[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.
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.
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!