[Editor's Note: Today's post was submitted by Emergency Medicine physician, Eric Funk, MD. Dr. Funk blogs at MedMalReviewer.com and runs a subscription email publication called The Expert Witness Newsletter. We have no financial relationship.]
Medical malpractice cases are a source of both fascination and fear among physicians. Rumors fly in the doctor’s lounge about medical errors, massive settlements, and predatory attorneys. When I was late in my residency, I started getting curious about malpractice cases. After searching for months, I realized there were no resources that showed the real-life content from the exhibits used in medical malpractice cases. This realization motivated me to start researching and publishing the full records of malpractice lawsuits, from the actual medical records to the final settlement or verdict.
One of the most interesting parts of medical malpractice lawsuits that I discovered was expert witness opinions. Many states require the plaintiff to submit an expert witness opinion that describes the allegations of negligence along with the initial filing of a lawsuit. These expert witness opinions range from reasonable and thoughtful to egregious and unethical. Here are the top things I’ve learned reading hundreds of expert witness opinions:
4 Things I've Learned Reading Medical Expert Witness Opinions
#1 Work as an Expert Witness is Lucrative
Most expert witnesses do not openly disclose how much they charge. But in a few rare cases, their billing gets included in publicly-available court documents. Most have two different rates, one for reviewing the case and writing an opinion, and one for being deposed or showing up in court. For the initial review and writing (or anything else that can be done at home in your underwear), rates generally are in the $300-500/hour range. However, some subspecialists or physicians with niche expertise can charge over $1000/hour for their work. For depositions or court testimony (often involving traveling, putting on a suit and being grilled by hostile attorneys), most experts charge per day, usually $2000-5000/day.
As an example, here is the compensation rate from the case of a pregnant 37-year-old woman, herself a physician, who developed a septic abortion and died after there were several delays in her care. The images below are screenshots of the actual documents used in the lawsuit. The first expert is an EM doctor with over 30 years of experience.
This initial $7630 charge is just for the initial review and does not include any further fees for his deposition.
The plaintiff also hired an OBGYN physician to give an opinion on the case. After reviewing the case, he identified multiple failures in her care, including a failure to give antibiotics for hours after sepsis was identified.
A third expert was hired by the plaintiff, board-certified in Emergency Medicine and Critical Care. His testimony was an important part of the lawsuit as his expertise covered not only the initial triage and workup of septic patients, but also their care in the ICU.
The lawsuit was settled and did not go to trial. The judge’s final order acknowledging the settlement is shown below.
#2 Consulting Fees Can be Contested in Court
When a law firm contacts a physician to review a case, they agree on a contract to pay the physician for their work. As a rule of thumb, the more subspecialized and niche the physician’s training, the higher the reimbursement. After reviewing the case and writing a report, the physician may be responsible for attending depositions and trial.
The opposing attorney has the opportunity to depose the expert witness before the trial. The purpose of this is to allow the attorneys to understand what the expert is going to say in front of the jury. They may also be looking for an avenue to question the physician’s expertise or find any technicality that may invalidate their opinion.
In most cases, the opposing law firm is responsible for paying for the physician expert’s time during these depositions. However, if they feel that the rates are exorbitant, they may petition the court for more reasonable fees.
In one noteworthy case, an elderly woman presented to an ED after a fall. She was found to have a subdural hematoma and underwent a craniotomy. Following the surgery, an NG tube was placed and she was given medications through the NG tube. She developed shortness of breath over the following 24 hours, and an x-ray ultimately revealed that the NG tube was placed into her right lung. She developed an empyema and had a prolonged hospital course, but survived.
A radiologist was hired by the plaintiff to given an opinion on the case. He charged $5,000 per deposition, no matter the length. The defendant wanted to depose the expert, but felt that the deposition would only take 2 hours and that $5,000 was an excessive fee for a 2-hour deposition. Therefore, they petitioned the judge to reduce his fee to $600/hr.
The judge in the case reviewed the motion to reduce the expert’s fees. The expert was not expected to give a “particularly nuanced opinion that would set him apart as a unique expert”. Therefore, the judge agreed with the defendants, and the plaintiff’s expert fees were reduced from $5,000 per deposition to $600/hour.
While physician experts may request any fee they feel is appropriate, the court ultimately may compel them to give testimony for a far lesser amount.
