors set forth in Council. Under Council,the court must consider the following: “(1) the publications and peer review of the technique; (2) prior application of the method to the type of evidence involved in the case; (3) the quality control procedures used to ensure reliability; and (4) the consistency of the method with recognized scientific laws and procedures.”
[T]he court must still exercise its role as gatekeeper and determine whether the proffered evidence is reliable. Thus, while a challenge to an opinion's reliability generally goes to weight and not admissibility, this “familiar evidentiary mantra” may not be invoked until the circuit court has vetted its reliability in the first instance and deemed the testimony admissible.
Graves v. CAS Medical Systems, Inc., 401 S.C. 63, 735 S.E.2d 650 (2012) (cont’d)
[Additionally], an “expert need not be a specialist in the particular branch of the field.” Watson v. Ford Motor Co., 389 S.C. 434, 446, 699 S.E.2d 169, 175 (2010). The record before us reveals a doctor with over thirty years' experience as a neonatologist who stays current on SIDS literature. It is also clear from her testimony that she routinely encounters SIDS in her practice. We therefore find the circuit court abused its discretion in finding Dr. Wilkins was not qualified to render an opinion in this case.
We recognize[e] though, that most doctors do not give scientific testimony. Thus, a doctor who merely applies his knowledge to every day experiences does not need to satisfy the additional foundation required by Council. [What Dr.] Wilkins did was apply the knowledge she has gained from her training and experience as a neonatologist to determine whether India would have survived had her parents been alerted to her condition. Accordingly, the circuit court committed an error of law in holding Dr. Wilkins to the Council standard for reliability.
Watson v. Ford Motor Co., 389 S.C. 434, 447, 699 S.E.2d 169, 176 (2010) Expert testimony differs from lay testimony in that an expert witness is permitted to state an opinion based on facts not within his firsthand knowledge or may base his opinion on information made available before the hearing so long as it is the type of information that is reasonably relied upon in the field to make opinions. See Rule 703, SCRE. On the other hand, a lay witness may only testify as to matters within his personal knowledge and may not offer opinion testimony which requires special knowledge, skill, experience, or training. See Rules 602 and 701, SCRE.
First, the trial court must find that the subject matter is beyond the ordinary knowledge of the jury, thus requiring an expert to explain the matter to the jury. Next, while the expert need not be a specialist in the particular branch of the field, the trial court must find that the proffered expert has indeed acquired the requisite knowledge and skill to qualify as an expert in the particular subject matter. Finally, the trial court must evaluate the substance of the testimony and determine whether it is reliable.
In determining a witness's qualifications as an expert, the trial court should not have a solitary focus, but rather, should make an inquiry broad in scope. The test for qualification of an expert is a relative one that is dependent on the particular witness's reference to the subject. The qualification of a witness as an expert is within the trial court's discretion, and [an appellate] Court will not reverse that decision absent an abuse of discretion.
Watson v. Ford Motor Co., 389 S.C. 434, 447, 699 S.E.2d 169, 176 (2010) (cont’d)
Trial courts should be cautious in conferring an expert label upon a witness because juries may accord excessive or undue weight to “expert” testimony.
[W]e reject [the] argument that because [an expert] presented technical evidence [only], as opposed to scientific evidence, his testimony did not have to meet the reliability requirements. The trial court must examine the substance of the testimony to determine if it is reliable, regardless of whether the expert evidence is scientific, technical, or other specialized knowledge.
[A]ll expert evidence must satisfy Rule 702, both in terms of expert qualifications and reliability of the subject matter. See also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (holding that in determining the admissibility of evidence pursuant to Rule 702, FRE, the same reliability requirements apply to all types of expert evidence).
___________________________ Federal courts apply the Daubert criteria.
How To Be A Statutorily Correct Medical Negligence Expert
S.C. Code Section 15-79-125 Notice of Intent to File Suit
(A) Prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice, the plaintiff shall contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness, subject to the affidavit requirements established in Section 15-36-100, in a county in which venue would be proper for filing or initiating the civil action.
(D) The circuit court has jurisdiction to enforce the provisions of this section.
