Courtney E. Lindbert, JD

 

Acting as an expert witness in a legal matter can be a nice way to compliment your practice. However, it is important to understand the role of experts, as well as their duties and obligations. Expert witnesses are called to testify on the basis of their specialized knowledge, not necessarily their direct knowledge of events and issues in the case.

Medical experts often play an important role in the evaluation, development, and preparation of a case long before it ever goes to trial. In some states, to even file a medical malpractice complaint a plaintiff is required to have the case evaluated by an expert and obtain a written report outlining why the plaintiff has a reasonable and meritorious cause for filing such an action.

There are different types of expert witness testimony. Experts can give opinion testimony as a physician who provided treatment to the plaintiff and whose conduct is not at issue. The second type of expert witness is a retained or controlled expert witness. This is a person giving opinion testimony after being retained by a lawyer on behalf of one of the parties to the lawsuit.

Before you give deposition or trial testimony, your opinions must be disclosed in writing and provided to the other parties in the case. In federal court, this is governed by Federal Rule of Civil Procedure 26. If the case is pending in state court, your written opinions are governed by local court rules. In both cases, the written opinions should be thorough and complete because you will not be allowed to testify to new opinions at the time of trial but will generally be allowed to expand upon those disclosed in writing at your deposition trial.

In order for a jury to hear your opinions at trial, your opinions must be reliable. In federal court, expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the principles and methods to the facts of the case.

This means, that if a fact or evidence at issue involves scientific, technical, or specialized knowledge that is outside the scope of an ordinary layman’s experience, or involves complex issues challenging a layman’s comprehension, expert testimony is required. The scientific evidence must not just be relevant but also reliable. Expert opinions will be scrutinized to see if they are based on scientific testing or review of scientific data rather than just assumptions or speculation. Additionally, the experts must be qualified by their knowledge, skill, experience, training, or education. Given these parameters, it should come as no surprise that expert trial testimony is required for all medical malpractice cases.

Some states follow the “new or novel rule” which dictates that expert testimony is only admissible if the methodology or scientific principal on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. This means that the evidence must be generally accepted as reliable in the relevant scientific community. New or novel techniques will be placed under the scrutiny of this standard. Courts will look at papers, books, journals, and case law to make a determination as to the reliability and general acceptance. Failure to meet the requisite standards may render a physician ineligible to testify.

 

If you are considering acting as an expert witness there are a few basic dos and don’ts to keep in mind:

Do be mindful of your criticism. If testifying in a medical malpractice case, you will be giving sworn testimony as to whether another physician deviated from the standard of care. Be aware that your testimony can later be used against you if your conduct is ever at issue, or if you contradict yourself in another case. Attorneys often look for prior testimony to use when questioning you at deposition and trial.

Do be aware of any applicable professional society guidelines. Many professional societies publish ethical guidelines as it relates to expert medical testimony. Be aware of those and know that you may be asked about them, especially if you are a member of that society.

Do be prepared for basic areas of cross-examination. There are a few tried and true areas that will always be the subject of cross-examination. Any perceived bias you may have, your fees, and whether you do more work for plaintiffs versus defendants are a just few examples. You should also be prepared to be cross-examined on the differences between personal practice (what you do) and an actual deviation from the standard of care.

Do keep written communication to a minimum. All communication between the expert physician and the attorney is potentially discoverable by the other side. The rules differ for state and federal courts. Emails, draft reports, and written questions all cause the creation of unnecessary side issues and areas of cross-examination. The best practice is for all substantive communication to be done by phone.

Do be clear in what you are charging. It is not unusual for an expert to charge one hourly rate for record review, and a different rate for testimony. Your fee schedule should also note that any travel expenses you incur will also be invoiced. Your hourly rate should be appropriate for your area of practice. In our experience, gastroenterologists typically charge $400.00-$600.00 an hour for record review, and $550.00-$700.00 an hour for testimony.

