12/04/2023
Should You Offer Your Services as a Paid Clinical Expert?
Provided by OSMA's exclusively endorsed partner for medical liability insurance, The Doctors Company, Part of TDC Group
Richard Cahill, JD, Vice President and Associate General Counsel
Healthcare practitioners frequently serve as independent experts in professional liability claims. You may be contacted by an attorney who asks you to review a case and render an opinion involving patient care provided by other medical, dental, or advanced practice clinicians. Counsel may also ask you to conduct a physical examination of a client injured in a personal injury matter—such as an automobile collision, industrial work accident, or products liability lawsuit.
Counsel may have obtained your name from another lawyer who is personally familiar with your professional reputation, your unflappability on the witness stand in an unrelated case, or from literature searches establishing your expertise in a particular area. Ascertaining how the attorney came to approach you at the outset of the engagement may help inform your decision about whether you should agree to participate. Whatever the source initiating the contact, consider the following points before deciding to act as an expert witness:
Do you have sufficient flexibility in your schedule and patient coverage support to be able to appear in court or arbitration 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 reasonably spare the time and do not have the practice coverage to ensure adequate follow-through for your own patients and other professional commitments, avoid offering expert opinions beyond those that you are required to give pursuant to a subpoena or judicial order. 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?
Lawyers representing an injured client are invariably well prepared, aggressive, and relentless in their questioning. 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 often hostile and persistent grilling of adversarial attorneys. You may want to observe some expert testimony in advance to help you imagine what the experience is like.
Could your testimony be used against you at a later time?
Your status as a clinical expert and your testimony in a given case are readily retrievable by the databases maintained by law firms, professional societies, and trade organizations. If any patient ever sues you for malpractice, your expert testimony might be misconstrued, taken out of context, or otherwise used against you. Depending on the nature and content of the evidence you provide, opposing counsel may use the testimony as the basis for an administrative complaint to your state licensing board or professional society. This possibility dictates caution whenever you are asked to testify.
How well will you deal with pressure to enhance your opinion, provide more critical or supportive statements regarding another practitioner’s care, or venture outside your area of expertise in order to help the defendant’s or plaintiff’s case?
Maintaining professional boundaries and personal integrity when providing expert testimony can be surprisingly challenging once you are embroiled in the dynamics of litigation—when reputations, the plaintiffs’ livelihood, and the defendant’s financial security are at risk. To accommodate the needs of the case, you may feel pressure to stretch your opinion beyond the existing clinical evidence, facts developed during discovery, authoritative resources, or prevailing community standard. The lawyer’s primary goal is to win the case—not to focus on potential repercussions to you professionally. 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, and specify whether these rates apply for actual courtroom testimony. Note that some experts charge a higher fee for deposition or live courtroom testimony than for patient record review or telephone consultations with counsel. If the opposing lawyer objects to your rate and files a motion with the judicial or administrative officer or independent arbitrator, you may need to justify it under oath. These types of pretrial conflicts can be time consuming and inconvenient, and the time expended may not be compensable.
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. Before becoming an expert witness, consider formalizing a written agreement with counsel, signed by both parties, that sets forth all payment terms and conditions.
Does your knowledge of the specialty include past and present standards of care?
Before taking on the role of being a paid expert, ensure familiarity with the specialty’s standards of care regarding the particular issues of the case. In some instances, expert witnesses have given testimony that, under cross-examination, proved inconsistent with the applicable standard of care in effect on the date in question. As a result, the practitioners were reprimanded or sanctioned by their specialty’s professional society.
Do you have insurance coverage for the role of paid expert?
Professional liability insurance policies typically do not cover functioning in the role of a paid expert. Although the risk of personal exposure or liability for serving in that capacity is generally small, it should be considered in the decision-making process. Contact your insurance agent, broker, or underwriter to determine if you already have coverage under another policy (such as an errors and omissions policy) or if coverage is available.
Finally, at the outset of your engagement, it is important to clearly and fully disclose to the counsel retaining you any impediments to your credibility that could adversely affect the client’s claim if they were to be discovered during litigation. These include any negative malpractice judgments, licensing board actions, criminal verdicts, or pending or concluded civil matters.
For further questions or assistance, please contact The Doctors Company Patient Safety and Risk Management Department at (800) 421-2368.
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.
J00629 10/23