S.C. Code Section 15-36-100 Complaint in actions for damages alleging professional
negligence; contemporaneous affidavit of expert specifying negligent act or omission
(A) As used in this section, "expert witness" means an expert who is qualified as to the acceptable conduct of the professional whose conduct is at issue and who:
(1) is licensed by an appropriate regulatory agency to practice his or her profession in the location in which the expert practices or teaches; and
(2)(a) is board certified by a national or international association or academy which administers written and oral examinations for certification in the area of practice or specialty about which the opinion on the standard of care is offered; or
(b) has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(i) the active practice of the area of specialty of his or her profession for at least three of the last five years immediately preceding the opinion;
15-36-100(A)(2)(b)(ii) the teaching of the area of practice or specialty of his or her profession for at least half of his or her professional time as an employed member of the faculty of an educational institution which is accredited in the teaching of his or her profession for at least three of the last five years immediately preceding the opinion; or
(iii) any combination of the active practice or the teaching of his or her profession in a manner which meets the requirements of subitems (i) and (ii) for at least three of the last five years immediately preceding the opinion;
(3) is an individual not covered by subsections (A)(1) or (2), that has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case, by reason of the individual's study, experience, or both. However, an affidavit filed pursuant to subsection (B) by an expert qualified under this subsection must contain an explanation of the expert's credentials and why the expert is qualified to conduct the review required by subsection (B). The defendant is entitled to challenge the sufficiency of the expert's credentials pursuant to subsection (E).
15-36-100(B) Except as provided in Section 15-79-125, in an action for damages alleging professional negligence against a professional licensed by or registered with the State of South Carolina and listed in subsection (G) or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of South Carolina and listed in subsection (G), the plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the filing of the affidavit.
(C) (2) The contemporaneous filing requirement of subsection (B) is not required to support a pleaded specification of negligence involving subject matter that lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant. (E) If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed contemporaneously with its initial responsive pleading, that the affidavit is defective, the plaintiff's complaint is subject to dismissal for failure to state a claim, except that the plaintiff may cure the alleged defect by amendment within thirty days of service of the motion alleging that the affidavit is defective. The trial court may, in the exercise of its discretion, extend the time for filing an amendment or response to the motion, or both, as the trial court determines justice requires. The filing of a motion to dismiss pursuant to this section shall alter the period for filing an answer to the complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.
15-36-100(F) If a plaintiff fails to file an affidavit as required by this section, and the defendant raises the failure to file an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, the complaint is not subject to renewal after the expiration of the applicable period of limitation unless a court determines that the plaintiff had the requisite affidavit within the time required pursuant to this section and the failure to file the affidavit is the result of a mistake. The filing of a motion to dismiss pursuant to this section shall alter the period for filing an answer to the complaint in accordance with Rule 12(a), South Carolina Rules of Civil Procedure.
(G) This section applies to the following professions: (7) medical doctors; (9) nurses; (12) osteopathic physicians; (13) pharmacists; (14) physical therapists; (15) physicians' assistants; (among others)
Expert Testimony in a Civil Case S.C. Civ. P. Rule 45 Subpoena 45(b) Service.
(1) A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made in the same manner prescribed for service of a summons and complaint in Rule 4(d) or (j), and, if the person’s attendance is commanded, by tendering to that person the fees for one day's attendance of $25.00 and the mileage allowed by law for official travel of State officers and employees.
S.C. Civ. P. Rule 26 General Provisions Governing Discovery
26(b)(4)(A) Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained by any discovery method subject to subdivisions (b)(4)(B) and (C) of this rule, concerning fees and expenses.
(B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 35(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions
26(b)(4)(C) Upon the request of the party seeking discovery, unless the court determines otherwise for good cause shown, or the parties agree otherwise, a party retaining an expert who is subject to deposition shall produce such expert in this state for the purpose of taking his deposition, and the party seeking discovery shall pay the expert a reasonable fee for time and expenses spent in travel and in responding to discovery and upon motion the court may require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
S.C. Civ. P. Rule 26(b) Scope of Discovery. Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows:
(1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.
S.C. Civ. P. Rule 30 Depositions Upon Oral Examination
30(i) Use of Depositions of Treating Physicians and Other Specified Treating Health Care Providers. The deposition of any licensed physician, … who provided actual medical treatment to a party may be taken by any party to an action in which the physician … may be called as a witness, on notice to each party or attorney as provided in the rules. Notwithstanding the provisions of Rule 32(a)(3) regarding the location of a witness, an evidence deposition, otherwise admissible, may be received in evidence at a trial or hearing. The deposition may be taken by stenographic means, or videotape as provided in these rules or in such other manner as may be provided by these rules. The notice shall specify that the purpose of the deposition is for evidence at a trial or hearing pursuant to this rule, and shall further specify the manner in which the deposition is to be taken.
The cost of the deposition, including materials and fees, shall be borne by the party noticing the deposition. Before the evidence deposition, any party may obtain discovery from the witness as permitted by Rule 26. This rule shall not be the exclusive method of obtaining the testimony of the specified health care providers, nor shall the existence of an evidence deposition prevent any party from using any deposition otherwise admissible under Rule 32, or subpoenaing the deposed witness to testify at the trial or hearing. Provided, however, a party who noticed the evidence deposition must provide 2 days notice of the intent to call the treating health care provider as a witness and once that notice is given, must call that witness unless leave of court is granted.