[Editor’s Note: Today’s guest post is written by The Physician Philosopher (TPP), an anesthesiologist who blogs to physicians about finances and wellness. This is the first part of a two-part series on how to create a physician side-hustle by serving as a medical expert witness. The second part tackles what to do after you’ve landed the job and can be found on TPP’s website. We have no financial relationship.]
So, You Want to Be a Medical Expert Witness?
Serving as a medical expert witness for medical malpractice cases can be challenging, yet rewarding. In fact, there are organizations that exist solely to help you perform this job. As I ventured into this line of work, I experienced several unexpected circumstances that I would have wanted to know about prior to getting involved. For any of the medical professionals out there interested in getting involved in this kind of work, I want to give you a heads up on things that I feel are important to know prior to your involvement. This will be broken up into two posts.
In Part 1, we will discuss how to get started and what you need to know immediately thereafter. Part 2 will discuss some specific pitfalls to avoid as you navigate the medical expert witness work once you’ve accepted it. This can be a great side hustle, if you are open to the idea.
1) Get Your Foot in the Door
The best way, in my opinion, to get involved in medical expert witness work is by word of mouth. That way, you are having someone who has previously provided trusted work to an attorney’s office provide a reference for you. Likewise, that person who sent you the work is more likely to send you an offer from a reputable office.
There are certainly other ways to get involved, such as through some of the professional organizations that will list your contact information as an expert witness. Utilizing this kind of method, you will get “cold calls” or “cold emails” looking to purchase your services. I turned away from this because it seemed a bit tacky; it’s as if you are trying to do expert witness work as your main gig. Your main job should be, well, being a doctor (or nurse, PA, etc). This builds the most credibility both in and out of court, in my opinion. I’d recommend against building an expert witness website for the same reason.
2) Make Sure You Qualify
That said, word of mouth can be a slow process. Often times you are hanging around waiting for an opportunity. When my first opportunity arrived, I jumped at it and ran into some snags. I offered my services by sending my CV and my fee-schedule (the next point) to the attorney’s office. (You should do this). They replied in kind that they were interested in my help. This particular case was an expedited review, which meant I had to provide a quick turn-around.
The problem was that, in the midst of reviewing the case, I subsequently realized that some states have very specific requirements to be an expert witness.
Here are some examples of specific requirements that qualify you as an expert witness (These are state specific): The person must practice in that state or in a contiguous state; an expert must have practiced for X amount of years (usually 1-3 years) prior to the incident involved in the case; the expert must practice in the same field as the defendant being named in the litigation; at least 50% of the time in the last two years has been dedicated to clinical work.
The point of all of this is to say the following. If you plan to get involved in medical expert witness work, then you need to make sure you know the laws for the state where the case took place. I often refer to this reference, if I have questions.
3) Fee Schedule
You wouldn’t buy a car without knowing how much it cost. Most attorney’s offices are not going to hire you without knowing what your fee-schedule is going to charge them. If you aren’t sure what to charge, then you have two options.
The first is that you can ask the person you likely talked to in point number 1 above to get a “word of mouth” reference. If they are willing to name you as a reference, they may also be willing to share their fee-schedule. At the least, they should be willing to advise you on what you should charge. This is what I did.
If you aren’t so fortunate, then you can also consult this information gathered by a SEAK study on various expert witness fee-schedule charges. This gives the high, low, mean, and median costs for various charges. For example, the retainer (see below) for most medical expert witnesses on average (mean) is $1500. The low is $75. The high is $15,000. You read that right. $15,000 upfront paid prior to work.
4) Keep Them on the Hook With a Retainer
Make sure you are the shark and not the bait. No one is going to fish for you.
There is a saying, “If you don’t have a seat at the table, you’re probably on the menu.”
As I alluded to in point number 3 above, you should get paid up-front. Get yourself a seat at the table, and make the attorney’s office pay for it. This is called a retainer.