#3 Your Opinions are Public Record
It is tempting to take any case that an attorney offers. However, some physicians let their greed cloud their judgment and write opinions that are not based in reality. It may seem that very few people will ever read your opinion, but remember that these opinions are a matter of public record.
In one notable case, a prominent and revered EM doctor wrote an opinion that the defendant felt was inaccurate. An ethics violation was filed and the physician was publicly censured. Carefully consider the opinions you write and ensure that they are truthful and accurate.
Dr. Eric Funk
Different states disclose expert witness opinions in various ways. In many states, the expert witness’s name may be redacted for privacy reasons. If you write an opinion, you may never get recognition or credit for it beyond the payment you receive.
On the other hand, some states include the entirety of the material you submit, including your name and CV. I have reviewed multiple documents that include the physician expert’s home address, personal cell phone number, and children’s names. I am sure the expert witnesses do not realize this sensitive information is now a matter of permanent public record.
#4 You May be Asked to Write an Opinion About Other Healthcare Workers
Most states require the expert witness to have comparable training to the defendant. In some circumstances, this is a relatively minor issue, such as spine surgeons trained in neurosurgery giving an opinion on an orthopedic spine surgeon or vice versa.
It gets slightly more complicated when a physician with specialty training writes an opinion about a subspecialist’s care. As an example, a lawsuit was filed against a gastroenterologist after a colonoscopy was done with equipment that had not been cleaned between patients. While this is revolting and obviously a breach in standard hospital operations, the plaintiff’s attorney made a mistake by hiring a physician trained only in Internal Medicine to write an opinion about the gastroenterologist’s care. The lawsuit was ultimately thrown out because the IM expert witness did not practice in the state in which the lawsuit was filed, and did not have training in gastroenterology.
The expert witness’s qualification and the judge’s commentary are shown below.
There are multiple other cases in which it is unclear who the appropriate expert witness should be.
Consider a malpractice case involving a non-EM trained physician (usually IM or FM) who is working in an ED. Should an EM physician be the expert or should an IM or FM physician be the expert?
Even more unique are cases where a chiropractor causes a vertebral artery dissection and a patient is left with serious disability. Should a neurologist be the expert witness or a chiropractor?
When a naturopathic doctor mismanages a young woman’s depression and she commits suicide, should a psychiatrist be the expert or a naturopathic doctor?
These are all real-life examples and you may be asked to be an expert witness in unusual circumstances.
Working as an expert witness can be lucrative and interesting. It can also expose you to some very odd situations and tragic clinical outcomes. The medicolegal world is opaque and hard to understand, but reviewing these lawsuits and expert witness opinions can provide valuable insight. Not only does it allow physicians to improve the care they provide, it can prepare them for work as an expert witness. For physicians interested in reading medical malpractice cases, visit the MedMalReviewer website.
Are you a medical expert witness? What advice do you have? What other useful information can be learned from reading expert witness opinions? Comment below!
Outstanding guest post! Very well written and interesting. Ty Dr Funk.
Super interesting! Great post. Thanks Dr. Funk
I have been an expert witness on two cases reviewing imaging from another radiologist.
I gave my honest opinion in the review which did not support the attorneys that hired me (they were for the defendant). I am sure if I spun a report to make it beneficial for the defendant I would have had more financial rewards come my way and it may have gone to court but I would not compromise my ethics on it and I was essentially done after the few hours of review which I was paid for.
As the survivor of a brutal divorce I have had my share of “expert witnesses” that spoke on behalf of my wife. These individuals were nothing more than paid shills. They would say anything to support the attorneys wishes just so they could get paid. They (behavioral therapists not psychologists) all proclaimed how my ex wife was a great mother and that I was not. Only later did the truth come out that my ex had a mental illness (when she deteriorated further legal intervention came in to protect my daughter and she was forced to do a formal psych eval). This was years later and the damage was already done.
I detest those people who make money this way, just spouting off whatever the lawyer wants them to say and being a puppet. The money they receive I refer to as “blood money.”
Having met you in person, I agree with the therapists that you were a lousy mother. 🙂
Honestly though, a lot of attorneys just want your honest opinion. If they don’t have a good case, they want to know it as soon as possible so they can settle!
