You’re a clinician. You had a patient die under your care, and now your hospital is being sued. You are not named in the lawsuit, but you are being asked to give a deposition. How much of your time is this going to take? If some lawyer sends you thousands of pages to review before scheduling multiple phone calls and prep sessions and, finally, a deposition under oath … what do you say? What is your obligation to testify in court as a scientific expert?
I’m a forensic pathologist, so it’s a regular part of my job to review cases as an expert and testify in court. Let me note at the start, however, that I am not a lawyer and am not offering legal advice.
If you get served, take a deep breath. It’s crucial to remember that, unless your name appears anywhere after the letter “v” on that subpoena, you are not on trial. Criminal cases will start with “People v.,” “State v.,” or “United States v.” In a criminal case, the person who is calling you to testify might represent the government (a district attorney or attorney general), or the defense (a public defender or private defense attorney). If you are personally named as a defendant on the subpoena, then pick up your phone and dial a criminal defense attorney; otherwise, phone the attorney who has issued it, and ask why you are being called. Don’t stress out if you have a conflict with the subpoena date: The attorney will work with you to schedule your appearance. Ask the attorney to get approval in advance for funds to compensate you for your time reviewing materials, meetings, travel, wait time, and testimony time.
If you see a bunch of names but no government entities on the “v” line of the subpoena, then it is a civil case. Call your hospital’s risk management department and your malpractice insurance company to tell them about it. If you are (or might become) a named party in a lawsuit, then your insurance company will provide you with legal representation. Their attorneys will get you the materials you need, and will help you prepare for the deposition.
If you are being served because you took care of a patient, then the attorney might say they want to call you as a “fact witness.” Physicians cannot be “fact witnesses” if their testimony relies on hearsay — like lab reports and records generated by others — or if they rely on their experience and training to give a medical opinion. Fact witnesses can only testify to what they saw or heard. They are barred from using hearsay, and they can’t give opinions. Calling a treating physician as a “fact witness” may be an attempt to avoid compensating you for your time. It will help to have copies of the Federal Rules of Evidence (Rule 703) and the American Medical Association and American Bar Association agreement governing the interprofessional relations of physicians and attorneys on hand, in order to educate the attorney on the difference between a fact and expert witness.
I once had an attorney call me to a deposition and insist that, as the autopsy pathologist, I was a “fact witness.” I warned him in advance that all I could do as a fact witness was to confirm my name on the record and say whether or not I wrote the autopsy report. I could not interpret what it meant. Every time he asked me a question requiring my scientific opinion, I responded, “To answer that question I would have to be declared an expert and compensated.” After the twentieth time, he relented, declared me an expert witness, and agreed to pay my professional fees. The deposition went a lot more smoothly after that.
Demand that the attorney provide you, prior to the deposition, any notes and records (like lab reports and radiology reports) that you relied upon in making your diagnoses. Draw up a contract and send a signed W9, along with a letter that summarizes what records you will require. A well-written contract covers your fee and payment schedule, includes late payment fees, and specifies that scheduling must accommodate your regular job. If your expertise is challenged in a Daubert hearing, your contract should state that you must be notified, in order to allow you an opportunity to respond on the record to such a challenge.
Be aware that some government jobs may have set rates for expert witness compensation. Your hospital or practice group contract may require that the money you earn be paid to your employer rather than to you. It’s always a good idea to inquire about policies that pertain to outside expert witness work before taking a new job.
Set your fee based on how much you make per hour doing your regular job, and adjust up based on the going rate of other experts in your field. Fee structures that depend on the outcome of a legal case are unethical because they create an incentive to provide testimony in support of a specific side. Your opinion needs to be based on sound science, not the needs of the attorney or your empathy for the plaintiff or the defendant.
If you find yourself forced by subpoena to work with an attorney who refuses to pay you for your time, you can write to the judge. If the attorney tries to influence you in other ways, take notes and report their unethical behavior to the state bar association. They take their attorneys’ relationships with medical professionals seriously. I have rarely had to use these methods — but when I have, I have prevailed every time.
Finally, believe in yourself. You’re the expert. You can rely on your training and experience to speak with authority under oath. You might even find you like it!
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