My very first expert witness experience had me getting paid more than two months after I had completed the work and given the attorney’s office my invoice. For this reason, I want to explain two of the more important reasons to have a retainer. Otherwise, you may be set up to experience the same frustrations.
First, you need to be “retained” before you provide any services to the attorney involved. This will help you to get paid in a timely manner. More importantly, this will make sure you get paid at all. Believe it or not, it is not uncommon for expert witnesses to provide help while expecting to get paid afterward… only to never be paid at all. Don’t let that happen to you.
The second reason a retainer is important is because how long it takes for you to get paid is dependent on who is paying you. Is the attorney’s office paying you directly? Or is it coming from the medical malpractice insurance company? In my first case, I was being paid by the insurance company. Guess what? It took a very long time. I should have demanded a retainer up front. Rookie move. After four emails, it showed up two and a half months after my invoice had been received.
5) It Is Profitable Work
As you can tell from the previously referenced SEAK study looking at fee-schedules, this work can be very profitable. If you charge a $1500 retainer and then $400 per hour thereafter, you can spend 10 hours doing work and earn $5500 (or $4000, if you “fill up the retainer” with hours worked).
That said, do the job well and recognize that there are strings attached. You may have to miss work to perform a deposition or testify in court. Some cases will keep you involved for two weeks. Others may involve your work for more than a year.
More importantly, I think this line of work makes you a better physician. It helps you realize where the pitfalls are and what is truly dangerous from a medical-legal perspective. Additionally, performing this work will make you better at documentation. You will learn what is worth documenting (things out of the norm) and what is not necessary to document. It’ll also teach you to document contemporaneously as you work.
Hopefully, this post at least peaked your interest in medical malpractice work and you learned about some of the important aspects of getting started. Stay tuned for part 2, where I discuss some of the things you need to be aware of once you’ve received your retainer and you start doing the work.
Have you performed medical expert witness work? Are there other pointers you’d give to someone who is wanting to get started (but hasn’t yet started)? Comment below!
Thanks for the opportunity to talk about one of my favorite sources of side hustle income! If you found it useful, make sure to check out Part 2 as well!
TPP
Great post. It would be great if you can do separate post about documentation issues Do’ and Dont’s what you have learnt from your experience while working as medical expert witness. Thanks
I agree. Great post. Lots of interesting things for MDs considering this to think about. I’ve been doing med malpractice expert work for about 20 years (since my junior attending days). Some things I’ve learned (among many) along the way:
(1) Word of mouth is great to get these jobs. Get good word of mouth by being honest, friendly, and knowledgable in your specialty. Don’t try to mold facts to fit what you think counsel wants to hear. It also doesn’t hurt if you’ve published or spoken about your specialty. However, if you have seen and managed a gazillion cases of what your are being asked your opinion about, that is great as well.
(2) Don’t write anything down, unless asked. TPP, you are quite correct about this. Everything is discoverable.
(3) Don’t be embarrassed to ask for an hourly rate of what your think your time is worth, and get it upfront as a retainer of at least 5-10 hours. Don’t give an opinion, and don’t review the materials sent, until you get the retainer check. Often it’s not the counsel’s fault when payment is late–it’s the insurer (if you do defense). Remember than these guys (insurers) are often looking at large numbers (much larger than you will receive in payment for your services if they lose the case or the settlement). Your services are much more valuable than they are leading you to believe.
(4) Don’t be afraid of depositions or trial testimony. We explain things to laypeople, sometimes very upset laypeople, every day of our professional lives. It’s basically the same thing, and if you act like it is and are comfortable explaining things (we all generally are as MDs) then you will do fine.
(5) Don’t be afraid to answer your hourly rate, and what percent of defense versus plaintiff work you do if asked. The lawyers are just trying to get under your skin with those sorts of questions. Juries expect docs to get paid a lot, and expect them to do more defense versus plaintiff. Juries (if it ever gets that far, which is increasingly uncommon) really care about getting it right, and using your opinion to help them.
