NEW YORK - EXPERT WITNESS (Physician as)

January 1, 2008

New York state laws and regulations that affect your medical practice

1. Are there any prohibitions regarding the fees physicians may charge for their services as expert witnesses?

New York has not promulgated rules regarding the fees physicians may charge for their services as expert witnesses. However, case law suggests that an expert should charge a fee for expert testimony which should "be reasonable and not immoderate and would reflect, among other things, the experience, skill and standing of the [expert], the contribution the expert will make in reaching a] right result, and the time [expected to be] expended [by the expert]."

(Marine Midland Trust Co. of N. Y.,13 A.D.2d 118, 127 (1st Dept, 1961), aff'd 213 N.Y.S.2d 689)

The contingency of an expert's fee upon the outcome of the litigation raises an issue of the expert's credibility and not the expert's competency to testify. Such contingency should be disclosed to opposing counsel, the court and the jury.

An expert should disclose to the jury at trial that his fees are contingent upon the outcome of the case. The terms of an expert's fee are factors for the jury to consider in evaluating the credibility of the expert's testimony, not factors of the expert's competency to testify.

(Petition of Shore, 93 Misc.2d 933, 936 (Sup Ct, Nassau County, 1978), aff'd, 403 N.Y.S.2d 990.); see also CPLR § 4512

2. What are the qualifications for an expert witness?

New York has not promulgated any specific rules establishing minimum qualifications for an expert witness. "Whether, in any case a witness is qualified to speak as an expert is a fact to be determined by the court upon the trial preliminary to his testifying . . ."

(Masocco v Schaaf, 234 A.D. 181, 183 (3rd Dept, 1931)

In order for a physician to qualify as an expert witness in an action to recover damages for medical malpractice, the proponent of the expert must elicit testimony from the expert establishing "his qualifications as a medical expert and his familiarity with the standards of care applicable . . ."

It is sufficient that the expert establishes his or her qualifications as a medical expert; it is not necessary for the expert to be a specialist. The extent of the expert's expertise goes to the weight and not the admissibility of the expert's testimony.

(Texter v Middletown Dialysis Center, Inc., 22 A.D.3d 831, 831 (2nd Dept, 2005)

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.