Do not submit an invoice until after your deposition. Submitting invoices before your deposition creates unnecessary cross-examination issues. At the time of retention, speak to the attorney and ask if you will be able to submit invoices as you work. Most attorneys prefer invoices be submitted after your deposition. Because the wheels of justice often turn slowly, you could be waiting an equally long time to submit an invoice and get paid. One way to avoid this dilemma is to require a retainer at the time of retention.

Do not sign up with an expert finder service. Resist the urge to sign up with an expert finder service. The best medical experts come from referrals from other attorneys or physicians. Expert retention via an expert finder service creates the impression that you are a “hired gun” in the business of being a professional expert and can diminish your credibility. The finder services also charge a commission or fee.

As a gastroenterologist, you have the specialized knowledge to provide expert testimony regarding the cause of an injury and extent of damages in cases where you have treated a patient. You also have the type of education and training necessary to serve as an independent expert. Doing so is a serious task that can be time consuming and stressful. However, it can also be rewarding and allow you to make sure a fair and just outcome occurs.

This article is for general informational purposes only. Please consult your own attorney if you have questions. This information is not intended to create an attorney-client relationship.

 

Mr. Mills is an equity partner at Cunningham, Meyer & Vedrine PC in Chicago. Ms. Lindbert is a partner at Cunningham, Meyer & Vedrine PC. Both focus their practices on defending doctors and hospitals in medical malpractice actions.

 

Acting as an expert witness in a legal matter can be a nice way to compliment your practice. However, it is important to understand the role of experts, as well as their duties and obligations. Expert witnesses are called to testify on the basis of their specialized knowledge, not necessarily their direct knowledge of events and issues in the case.

Medical experts often play an important role in the evaluation, development, and preparation of a case long before it ever goes to trial. In some states, to even file a medical malpractice complaint a plaintiff is required to have the case evaluated by an expert and obtain a written report outlining why the plaintiff has a reasonable and meritorious cause for filing such an action.

There are different types of expert witness testimony. Experts can give opinion testimony as a physician who provided treatment to the plaintiff and whose conduct is not at issue. The second type of expert witness is a retained or controlled expert witness. This is a person giving opinion testimony after being retained by a lawyer on behalf of one of the parties to the lawsuit.

Before you give deposition or trial testimony, your opinions must be disclosed in writing and provided to the other parties in the case. In federal court, this is governed by Federal Rule of Civil Procedure 26. If the case is pending in state court, your written opinions are governed by local court rules. In both cases, the written opinions should be thorough and complete because you will not be allowed to testify to new opinions at the time of trial but will generally be allowed to expand upon those disclosed in writing at your deposition trial.

In order for a jury to hear your opinions at trial, your opinions must be reliable. In federal court, expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the principles and methods to the facts of the case.

This means, that if a fact or evidence at issue involves scientific, technical, or specialized knowledge that is outside the scope of an ordinary layman’s experience, or involves complex issues challenging a layman’s comprehension, expert testimony is required. The scientific evidence must not just be relevant but also reliable. Expert opinions will be scrutinized to see if they are based on scientific testing or review of scientific data rather than just assumptions or speculation. Additionally, the experts must be qualified by their knowledge, skill, experience, training, or education. Given these parameters, it should come as no surprise that expert trial testimony is required for all medical malpractice cases.

Some states follow the “new or novel rule” which dictates that expert testimony is only admissible if the methodology or scientific principal on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. This means that the evidence must be generally accepted as reliable in the relevant scientific community. New or novel techniques will be placed under the scrutiny of this standard. Courts will look at papers, books, journals, and case law to make a determination as to the reliability and general acceptance. Failure to meet the requisite standards may render a physician ineligible to testify.

 

If you are considering acting as an expert witness there are a few basic dos and don’ts to keep in mind:

Do be mindful of your criticism. If testifying in a medical malpractice case, you will be giving sworn testimony as to whether another physician deviated from the standard of care. Be aware that your testimony can later be used against you if your conduct is ever at issue, or if you contradict yourself in another case. Attorneys often look for prior testimony to use when questioning you at deposition and trial.

