So, you followed the advice in Part 1 over at the White Coat Investor and you talked to your colleague who does medical expert witness work. You even created a fee-schedule and a CV to send to an attorney’s office after your colleague sent you a potential case. To your surprise, they actually said yes. You request a retainer, and they comply. It all sounds great, but now what? How do you perform medical expert witness work without stepping in it?
Here are five helpful guidelines on how to stay out of trouble during your first medical expert witness case! They surely weren’t told to me by the first attorney I worked with, yet I was expected to know.
1) Do your homework, but only if asked.
When you are given a stack of medical documents to review, you can underline or highlight. However, I would refrain from writing anything down or taking notes unless it is simply a factual timeline of what happened. Otherwise, you may be asked for the notes that you took while reviewing the case.
This also counts anything that you looked up while thinking through the case. “Doctor, are you familiar with the ACEP clinical guidelines on how to handle psychiatric patients?” If you recently reviewed those guidelines to help prepare for your case, that’s fair game. It’s discoverable information, as is any literature review you perform.
The point here is this, make sure you ask the attorney hiring you if they want you to perform a literature review for the case. Also, you should ask if they want you to write a report.
Typically, they will not want you to write anything down at first. They will want you to discuss the case with them on the phone. If after the discussion they feel a full report would be beneficial to them, then they will ask for it. Or they may write up an affidavit with what you talked about in general terms. You’ll need to get it notarized and send it back to them.
Of course, all of this (reviewing the documents, phone calls, getting things notarized) can be billed per your hourly rate according to your fee-schedule.
2) Review every page of what you are given
When you receive a request, you will often be told “Hey Dr. X, we are sending you these 10 files to review, but I think documents 1-3 really get to the salient points of the case.“
Don’t for a second think that you should only review documents 1-3. When you give your opinion or deposition/trial you are responsible for having reviewed everything that was sent to you.
This is good and bad.
The good is that you can bill for every hour that it takes to review every single page of each document that was sent to you. Then, you can open a taxable brokerage account or a solo 401K to find a home for that new money.
The bad part is that you may have to review documentation that is completely frivolous to the case (i.e. secretarial or nursing documents that may not be helpful). Hopefully, they really did send you the salient points. If you think something is missing that you may require, then ask for it.
3) Be ready to answer some tough questions
Do you remember thinking that college, medical school, or residency interviews were tough? Think again. A deposition or a trial can be even harder depending on how you approach it. You need to be ready to answer some tough questions.
How much have you earned during this case? What is the total amount of money you have earned as an expert witness? Can you please share how much you bill per hour for your work? How many cases have you reviewed in the last four years? Have you discussed this case with anyone else? Please, explain why you are an expert in this matter. How many plaintiff cases have you performed? Defendant cases?
And, remember, all of this information is likely going to be shared with a jury who doesn’t earn this kind of money or have your experience.
The point is this. You need to represent yourself and your work in the most confidential and professional manner that you can. It is okay to be paid for this work, but be prepared to answer how much you charge in a deposition or in court.
How do you think the jury will respond if you say that you have a $15,000 retainer?
4) Do not discuss the case with anyone.
This almost goes without saying, but I’ll say it anyway because it is so important. You cannot discuss the details of any case that you review with anyone. Not your partners, not your residents, not your spouse. Unless you really really want them to be subpoenaed. And I am betting that you don’t.
Otherwise, the opposing lawyer may ask if you have discussed the case with anyone. Under oath you must, of course, share this information. If you say that you have, then the court can bring that other person to testify. If they are also an expert on the subject matter they may give a dissenting opinion to yours. You can guess how much value your opinion would be worth at that point.
Also, your friend will likely be angry that they have to miss work because you couldn’t keep your mouth shut. If you must ask someone’s opinion on something, then you must speak in hypothetical situations. “Hey, Jen, do you think it would be reasonable to do X case under MAC sedation instead of securing the airway before this kind of procedure?”
5) You can say “no”
The last point I will end with is that it is okay to say “no”.
You can be working for the plaintiff (the one who created the law suit) or the defendant (the attorney representing the medical provider being sued). When working for a plaintiff trying to bring a case against a doctor who you feel did not provide substandard care, you can say no. “I don’t think the physician failed to meet the standard of care in this case for their training and the situation involved.“
As an aside, this is the question you are trying to answer: “Did the provider involved provide a reasonable standard of care in the particular situation being discussed given the provider’s background, education, and experience?”
Said differently, would someone with the same education and background who practices in the same area think it is reasonable to do what was done?
It goes the same way for attorneys on the defense. Sometimes, we as physicians make mistakes that are substandard in care. If called by a defendant’s attorney to see what you think, it is also okay to tell that lawyer the same thing on the opposite side. “I am sorry, but unless you can tell me ‘this or that’ were done, I cannot say that the standard of care was provided to the patient.“
However, if you say “yes” to a case, be prepared to provide a deposition and go to trial, if it is needed.
In times past, I’ve really enjoyed this side hustle, and would recommend it to anyone interested. As time has worn on, my work on The Physician Philosopher has taken over my free time outside of the hospital.
Expert witness work does require a substantial amount of invested time. I hope that if you venture into this forest, you find this post helpful in preventing you from getting tripped up by the weeds.
For those out there that have done medical expert witness work, is there anything else you would advise for someone just getting started? Are there other pitfalls you have experienced? What questions do you have? Leave a comment below.