Should You Offer Your Services as a Paid Medical Expert?
You may be contacted by a defense or plaintiff medical malpractice attorney asking you to review a case and render an expert opinion about the care others provided to a patient whom you have not treated.
The attorney may have obtained your name from another attorney familiar with your professional reputation or your unflappability on the witness stand in an unrelated case, from literature searches establishing your expertise in a particular area, or from unknown references. You should ask the attorney how he or she came to approach you. Whatever the source initiating the contact, and despite the flattery of having your opinion solicited and the lure of an additional source of income, your decision to function as a paid medical expert should not be entered into lightly. You should consider the following questions:
- Do you have sufficient flexibility in your schedule and patient coverage support to be able to appear in court when required? Is the case simple, or will you need to review voluminous medical records, meet with the attorney repeatedly, give a lengthy deposition, and spend hours in court?
- If you cannot spare the time and do not have the practice coverage to ensure follow-through on your own patients, avoid offering expert opinions beyond those that you are required to give. Once you make the commitment to be the case medical expert, you should see it through regardless of the amount of time, inconvenience, or disruption to patient care that may result.
- How well do you verbally spar without a script, and how do you handle the stress of being challenged in front of a room of spectators?
- Carefully consider whether your leadership and persuasive communication skills in your clinical life will translate well to the courtroom. Some physicians bristle under the aggressive and persistent grilling of adversarial attorneys. You may want to observe some expert testimony and imagine how well you might tolerate a similar experience.
- Could your testimony be used against you at a later time?
- Your status as a medical expert and your testimony in a given case are readily retrievable by current databases. If any patient ever sues you for malpractice, the testimony you give in this case might be misconstrued, taken out of context, or otherwise used against you. This possibility dictates caution whenever you are asked to testify.
- How well will you deal with pressure to enhance your opinion, to be more critical or supportive of other providers’ care, or to venture outside your area of expertise in order to help the defendant’s or plaintiff’s case?
- Maintaining professional boundaries when providing expert testimony can be surprisingly challenging once you are caught up in the dynamics of a malpractice lawsuit. Keep in mind that the attorney you are working with has one goal: to present the best face possible on his or her case. The attorney is not focused on the long-range repercussions to you professionally if you stretch your opinion beyond current and authoritative medical evidence/practice to accommodate the needs of the case. Maintaining appropriate professional boundaries will require your ongoing vigilance as an expert witness.
Check Your Coverage
Your professional liability policy will not cover you for functioning in the role of a paid medical expert.
Consider contacting your insurance agent to determine if you have coverage under another policy or if coverage is available that would include performing in the role of a paid medical expert.
Be Sure You Are an Expert
Before taking on the role of paid medical expert, be sure you are familiar with your specialty and any existing standards of care regarding the particular issues of the case at hand. It is not unheard of for a physician to provide expert testimony that is not consistent with the applicable standard of care in effect on the date of the event at issue and, as a result, to be chastised by the pertinent professional society for this failure. Don’t let this happen to you. (It is worth noting, however, that if you are investigated or reviewed by your professional society, your MediGuard® coverage would apply.)
Prepare a Fee Schedule
If you make the decision to be available as a paid medical expert, we encourage you to prepare a fee schedule that includes your hourly rate, half-day rate, and full-day rate, as well as whether these rates apply for actual courtroom testimony, as some experts charge a higher fee for live courtroom testimony than for medical record review. A judge may ask for justification of your fees, so be prepared to defend the numbers.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.