Do be aware of any applicable professional society guidelines. Many professional societies publish ethical guidelines as it relates to expert medical testimony. Be aware of those and know that you may be asked about them, especially if you are a member of that society.

Do be prepared for basic areas of cross-examination. There are a few tried and true areas that will always be the subject of cross-examination. Any perceived bias you may have, your fees, and whether you do more work for plaintiffs versus defendants are a just few examples. You should also be prepared to be cross-examined on the differences between personal practice (what you do) and an actual deviation from the standard of care.

Do keep written communication to a minimum. All communication between the expert physician and the attorney is potentially discoverable by the other side. The rules differ for state and federal courts. Emails, draft reports, and written questions all cause the creation of unnecessary side issues and areas of cross-examination. The best practice is for all substantive communication to be done by phone.

Do be clear in what you are charging. It is not unusual for an expert to charge one hourly rate for record review, and a different rate for testimony. Your fee schedule should also note that any travel expenses you incur will also be invoiced. Your hourly rate should be appropriate for your area of practice. In our experience, gastroenterologists typically charge $400.00-$600.00 an hour for record review, and $550.00-$700.00 an hour for testimony.

Do not submit an invoice until after your deposition. Submitting invoices before your deposition creates unnecessary cross-examination issues. At the time of retention, speak to the attorney and ask if you will be able to submit invoices as you work. Most attorneys prefer invoices be submitted after your deposition. Because the wheels of justice often turn slowly, you could be waiting an equally long time to submit an invoice and get paid. One way to avoid this dilemma is to require a retainer at the time of retention.

Do not sign up with an expert finder service. Resist the urge to sign up with an expert finder service. The best medical experts come from referrals from other attorneys or physicians. Expert retention via an expert finder service creates the impression that you are a “hired gun” in the business of being a professional expert and can diminish your credibility. The finder services also charge a commission or fee.

As a gastroenterologist, you have the specialized knowledge to provide expert testimony regarding the cause of an injury and extent of damages in cases where you have treated a patient. You also have the type of education and training necessary to serve as an independent expert. Doing so is a serious task that can be time consuming and stressful. However, it can also be rewarding and allow you to make sure a fair and just outcome occurs.

This article is for general informational purposes only. Please consult your own attorney if you have questions. This information is not intended to create an attorney-client relationship.

 

Mr. Mills is an equity partner at Cunningham, Meyer & Vedrine PC in Chicago. Ms. Lindbert is a partner at Cunningham, Meyer & Vedrine PC. Both focus their practices on defending doctors and hospitals in medical malpractice actions.

 

Acting as an expert witness in a legal matter can be a nice way to compliment your practice. However, it is important to understand the role of experts, as well as their duties and obligations. Expert witnesses are called to testify on the basis of their specialized knowledge, not necessarily their direct knowledge of events and issues in the case.

Medical experts often play an important role in the evaluation, development, and preparation of a case long before it ever goes to trial. In some states, to even file a medical malpractice complaint a plaintiff is required to have the case evaluated by an expert and obtain a written report outlining why the plaintiff has a reasonable and meritorious cause for filing such an action.

There are different types of expert witness testimony. Experts can give opinion testimony as a physician who provided treatment to the plaintiff and whose conduct is not at issue. The second type of expert witness is a retained or controlled expert witness. This is a person giving opinion testimony after being retained by a lawyer on behalf of one of the parties to the lawsuit.

Before you give deposition or trial testimony, your opinions must be disclosed in writing and provided to the other parties in the case. In federal court, this is governed by Federal Rule of Civil Procedure 26. If the case is pending in state court, your written opinions are governed by local court rules. In both cases, the written opinions should be thorough and complete because you will not be allowed to testify to new opinions at the time of trial but will generally be allowed to expand upon those disclosed in writing at your deposition trial.

In order for a jury to hear your opinions at trial, your opinions must be reliable. In federal court, expert testimony is governed by Federal Rule of Evidence 702, which states:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

b) the testimony is based on sufficient facts or data;

c) the testimony is the product of reliable principles and methods; and

d) the expert has reliably applied the principles and methods to the facts of the case.

