Editor’s note: First in a two-part series on hospitalists as expert witnesses.
Recently, you have found yourself pondering whether you want to be an expert witness for the prosecution on behalf of one of your patients or for the defense on behalf of one of your fellow colleagues. You enjoy tackling confrontational questions head on, are intellectually curious, and are articulate both orally and in writing. You like to look at complex fact patterns and simplify them, and “Law and Order” is your favorite television show. But, seriously, are you ready to be an expert witness?
The expert witness plays an essential role in determining medical negligence under the United States system of jurisprudence. Generally, expert witnesses are asked to testify regarding the standards of care relevant to the given case, identify any deviations from those standards, and render an opinion as to whether those breaches are the most likely cause of the injury. Without the expert’s explanation of the range of acceptable treatments within the standard of care and interpretation of medical facts, juries would not have the technical expertise needed to determine whether or not malpractice occurred.
This article, the first in a two-part series on hospitalists as expert witnesses, addresses the nuts and bolts of serving as an expert witness, including the role of the expert witness, time commitments, compensation, privacy or lack thereof, and the ever-present internal struggle about whether or not to choose to participate actively in our legal system.
The Role of the Expert Witness
First, let’s take a small step back, as the hospitalist’s role as an expert witness is largely dependent on how the expert witness is going to be used by the attorney. An expert witness is someone who has been qualified as an authority to assist others—namely, the attorneys, judge, and jury—in understanding complicated technical subjects that are beyond the understanding of the average lay person.
Thus, attorneys retain expert witnesses for a whole host of reasons, including:
- Evaluating their client’s claim initially to determine if the patient has a valid claim;
- Writing an expert report to be used for settlement, mediation, arbitration, or as an exhibit to a motion for summary judgment;
- Consulting with the attorney in order to form an opinion in the case, which will be used to shape the prosecution or defense, including in a response to the complaint, in discovery, or at trial (“Confidential, Non-testifying Consultant Only Expert”); or
- Testifying at a deposition and/or in court at trial (“Disclosed, Nothing the Expert Touches is Confidential, Testifying Expert”).
The first thing you need to do, therefore, is make sure your role and the scope of your area of expertise are clearly defined and that you are comfortable performing the tasks that are described in more detail below in a timely manner. As you will soon learn, testifying under oath can be a grueling experience.
Is it worth the time commitment? Here, again, a lot depends on not only the expert witness’s role but also where in the course of the litigation the expert is brought on board the trial team. Is it ninety days before trial, before the lawsuit has even been filed, or somewhere in between? Have court deadlines already been issued that require the rescheduling of patient obligations?
Assuming you have been brought onboard as an expert before the complaint has been filed, you should expect to encounter the following noninclusive time constraints:
- Preparing litigation budgets and bills;
- Preparing a current curriculum vitae;
- Reviewing the entire file of paper;
- Assisting in drafting or responding to the complaint;
- Assisting in drafting and/or responding to discovery;
- Preparing an expert report;
- Preparing a rebuttal expert report;
- Preparing for your deposition;
- Attending your deposition;
- Assisting in the deposition of the other side’s expert witness;
- Assisting in preparing for trial;
- Preparing to take the stand at trial;
- Attending trial; and/or
- Assisting in identifying or responding to any post-trial appealable issues.
Although you should be compensated for each of these tasks, these tasks take away time you could be engaging in patient care.
It should be a no brainer, but make sure you get paid. The expert witness business is built upon reputation, integrity, credibility, and expertise. Consequently, hospitalists who have developed a niche in a small area of expertise in which they can dominate a certain market, or those who have developed a national reputation, can charge a significant amount of money depending on their area of expertise. In the absence of substantial experience, expert witness rates are dependent on the location of the case, the dollar amount at stake, and the novelty of the legal disputes at issue.
You should immediately request a written agreement that states exactly who is responsible for paying your bills, when those bills will be paid, and, in addition to your hourly rate and what services that rate covers, the specific out-of-pocket expenses that will be paid, including those that are needed to cover postage, copies, travel, lodging, and any other incidentals.
Privacy, or Lack Thereof
Thanks to the Internet, unless a protective order is in place, and even that is likely to be narrowly tailored, opposing counsels can easily pull copies of all of your past deposition and trial transcripts, divorce records, past curriculum vitae, and articles you may have written in medical school or in practice. They can also use the Internet to identify who you usually testify for, whether your testimony has ever been refused by the judge, where you live, and even whether you own any property.
In essence, any and all public dirt on your private life can be extracted and used as fodder at the next trial. Are you prepared to become an overnight public figure?
The Internal Struggle
Finally, there is no question that the decision of whether to serve as an expert witness in a malpractice case is one of the most difficult, yet most important, nonpatient care decisions a physician can make. Expert testimony is essential to medical malpractice litigation, however. Many hospitalists may find themselves balancing their duty to patients who should have access to the courts and fair compensation from injuries caused by physicians who are impaired or who deviated from the standard of care against the professional and social pressure not to testify against colleagues and not to participate in a legal system that many hospitalists feel victimizes members of their profession.
The legal system, nonetheless, relies on competent medical expertise that is just and fair and relies on medical professionals to provide that expertise. Are you ready for the challenge? If you are, the second article in this two-part series will serve as a primer for your expert report, deposition, and testimony at trial.
Steven Harris is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC in Chicago. Write to him at firstname.lastname@example.org.