Providing sworn testimony, whether at depositions or trial, seems to have become a natural part of today's practice of medicine. In fact, the Current Opinions of The Council on Ethical and Judicial Affairs of the American Medical Association provides that a physician, as both a citizen and a professional, has an ethical obligation to assist in the administration of justice. Unfortunately, judicial demands upon a physician's time are often such that it interferes significantly with his practice. As a result, a question frequently raised is whether the physician has the right to alter the time or location chosen by the attorneys for his testimony. Beyond that, there is also the question of whether he should attempt to control these events. This article is designed to impart some guidance for these questions.

Generally, when a physician's assistance is requested, he will be served with a subpoena. This is regardless of whether he is being called to testify at deposition or trial. However, the rules with regard to the location and timing differ depending on whether it is a deposition or trial. For state court proceedings in Florida, a person may be required to attend an examination by deposition only in the county wherein he resides, is employed or transacts his business in person. (The court may, of course, alter this under certain circumstances.) The fact that the witness lives beyond the state will not generally free him of this obligation. Most states, including Florida, have enacted long-arm statutes which allow subpoenas from other states to be served there. Although the witness cannot generally be compelled to travel to render the testimony, his deposition may be taken in his home state.

Such restrictions for deposition testimony may not seem very consoling to a physician with a busy practice. However, in many instances this does not become a problem as the parties attempt to agree on the taking of testimony at locations and during times that are convenient. In fact, physicians often underestimate their ability to persuade the attorneys to make allowances in this regard. Neither attorney wants to have a hostile witness on his hands. As a result, if the physician makes a point of demonstrating his needs, both sides will generally concede the issue. There are circumstances, however, where this does not occur. When this is the case, the physician still has some ability to control events. If he believes that either the location or the timing of the testimony will cause him undue annoyance, embarrassment, oppression, burden or expense, he may petition the court for an appropriate protective order. If sufficient good cause is shown and undue prejudice will not result to the parties, most courts will designate a time and place that is more convenient. (To avoid expense, it is often possible to have the attorney on whose behalf a witness is appearing file the petition for him.)

If a choice of deposition location is available, there are practical considerations that the physician should take into account. These are primarily dependent upon into which of three categories the physician falls in rendering deposition testimony. If for example, he is testifying as a treating physician, his primary concern should be his own convenience. On the other hand, if he is either a defendant or a hypothetical expert, other considerations should control. The most important of these is whether the effectiveness of his testimony will be blunted as a result of the location.

The least advantageous location for a defendant or expert is his own office. Most physicians believe that they are more comfortable when surrounded with their own trappings. However, depositions taken in a physician's office often work to their disadvantage. In the first place, it gives the opposing counsel an opportunity to scan the types of books and journals maintained in the office. As soon as he returns to his own office, he will procure copies of those items to review for literature that he may be able to use against the physician. In this regard, if the deposition must be taken at his office, the physician should endeavor to ensure that it be done in a rather bland conference room and that the attorneys are ushered into that room immediately upon arrival. They should not be allowed to wander through the office during breaks but, rather, have coffee and other sustenance brought to the conference room.

As with the physician's office, the office of the opposing counsel is also an ill-advised location for a deposition. Remember, he is an expert in these matters and has generally designed his office in such a fashion as to allow him to control events which occur therein.

The best choice for a defendant expert witness deposition is his own attorney's office. This will provide him with a comfortable setting to which he has probably already become accustomed. It also offers the opportunity for preset conferencing which can be utilized during the deposition.

The location of trial testimony, as opposed to deposition testimony, is obviously the court wherein the case is pending.