(6) Aside from giving you some extra income, reviewing med mal cases and why they are brought does make you a better doctor. Not only do you understand about the need to document (and what exactly to document, which is more important), you learn why people sue docs in the first place. That piece of psychology can be extremely helpful clinically to manage expectations and outcomes.
Is this sort of work something that requires malpractice insurance coverage? Technically it’s not practicing medicine however it requires a medical license.
Not sure I understand the question.
You won’t get a medical expert witness opportunity if you aren’t working in the field in which you are an “Expert.” I don’t personally know of any docs who work without malpractice coverage.
It is a good question though. If I’m an expert and I retire I still am licensed and could testify. If I don’t have clinic I would drop malpractice costs. Could I still do this work? You do lose some credibility if you aren’t practicing but you still could do medicolegal work.
Also even with Med-Mal coverage and a clinical practice you may not be covered for some of this and also for IME, FCE, etc. See if you need to get an additional rider to your malpractice insurance policy to cover “errors and omissions (E&O)” for this line of work.
Its less about credibility and more about requirements. Most states have requirements to be working currently as a physician to do medical expert witness work. Others require that you have worked in that state or an adjacent state within a certain time frame.
One of the links above will bring you to a document for each states requirements. As you might imagine, all fifty states have different rules.
You are always required to send your CV to do this work, and seems unlikely they would hire you while retired, because determining if someone is practicing within the current standards of care is that you are currently doing the same.
In the very rare exception of the above, I am not sure of what the answer is.
My state has no requirements and there are plenty of examples of “semi-retired” folks who testify. I suspect they purchase some kind of limited insurance but it wouldn’t be a full malpractice coverage.
Federal employees are exempt from malpractice requirements. So VA doctors don’t have malpractice insurance unless they also do something on the side.
Nice post TPP. I personally have never sought to be a medical expert witness but had two different lawyer groups contact me for my services.
Fortunately both cases I was involved in did not require going to court (I assume they settled before trial). Even though going to court would have brought in considerable money I didn’t want to deal with the hassle. (I remember in my divorce case medical expert witnesses truly made a killing (I did mention in my blog that my divorce was one of the most contentious the judge has ever seen and we had 3 medical expert witnesses show up during the course) with some requiring a minimum of $5k just to clear out schedule and attend court (and these were not docs but psychologists).
You are spot on that this type of work makes you practice medicine better as you realize there are pitfalls in these cases that make you subsequently look out for them yourself.
Sometimes legal firms try to get a witness who has a reputation for agreeing with whatever side is paying them. I have never been that type of person and both cases I was involved with I gave my opinion on if something was done right or wrong, so try not to fall into that trap of just being a puppet for counsel and compromise your ethics by working to support their hypothesis rather than give your true opinion
Completely agree. This is why it’s important to work for both sides, too. It makes you more believable.
The cases I’ve been involved in, I had to tell some of the lawyers that I couldn’t support their side because I felt that they were on the wrong side of the argument. After explaining why, I answered any remaining questions that they had, and then they thanked me for my time and let me go. It was ten hours of work examining the case and coming up with my conclusion for a one hour phone call.
You have to do what you feel is right. No amount of money is going to help you sleep at night if you are doing it just to get paid.
TPP
I have a lot more thoughts around this topic but most of them have been covered in the prior guest post you referenced:
https://www.whitecoatinvestor.com/a-side-hustle-to-consider-medicolegal-or-insurance-consulting/
Those interested in this topic may enjoy reading that and especially all the helpful comments readers made.
This is great.
In the past, I have received flak for suggesting that other side-gig commentaries in the WCI realm were too vague. But this is concrete and actionable. Thank you.
Also interesting how you did the two part thing. I assume this is a fun business deal–I wouldn’t mind hearing how that worked out, but understand it is none of my business!
Yea, it was interesting. Never seen/done it before but it is a great way to force people to come to your website to get “the rest of the story.” Kind of wish I’d thought of it. No business deal there though.
Jim, if it makes you feel any better I submitted it as one giant post to “cover it all” and Jill felt that it was too long. So, we broke it up into two posts and I asked if I could run the second part on my site.
