Should You Offer Your Services as a Paid Medical or Dental Expert?

Richard Cahill, JD, Vice President and Associate General Counsel, The Doctors Company

You may be contacted by a defense or plaintiff malpractice attorney asking you to review a case and render an expert opinion about the care that others provided to a patient 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. Ascertaining how the attorney came to approach you may help inform your decision. Whatever the source initiating the contact—and despite the flattery of having your opinion solicited and the lure of an additional source of income—do not enter lightly into a decision to function as a paid expert witness. 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, often with little advance notice? Will you need to take hours out of your day to review patient records, meet with counsel, take frequent telephone calls, and appear in person for depositions and courtroom testimony?

If you cannot spare the time and do not have the practice coverage to ensure follow-through for your own patients, avoid offering expert opinions beyond those that you are required to give. Once you make a commitment to be the clinical expert on a case, you will need to 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 the leadership and persuasive communication skills you use in your clinical life will translate well to the courtroom. Some expert witnesses 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 or dental expert and your testimony in a given case are readily retrievable by current databases. If any patient ever sues you for malpractice, your expert testimony 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’s only goal is to present the best face possible to win the case. The attorney is not focused on the long-range repercussions to you professionally if you stretch your opinion beyond current and authoritative clinical evidence or practice to accommodate the needs of the case. Maintaining appropriate professional boundaries will require your ongoing vigilance as an expert witness.

Are you prepared to defend your fee schedule or to defer or forego payment for your services?

If you make the decision to be available as a paid expert, 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 (some experts charge a higher fee for live courtroom testimony than for patient record review). Because a judge may ask for justification of your fees, be prepared to defend the numbers.

Plaintiff’s counsel may ask you to defer being paid until after the case is resolved—which could delay payment for months or even years after you have provided your services. An additional risk may be that you will not be paid if the patient receives nothing in settlement or as a result of a plaintiff’s verdict following a trial or arbitration.

Outline and agree to all payment terms and conditions prior to taking on the role of expert witness.

Does your knowledge of the specialty include past and present standards of care?

Before taking on the role of paid expert, ensure familiarity with the specialty’s standards of care regarding the particular issues of the case. In some instances, an expert witness has given testimony that proved inconsistent with the applicable standard of care in effect on the date at issue and, as a result, has been reprimanded—or even sanctioned—by the specialty’s professional society.

Do you have insurance coverage for the role of paid expert?

Medical and dental malpractice insurance policies typically do not cover functioning in the role of paid expert. Contact your insurance agent to determine if you already have coverage under another policy (such as an errors and omissions policy) or if coverage is available.

For further questions or assistance, please contact The Doctors Company Patient Safety and Risk Management Department at (800) 421-2368 or by email.

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.

J12920 06/21

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