Very interesting post. I have always learned take home messages on the few cases I have reviewed over the years. I think the main thing with fees is to be fair, reasonable and have a reason for that which you do. For instance, if you are called to testimony on a day of the week you perform surgery (vs clinic), it is not unreasonable to charge more for your time – the concern of $5000 for a deposition might cover that doc making a half day block in his schedule to accommodate the request. Always get paid something (retainer) before providing legal service – You will only get “stiffed” once to learn if you don’t learn it here.
This was a good post, just not what I had expected.
I would like to see a follow-up post on how reviewing cases has made you a better doctor.
I think there are pearls to learn about defensive medicine and documentation.
p.s. I was glad to see that the fee was reduced to $600 / hour. That’s what I charge. I have never had an attorney complain about that reasonable rate. Several attorneys said I could easily increase my rate or even double it and they would still pay for my expertise and testimony. Rates vary by supply and demand but don’t be shy about being paid for your valuable time.
Remember this blog is not primarily about practicing medicine better, it’s a financial blog for those who do! There are lots of blogs out there that do focus on that goal however. A guest post submitted primarily for that purpose would probably not be accepted. We can’t be all things to all people.
I recommend everyone try to become an expert witness for a case or two. It is very helpful to learn the process for if/when you ever get sued. I have been an expert witness a handful of times now. I don’t enjoy it but do learn from the process.
Similar to most doctors I charge high fees for this service because it is more economically efficient to see a few extra patients than it is to take on a case as an expert witness. Even with the high fees it does not pay as well as my primary job. I have only had to do 1 deposition at this point and none of my cases have gone to trial. But traveling and being out of clinic for a day is very costly for most doctors so a 5K fee for a day out of the office is reasonable IMO.
Thanks as it is a very good post.
Thanks for the post. Do you have any advice on insurance coverage for this type of work, such as errors and omissions insurance? Since this is work done outside of work one would do as an employee of a hospital or health group, do you purchase this independently? And how much does it usually cost? I’m trying to understand the financial costs that would come with doing this on the side.
Yes you can get insurance for expert work.
JDM & Associates
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Why would the defendant want to pay the plaintiff expert to testify when he could cross-examine him for free. I didn’t understand that about the fee being reduced
The defense attorney is entitled to question the expert in advance of trial to learn what the expert has reviewed, his opinion, and what he/she will say in court. The deposition is taken under similar rules to trial testimony. The defense attorney may then decide to recommend settling, or learn what counter-witness might help his case. The defense attorney must reimburse the expert for his time, but may object when it is exorbitant, as in this case.
Thank you for the clarification. That’s very interesting. I didn’t know that. So can the plaintiff attorney do the same thing to the defense expert?
Yes-the plaintiff attorney will depose the defense expert to see how strong a case the defense has as well as garner ammunition to use if case needs to proceed to trial. I have been an expert witness in over 150 cases in 5 different states and nearly 90% of he time the case settles before going to court.
I enjoyed reading your blog on Medical Expert Witness Attorneys. You and your readers might be interested in reading “Medical Malpractice: How to Prevent and Survive a Suit”, Nasca, R.J. Whitehurst L.A., Andrew L.B., Attarian, D.E.. Data Trace Publishing Company, Towson, Maryland, August 2005.
I served as an expert witness, once. I rendered an opinion in a case where the doctor made a mistake while trying to bend over backwards for a financially strapped patient. The physician had a complication with an in-office procedure as she strayed clearly from the device guidelines, in an effort to keep the cost down. It was pretty easy to render an opinion which the lawyers then used to force the physician to settle.
I hated it.
I got caught up in the emotion of it. I could see clearly from the MD’s notes that she was trying to help the patient who was paying out of pocket, but she ended up with a complication.
I undercharged the lawyer ( ~$250/hour) and then it took them a reminder to pay me, even after they won the case!
However I learned a lot from this case and it made me tighten up my documenting.
I realized that this kind of work is not for me.
Johnny Carson’s favorite phrase was that no good deed goes unpunished. You learned that in this case
A fun read. I’ve been doing personal injury defense reviews 1-2 per month since 2016 so I have more than 4 things to share.
I like the distinction between work done at home and in person. One of my colleagues refers to this as “dressed work and undressed work”. Undressed work costs less. There have been a couple of lawyers who objected to my bill. I never worked for them again. I use the same billing dartboard as endorsed by the Bar Association. Found it on eBay. Spend the extra money on the dart board because the one with the spinner is pretty flimsy and the pointer gets stuck a lot.