There is a lot to cover and as Wealthy Doc pointee out, even these two posts are not comprehensive!
TPP
I’ve worked on four med mal cases over the years, always for the defense. I turn down any offer from a plaintiff’s attorney, as I have no interest in being party to suing a doctor. I understand that working for both sides could boost credibility, but having been on the other end of a claim and having friends and family who have, I just can’t do it. I have, however, turned down more defense cases than I’ve taken, as some of the cases I’ve reviewed were truly indefensible.
Regarding asking for a retainer, I agree with TPP that – if being paid promptly is important to you – get that retainer! I was never worried about getting stiffed, as the firms I’ve worked with are well-respected. But they and the insurance companies do drag their feet with the bill-paying sometimes, so it has taken a couple of months to get paid for my final invoice. I do submit invoices for each “chunk” of work, as I go along, so at least it wasn’t like I was waiting for one big 5k check.
So you’re saying all doctors are good doctors? There is never a situation where a doctor falls below standard of care?
Take cases based on their merits not simply based on who you represent – guess that’s one way to do it….
Also, retainer based work is the norm –
I was at first skeptical about SEAK – in February I went to a conference to help prep for upcoming deposition
SEAKs conference was professional and worth every penny – great networking and advice!
No, I am not saying that all doctors are good doctors, nor that doctors cannot fall below the standard of care. I thought that was obvious when I said “some of the cases I’ve reviewed were truly indefensible,” but perhaps not.
My point is that we are all entitled to draw our own lines, with respect to what we can live with doing and what we can’t. I don’t intend to impugn the integrity of physician expert witnesses who choose to work for the plaintiff. I simply choose to not do that sort of work. If you or any other physician choose to do it, that’s fine with me.
JustSayin,
I’m impressed that you were open-minded enough to check out SEAK on your own and that you found the training helpful. A lot of people would have just stuck to their original idea rather than be flexible or change their mind. Just Sayin’
Great post. Finishing training this year and looking forward to opportunities like this.
My question is this: can expert witness be a substantially different career to allow for a separate retirement SEP IRA or individual 401k?
Absolutely. It’s 1099 income and you operate as a contractor. You can absolutely use this income to set up a solo 401k (a solo 401k is prerfable over a SEP IRA so that you can still do back door Roth IRA contributions)
TPP
Yes. You don’t need a different career to do an individual 401(k), you just need a separate business with unrelated ownership. If your doctor gig and your expert witness gig are both 1099 gigs, that’s all one business owned by you.
Along the same lines, I was recently approached to consider this type of work by a colleague. He mentioned that prior to start, I should get my own tax ID number (ostensibly separate from my SSN??). I don’t really understand that or what it would offer. Thoughts?
Not necessary. Can use your own SSN as sole proprietor. I did need a separate EIN for opening a business bank account, which I don’t think is a bad idea, but it’s not necessary.
TPP
Thank you. Why a separate business bank account rather than just additional income as 1099 money?
Just keeps things clean.
It’s like a business bank account, it’s just a good idea but not mandatory or protective in any way.
SEP is the way to go for me. You can max it out at about 20% of your taxable gross from the side income. It also is separate from any other 401 (k), 403(b) contribution maximums you have made (the law is very specific that these maximums are per job/employer). If you make a lot on the side (say in excess of 250K), you can make the maximum SEP deduction ($54,000 in 2017, for example).
It’s probably one of the last decent ways to shelter income, as the new tax laws don’t allow physicians to use the 20% deduction on self-employed AGI if their income is greater than $315,000.
Why are you recommending a SEP-IRA over an individual 401(k)? You know if you use a SEP-IRA it complicates/eliminates the ability to do a Backdoor Roth IRA right? Why not just do an individual 401(k) plus a backdoor Roth IRA? You can put the same amount of money into it.
Keep in mind that not all expert witness review is med mal. Sometimes it’s personal injury.
