What's a fact witness?

June 16, 2006

A fact witnes testifies to the treatment he provided; he's not an expert witness.

Q. I've been called to testify as a treating physician or "fact witness" at a deposition in a malpractice case brought by one of my patients. I'm not sure what this involves or how to prepare for it. Also, what should I charge?

To prepare, you should review your records carefully, and limit your testimony to what you found on your exam and the opinions you formed at the time you treated the patient. Sometimes, though, you'll be asked hypothetical questions like, "Doctor, if you had known the patient was suffering from the condition later diagnosed, would you have conducted a different exam or prescribed antibiotics?" In most cases, the proper answer to such questions is, "I'm not an expert on that condition, and without access to all the records in the case, I'm not comfortable speculating." That will usually end that line of questioning.

If the patient is claiming damages for lost wages or disability, you may be asked to give an opinion on the alleged deficits he has claimed, and whether they are consistent with or caused by the injury. In that situation, your opinion is very important. If your exam led you to suspect that the patient is a malingerer, or is exaggerating the effect of his injury, by all means, say so. That can limit the potential damages and even cause the plaintiff to settle.

If you're concerned about giving opinions that cast doubt on the patient's claim, don't be. The physician-patient relationship doesn't prevent you from testifying truthfully about the extent or effect of the patient's injury. And don't be reluctant to get involved in a malpractice case when you're not a defendant. Your honest opinion as a treating physician can be very helpful to the defendant doctor.

Should you charge for your participation in the deposition? Of course. Since you're taking time away from your practice to give a professional opinion, you have a perfect right to be compensated fairly for your time. It's not unreasonable to charge $250 to $350 per hour for the time you spend reviewing the records and testifying. After all, the attorneys and their experts are being compensated, and so should you. Besides, if the attorney knows up front about your fee, he'll be less likely to waste your time at the deposition.

The author is a malpractice defense attorney with LeClair Ryan in Richmond, VA. He can be reached by e-mail at jfitzpatrick@leclairryan.com
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This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com