I was once asked how much I was charging for a deposition. It’s $1,000/hr. He asked me if I made that much in the office. I said no, actually I’d rather be doing 5 minute epidural steroid injections and billing $7,000 like the guy he hired to treat the plaintiff. A less snarky answer would be that unlike medicine, legal work is a free market. If the lawyer thinks you’re worth it or they can’t find anyone else, well that’s the rate. Expert testimony is not the practice of medicine.
Listen carefully to the question. When you’re asked how much you’re being paid for your opinion, state that you’re not being paid for an opinion, you’re being paid for your time.
If they ask you if you know what time it is, the answer is not “3 pm”. The answer is “yes”.
Learn the rules of civil procedure. I was at a depo where the plaintiff had missed copying us on the last page of a record. He handed that page to me and asked me for my opinion. I handed it back without looking at it and reminded him that he couldn’t enter new evidence at depo, please send me a copy of that page, and I will respond within 10 business days.
One lawyer threatened to keep me all night until I gave a responsive answer. At $1,000/hr, go ahead and hurt me. However Texas civil procedure rules limit each side to 6 hrs of interrogation. When I told him that he looked at the defense lawyer and asked if that was true. He didn’t know either. The plaintiff attorney said ok but breaks didn’t count. I told him that’s what the rule says.
Usually you have to behave at a depo like you would in court. If the lawyer starts badgering you, being insulting or yelling, remind them and ask that they follow proper decorum. Tell them this is their only warning and if they persist you will leave and he can go whine to the judge about it while the judge listens to the recordings.
Have clean hands and a pure heart because they will try to impeach you as a witness. I’ve had lawyers bring up my divorce, litigation with my former landlord, anything they can throw at you. Bear in mind that these guys share info about you. Here in Houston they have a listserv that disseminates information. They will share info on how to provoke you, what “tells” you might have, etc.
A lot of experts attach references to their reports. I never do that because I don’t want to spend 2 hours picking through each paper at depo. I just say my opinion is based on my training, experience, and keeping up with the literature. If they ask for a reference (usually a hard copy) I tell them fine, you’ll receive it within 10 business days after I receive the subpoena.
I have never had to testify in court for any of these cases. I asked one attorney why, and he said they often settle after my depo. They can also video the depo and show parts of it in court in lieu of testimony.
Some good, thoughtful comments. Would add that a lot of money is at stake in these cases and the attorneys often give it all that they have. My cases usually involve representing the plaintiff, lead poisoned kids. Recent case settled for $10M. Be prepared for the occasional disrespectful attorney; I deal with it by not getting upset or mad which is what they want to see and I just request a break for 10 minutes and that usually gets the attorney back to being respectful. Usually the plaintiffs attorney is there to “defend me” and they usually argue it out with the offensive attorney.
Providing expert testimony & case reviews also gives a physician a sense of comfort around attorneys (usually shaky ground for a lot of us). Not only do you get more comfortable in depositions as you go through more of them, but you also will find that you are more relaxed in a deposition if you are the defendant.
Sadly, it also teaches you that this is all just business, no hard feelings on either side (at least most of the time).
i’ve been retained as a pediatric expert on scores of cases over thirty years by dozens of attorneys, some on behalf of the plaintiff and some on behalf of the defendant. and once i was retained by a plaintiff’s attorney where i offered an opinion in favor of the defendant but was still asked to continue on the case and eventually offered testimony supporting the pediatric defendant .
thirty years ago when i was first approached asking if i would review a case for a plaintiff’s attorney, i was reluctant. i didn’t want to testify against other doctors. but during research on medical experts i read an article that swayed me to agree to review that first case. the article encouraged doctors who felt they could offer an honest opinion to undertake medicolegal work. the upshot was, if ethical doctors don’t participate, only unethical ones will.
and that’s something i wanted to encourage in others. if you feel you can give an opinion based on the facts of the case and NOT on what the attorney wants to hear, consider becoming a medicolegal expert.
in my experience, there is a significant unanticipated benefit. i have learned much more medicine from medicolegal work than i have from thirty years of cme and, i believe, i’m a much better doctor because of my work as a medical expert.
p.s. if you decide to participate i have lots of tidbits of advice but the most important, make sure you know the definition of “standard of care”.