I am in a sub-specialty of a sub-specialty so I occasionally get asked to do expert witness work since there are not a lot of people in my field. After dabbling in it initially, I honestly usually try to find a way to get out of it now and refer them to someone else. It sounds glamorous and pays well, but it often leaves a bad taste in your mouth. In the medical field, people are generally nice and trying to help each other and are on the same team–the legal field does NOT operate that way at all.
If it’s just a chart review and phone call that’s OK, but appearing for a depo or trial is not enjoyable.
I have never been a big fan of medical malpractice and have never been interested in that type of work. However, I have seen hundreds of personal injury patients in my short 5 year career. The fact is patients are injured in accidents and need honest treating physicians to guide them to recovery. If you are a physiatrist, pain doc, orthopedic surgeon, neurologist, or spine surgeon, then this is definitely something to look into doing. The great thing about legal work is you get paid for EVERYTHING. You can bill for your time (even in 15 min increments), testimony, letters, medical records review, and, of course, your clinical care. As far as a side gig, this is extremely lucrative. There is the option of doing medical records reviews after work or you can just diversify your practice by seeing personal injury patients in clinic in addition to work comp, commercial insurance, etc… I view it as diversification of my payer mix.
How did you get involved in reviewing personal injury cases and seeing these patients in your clinic? As a physiatrist, I’m leery of personal injury lawyers. There are a few in my locale that have sketchy reputations, and resort to tactics such as sending a potential expert a subpoena to try and avoid paying the witness fees. How did you find the decent ones to work with?
The way I got involved seeing person injury patients is was somewhat by chance. After my pain fellowship, I joined a practice that saw a large volume of personal injury patients. For most doctors, it is unfamiliar territory and somewhat scary because of the unknown. I did not have a single lecture in medical school, residency, or fellowship on the subject. However, it is really not that complicated. You typically see patients injured in car accidents whose medical bills are being paid by either their car insurance company or the other driver’s auto insurance. I think the key is to work with honest, respectable attorneys. There are some very shady ones out there. I recommend asking around to see who has a good reputation locally and then go out to dinner with them and let them know you are interested in seeing personal injury patients. If you can provide excellent care for the patients and communicate well with the attorney’s office (such as keep them updated on the case by faxing over clinical notes in a timely manner), then they will see the value you bring to treating their clients.
With regard to the subpoena issue, that is one of the oldest tricks in the book that lawyers use against doctors that are inexperienced in personal injury. They absolutely CANNOT get out of paying you fees by issuing a subpoena. Typically, the subpoena is issued requiring you to provide testimony at a deposition (much more rarely at a trial). However, most doctors see the subpoena, get freaked out, and feel obligated to do whatever the subpoena says. This is a scare tactic attorneys use. There is a simple way to handle this situation. First, you must have a “Fee Schedule”. You can make this in 5 minutes. Create a Word Document with “Expert Retainer Fees” on the top, your name and credentials, and then list what your fee is for legal work (such as deposition hourly fees, medical record review hourly fees, phone call per 15 min fees, letters, and trials) and include stipulations for payment (such as receiving payment for depositions 2 weeks prior to it taking place). Second, as soon as you get a subpoena, you send the Fee Schedule to the attorney’s office and inform them that you will happily provide whatever service they request as long as they comply with that Fee Schedule.
Let me reiterate, the attorneys are obligated to pay you according to your Fee Schedule. However, if you do not have a Fee Schedule or do not send it to them because you don’t know how things work, then you may be scared into doing what the subpoena says without any reimbursement. This is EXACTLY what the attorney is banking on happening. It is a game changer when they get the Fee Schedule sent to them, because then they know they are dealing with a knowledgeable doctor rather than a doctor they can take advantage of that is naive to the medicolegal world.
My fee per hour for depositions is $1500 and so if I get a subpoena, I am happy to spend as much time as the attorney likes talking about the case. It’s a win-win, I get well reimbursed and they get all the questions they want answered by me. I stand by my work and clinical care and so I don’t mind explaining why I provided the care I did to the patient.
