Preparing to be Deposed Part II

When physicians receive a request for their deposition as an expert to be taken, the most frequent question they have is “Can I charge for my time and, if so, how much?” Unfortunately, the best answer that I can provide to both questions is “it depends.”

It depends on many factors including your role in the case — meaning are you a treating provider or a retained expert? It also depends upon your jurisdiction and if there is any case law on the subject of payment of physicians who are being deposed.

All parties to a case expect to pay an hourly rate to depose a retained expert. Be sure to establish your rates up front and obtain an agreement from the attorney who is retaining you that you will be paid your agreed upon rate regardless of whom is ultimately responsible for paying for your time for your deposition. Your agreement should also clearly establish if you require payment for a minimum number of hours for your deposition, if you require advance payment, and if you have any cancellation fees. The more clearly you can lay out any and all terms of your retention in advance the better.

Receiving payment for your time becomes a little more complicated if you are a treating health care provider. Some major automobile insurance companies have been asking their local counsel to take the position that treating physicians are not entitled to be paid for their time spent being deposed, as it is part of their role as a treating physician. However, in most jurisdictions the courts have established that even treating physicians are entitled to receive reasonable compensation for their time since being deposed will require that they take time away from their practice.

What is “reasonable compensation” varies from specialty to specialty, court to court and, even, case to case. I would recommend consulting with your attorney to determine an appropriate hourly rate for your particular specialty so that you do not underbid or overbid regarding your hourly rate.

If you do not have an attorney and do not intend to retain an attorney you may consider what you charge for your time if you are retained as an expert and if you have not been retained and never established rates you could consult with a colleague and inquire of his/her rate.

We will conclude our series next month and discuss specific tips to help prepare you to give testimony.

Mandi J. Karvis is a medical malpractice defense lawyer with Phoenix-based Sanders & Parks, P.C. She represents physicians, chiropractors, nurses and other individual health care providers, as well as hospitals, nursing homes and other types of care facilities. She also represents health care providers before their respective licensing boards.