Shouldn't you be getting paid?

September 21, 2007

Malpractice Consult

Key Points

One occupational hazard associated with being a physician is the occasional need to testify in lawsuits that have been filed against other doctors. That means being called upon as an expert witness or a "fact witness."

In a medical malpractice lawsuit, attorneys for both sides want to obtain as much information as possible about the patient's medical condition. If you saw a patient before or after an event that gave rise to the lawsuit, or have knowledge of some aspect of the patient's condition and complaints, you might be required to testify (or appear for a deposition) as a fact witness regarding the treatments you observed or provided. Indeed, even if your involvement was peripheral-you interpreted a stress test, for instance-you might be subpoenaed to testify as a fact witness.

On the other hand, expert testimony involves not only addressing the facts of the case, but also providing opinions about the plaintiff's care-either in support of the doctor being sued or to back up the patient's claim. That is, expert witnesses typically give "standard of care," "causation," or "damages" testimony. These focus on, respectively, whether the defendant's actions were appropriate under the circumstances, whether those actions resulted in or contributed to the plaintiff's injuries, and problems or expenses the patient has had or is likely to have as a result of those injuries. Expert testimony-which is usually voluntary-is meant to help juries distinguish genuine malpractice from an unfortunate medical event that isn't attributable to bad care.

Most jurisdictions have rules or informal procedures indicating that physicians who provide both fact- and expert-witness testimony must be paid a reasonable amount for their time. If you can't get the attorney who wants your testimony to indicate, in writing, what you'll be paid, consult your own attorney, or ask your local or state medical association what you're entitled to under state law or local practices. In the case of fact-witness testimony, often the court will order that you be paid. Fact witnesses can expect to earn from $250 to $350 per hour, whereas expert witnesses can command significantly more (the amount varies according to specialty and region).

As a practical matter, plaintiffs' attorneys won't take your deposition or call you to testify at trial, even as a fact witness, unless they know what you're going to say. Of course, that can be learned only by interviewing you before the testimony takes place. You're not required to speak privately with the plaintiff's attorney, but if you choose to do so you can insist-as a condition of having a conversation with him-that he agree to pay you for your out-of-pocket expenses (such as travel) and your time. The latter involves payment not only for time spent testifying, but for time spent reviewing records, meeting with the attorney, preparing reports, and otherwise getting ready to testify. In addition, it's now common for physicians to be paid in advance for the time they're expected to spend providing expert testimony.

In short, don't hesitate to question attorneys about what kind of testimony, fact or expert, they want from you, and be sure to get the payment terms in writing before proceeding.

The author is a health law attorney with Adelman, Sheff & Smith in Annapolis, MD, and Washington, DC. He can be reached by e-mail at aadelman@hospitallaw.com
. This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please e-mail it to memalp@advanstar.com. You may also fax your question to us at 201-690-5420, or send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Woodcliff Lake, NJ 07677-7664.