This means, that if a fact or evidence at issue involves scientific, technical, or specialized knowledge that is outside the scope of an ordinary layman’s experience, or involves complex issues challenging a layman’s comprehension, expert testimony is required. The scientific evidence must not just be relevant but also reliable. Expert opinions will be scrutinized to see if they are based on scientific testing or review of scientific data rather than just assumptions or speculation. Additionally, the experts must be qualified by their knowledge, skill, experience, training, or education. Given these parameters, it should come as no surprise that expert trial testimony is required for all medical malpractice cases.

Some states follow the “new or novel rule” which dictates that expert testimony is only admissible if the methodology or scientific principal on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. This means that the evidence must be generally accepted as reliable in the relevant scientific community. New or novel techniques will be placed under the scrutiny of this standard. Courts will look at papers, books, journals, and case law to make a determination as to the reliability and general acceptance. Failure to meet the requisite standards may render a physician ineligible to testify.

 

If you are considering acting as an expert witness there are a few basic dos and don’ts to keep in mind:

Do be mindful of your criticism. If testifying in a medical malpractice case, you will be giving sworn testimony as to whether another physician deviated from the standard of care. Be aware that your testimony can later be used against you if your conduct is ever at issue, or if you contradict yourself in another case. Attorneys often look for prior testimony to use when questioning you at deposition and trial.

Do be aware of any applicable professional society guidelines. Many professional societies publish ethical guidelines as it relates to expert medical testimony. Be aware of those and know that you may be asked about them, especially if you are a member of that society.

Do be prepared for basic areas of cross-examination. There are a few tried and true areas that will always be the subject of cross-examination. Any perceived bias you may have, your fees, and whether you do more work for plaintiffs versus defendants are a just few examples. You should also be prepared to be cross-examined on the differences between personal practice (what you do) and an actual deviation from the standard of care.

Do keep written communication to a minimum. All communication between the expert physician and the attorney is potentially discoverable by the other side. The rules differ for state and federal courts. Emails, draft reports, and written questions all cause the creation of unnecessary side issues and areas of cross-examination. The best practice is for all substantive communication to be done by phone.

Do be clear in what you are charging. It is not unusual for an expert to charge one hourly rate for record review, and a different rate for testimony. Your fee schedule should also note that any travel expenses you incur will also be invoiced. Your hourly rate should be appropriate for your area of practice. In our experience, gastroenterologists typically charge $400.00-$600.00 an hour for record review, and $550.00-$700.00 an hour for testimony.

Do not submit an invoice until after your deposition. Submitting invoices before your deposition creates unnecessary cross-examination issues. At the time of retention, speak to the attorney and ask if you will be able to submit invoices as you work. Most attorneys prefer invoices be submitted after your deposition. Because the wheels of justice often turn slowly, you could be waiting an equally long time to submit an invoice and get paid. One way to avoid this dilemma is to require a retainer at the time of retention.

Do not sign up with an expert finder service. Resist the urge to sign up with an expert finder service. The best medical experts come from referrals from other attorneys or physicians. Expert retention via an expert finder service creates the impression that you are a “hired gun” in the business of being a professional expert and can diminish your credibility. The finder services also charge a commission or fee.

As a gastroenterologist, you have the specialized knowledge to provide expert testimony regarding the cause of an injury and extent of damages in cases where you have treated a patient. You also have the type of education and training necessary to serve as an independent expert. Doing so is a serious task that can be time consuming and stressful. However, it can also be rewarding and allow you to make sure a fair and just outcome occurs.

This article is for general informational purposes only. Please consult your own attorney if you have questions. This information is not intended to create an attorney-client relationship.

 

Mr. Mills is an equity partner at Cunningham, Meyer & Vedrine PC in Chicago. Ms. Lindbert is a partner at Cunningham, Meyer & Vedrine PC. Both focus their practices on defending doctors and hospitals in medical malpractice actions.