- Preparing litigation budgets and bills;
- Preparing a current curriculum vitae;
- Reviewing the entire file of paper;
- Assisting in drafting or responding to the complaint;
- Assisting in drafting and/or responding to discovery;
- Preparing an expert report;
- Preparing a rebuttal expert report;
- Preparing for your deposition;
- Attending your deposition;
- Assisting in the deposition of the other side’s expert witness;
- Assisting in preparing for trial;
- Preparing to take the stand at trial;
- Attending trial; and/or
- Assisting in identifying or responding to any post-trial appealable issues.
Although you should be compensated for each of these tasks, these tasks take away time you could be engaging in patient care.
Compensation
It should be a no brainer, but make sure you get paid. The expert witness business is built upon reputation, integrity, credibility, and expertise. Consequently, hospitalists who have developed a niche in a small area of expertise in which they can dominate a certain market, or those who have developed a national reputation, can charge a significant amount of money depending on their area of expertise. In the absence of substantial experience, expert witness rates are dependent on the location of the case, the dollar amount at stake, and the novelty of the legal disputes at issue.
You should immediately request a written agreement that states exactly who is responsible for paying your bills, when those bills will be paid, and, in addition to your hourly rate and what services that rate covers, the specific out-of-pocket expenses that will be paid, including those that are needed to cover postage, copies, travel, lodging, and any other incidentals.
Privacy, or Lack Thereof
Thanks to the Internet, unless a protective order is in place, and even that is likely to be narrowly tailored, opposing counsels can easily pull copies of all of your past deposition and trial transcripts, divorce records, past curriculum vitae, and articles you may have written in medical school or in practice. They can also use the Internet to identify who you usually testify for, whether your testimony has ever been refused by the judge, where you live, and even whether you own any property.
In essence, any and all public dirt on your private life can be extracted and used as fodder at the next trial. Are you prepared to become an overnight public figure?
The Internal Struggle
Finally, there is no question that the decision of whether to serve as an expert witness in a malpractice case is one of the most difficult, yet most important, nonpatient care decisions a physician can make. Expert testimony is essential to medical malpractice litigation, however. Many hospitalists may find themselves balancing their duty to patients who should have access to the courts and fair compensation from injuries caused by physicians who are impaired or who deviated from the standard of care against the professional and social pressure not to testify against colleagues and not to participate in a legal system that many hospitalists feel victimizes members of their profession.
The legal system, nonetheless, relies on competent medical expertise that is just and fair and relies on medical professionals to provide that expertise. Are you ready for the challenge? If you are, the second article in this two-part series will serve as a primer for your expert report, deposition, and testimony at trial.
Steven Harris is a nationally recognized healthcare attorney and a member of the law firm McDonald Hopkins LLC in Chicago. Write to him at [email protected].