I should mention that on several occasions after sending my Fee Schedule, the attorneys office responds by saying, “Please disregard the subpoena, we decided we didn’t really need to do the deposition after all.” In other words, they essentially decided my testimony was not worth as much as they were going to have to pay for it. Again, win-win because we both don’t waste our time with a frivolous deposition.
Also, if they don’t pay me 2 weeks prior to the deposition, then they know according to the Fee Schedule that the deposition will be cancelled and rescheduled. This is totally within my legal rights. They have to comply and respect the Fee Schedule or I absolutely do not have to comply with their subpoena. That is how the legal world works, but most doctors are oblivious.
Sorry for the long response, but I wanted to really play out many of the misunderstandings that lead to the scenario of giving “free testimony”. Feel free to shoot me off other questions if they come to mind.
I learned this (kind of thing) on my first case. It took the attorney’s office two and a half months to pay me, because I didn’t demand the retainer up front. I know better now.
I view it as a drink at a restaurant. You’ve got to keep filling it up before I do anything including, order my food, eat it, or tip the server at the end. When it gets empty, I ask for a re-fill.
This is the only way to get paid “along the way” and to make sure you get paid at all. The clearer your fee schedule is up front, the better it is for everyone involved. As I often say to anyone who will listen, setting expectations in any area of your life is likely one of the most important things you can do for any relationship whether business or personal.
TPP
Thanks for the thorough response. Like you said, there weren’t any medicolegal lectures in school or residency. These forums and blogs are a goldmine for this kind of info.
Thank you for the above. Never thought about the subpoena part.
1. To get medicolegal work: There are a lot of ways. The best is word of mouth. You do a good job testifying as an expert when your patient is suing a third party (e.g. you treated them from injuries resulting from a MVA). Then those attornies may ask you about other cases. Just be clear that you will stick to the facts of the case and are not biased plaintiff/defense. If they want an honest medical opinion you can provide that. The good ones will use you, the others move along.
2. I see the subpoena as a non-issue. You need to get clear in your head a vital legal distinction: Fact vs. expert opinion. They can force you to testify regarding facts (e.g. you witnessed a car accident and are called to testify about what you saw). They can not force you to testify expert opinions – especially for free. If they refuse to pre-pay just make it clear that you will be glad to show up but you will answer any non-factual questions as “I have no opinion on that.” That is the last thing they would want in their case.
Don’t forget that there are things other than med mal that need experts. As a toxicologist I’ve been called several times to testify in courts martial on DUIs, sexual assaults, and attempted homicides. EM docs will be most applicable, but I’ve seen other specialties too, like getting an ENT to tell a jury that yes, strangulation could potentially be deadly.
For those on active duty you aren’t supposed to be an expert witness unless it directly benefits the government (which includes testifying for the defense in a court martial since that saves them money). I can’t speak to GS civilian and VA docs but my impression is that they have similar rules.
Good point. Anything where your expertise is required may prove helpful to you. And it’s okay to use that. You’ve worked hard to obtain that expertise.
TPP
How much time off work does it typically require? I only have so much vacation… Do you have time to plan your time off in order to be apart of a case or is it like jury duty? Just be available anytime in the next 2 weeks?
Your fee schedule will essentially state that necessary notice is required for in person work so as to be able to request time off.
Most people I know usually charge what they would have made in that one day working in addition to charges for the actual work. Deposition costs a certain amount per hour. Going to trial costs something more and usually “at least x dollars” to prevent the situation where the case gets settled on the court house steps and they do not require your work. Gotta get paid for your time.
It’s their responsibility to give you a big enough heads up, which they would want to do so that you can adequately prepare for the case. This is all, of course, talking about being a medical expert witness and not being deposed for another reason.
Thank you so much! Very interesting… Do you know – are medical expert witnesses only used when a patient is suing a doctor? Or other types of cases as well? I know I’m ignorant about this process, but would love to know more…
I would be happy if I could find an independent medical opinion for my claims for the Veteran Administration.