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Fall 2013


So You’re Thinking About Serving as an Expert Witness? Here’s What You Need To Know.

Christopher Ryan, Esq.
Giarmarco, Mullins & Horton, P.C., Troy, MI

Attorneys in various specialties are always keeping an eye out for outgoing, charismatic, smart physicians willing to provide expert testimony. Common cases in need of expert testimony include medical malpractice, personal injury, wrongful death and auto accidents.

Testifying as an expert witness requires qualifications that vary from state to state. Whether you have never testified as an expert witness, or testify routinely, this article will outline some considerations to keep in mind when providing (or deciding whether to provide) expert testimony.

What it Means to Serve as an Expert

You may be approached to provide expert testimony as a treating physician, or in your capacity generally as an anesthesiologist or pain management specialist in a case with which you were not involved. Sometimes, the testimony of an anesthesiologist or pain management specialist will be requested simply to explain the treatment rendered to a patient. For example, if a patient was involved in a car accident and was administered a series of injections to relieve his or her pain, the physician administering the injections may be asked to testify concerning the treatment rendered, the reasons for the treatment, the expected outcomes of the treatment, and whether or not the treatment provided benefit to the patient. In this type of case, sometimes the anesthesiologist may be asked to render an “opinion” concerning the cause of the injury itself.

In other cases, an anesthesiologist may be called upon to judge the care rendered by one of his or her colleagues, or to give a medical opinion regarding the cause of an injury. Most of the time, medical malpractice cases require expert witnesses on both sides (testifying for the treating doctor and against the treating doctor). Providing testimony in medical malpractice cases can benefit the medical community as a whole by helping to ensure that proper and appropriate care was provided.

What to Consider Prior to Serving as an Expert

As with all things, there are benefits and drawbacks to serving as an expert and the anesthesiologist or pain management specialist should consider each of them prior to making a commitment to serve as an expert. One of the most obvious benefits of providing expert testimony is the compensation. The amount charged varies from provider to provider. The attorney hiring the expert will likely discuss fees up front. Although no statistics could be located specific to anesthesiologists, rates for medical experts typically range from between $200 to $400 per hour to review records and have informal telephone conversations with counsel. The rates often increase for time spent providing testimony. Anesthesiologists should be careful when structuring their fee schedule as there are often prohibitions against charging a fee that is contingent upon the outcome of the litigation. For example, in Michigan, it is a misdemeanor for an expert witness in a medical malpractice case to testify on a contingency fee basis. Additionally, before engaging in this work, anesthesiologists should carefully review their employment contract, which may address expert testimony. Many employment contracts specify that any money received providing expert testimony belongs to the group, instead of to the individual physician. Additionally, some employment contracts may have conditions addressing the ability to serve as an expert. If you are a physician who regularly serves, or who is looking to serve as an expert, you may consider negotiating this point in your next employment agreement.

While the compensation for serving as an expert may be appealing, many practitioners refuse to provide expert testimony whenever possible. Cross-examination, and litigation in general, are adversarial by nature and many people find this environment uncomfortable. As explained below, while the procedures vary from state to state, most of the time testifying as an expert means being cross-examined by attorneys for hours on end.

What to Expect

If you have never served as an expert, but you are interested in doing so, there are a number of things you should expect. Because trial procedures vary from state to state, when you are approached to act as an expert, you should feel free to ask the attorney what he or she anticipates the process to be. For example, in a medical malpractice case, the first step for the expert is typically to review the patient’s medical records. If the anesthesiologist has been hired by the attorney representing the healthcare provider, he or she will also likely be provided with the allegations brought by the patient. After the records are reviewed, the attorney will probably contact the expert to discuss his or her opinions. Using the example of the expert hired by the defense attorney in a medical malpractice case, this is the time when the expert will tell the attorney whether he or she thinks the attorney’s client committed malpractice. If you think he or she did, then your involvement in that particular case will probably end.

If you believe the healthcare provider acted appropriately, your deposition may be requested. A deposition is an out-of-court proceeding where you will give sworn testimony and be asked questions by the opposing counsel. In cases where your deposition is not taken before trial, the first time you testify may be at trial in front of a jury.

When giving testimony, it may seem as though the attorneys are asking questions that do not have anything to do with the litigation. For example, attorneys often probe into the educational background, medical training, and experience of a witness. The attorney will also want to know each document that the witness reviewed to prepare for the testimony. These types of questions may be posed for a number of reasons including building up or tearing down the credibility of a witness. Giving expert testimony may take as little as half an hour, or as long as four or more hours.

Guidelines

The most important guideline when rendering expert testimony is to be truthful in your responses. Failure to abide by this guideline may subject you to court sanctions or criminal penalties. If it is proven that you lied under oath, it is likely that you will not be asked to testify as an expert again. Similarly, make sure that you understand the question you are answering. If you do not understand the question, ask for clarification.

In 2003, the American Society of Anesthesiologists (ASA) issued guidelines for expert witness qualifications and testimony. The guidelines were established to “limit uninformed and possibly misleading testimony.” Although the legal qualifications of expert testimony vary from state to state, the ASA guidelines state that the physician should have an unrestricted license to practice medicine, should be board certified in anesthesiology and be actively involved in the clinical practice of anesthesiology. The guidelines also state:

  1. The physician’s review of the medical facts should be truthful, thorough and impartial and should not exclude any relevant information to create a view favoring either the plaintiff or the defendant. The ultimate test for accuracy and impartiality is a willingness to prepare testimony that could be presented unchanged for use by either the plaintiff or defendant.
  2. The physician’s testimony should reflect an evaluation of performance in light of generally accepted standards, reflected in relevant literature, neither condemning performance that clearly falls within generally accepted practice standards nor endorsing or condoning performance that clearly falls outside accepted medical practice.
  3. The physician’s testimony should make a clear distinction between medical malpractice and adverse outcomes not necessarily related to negligent practice.
  4. The physician should make every effort to assess the relationship of the alleged substandard practice to the patient’s outcome. Deviation from a practice standard is not always causally related to a poor outcome.
  5. The physician’s fee for expert testimony should relate to the time spent and in no circumstances should be contingent upon outcome of the claim.
  6. The physician should be willing to submit such testimony for peer review.

ASA allows for the submission of complaints by ASA members against other ASA members for violation of these rules. Sanctions for violating these rules can come in the form of a censure, suspension, or expulsion from the ASA.

Conclusion

When an anesthesiologist is giving expert testimony, it is important that he or she understand exactly what he or she is getting into. This will probably be different depending on whether you are being hired to testify concerning treatment you rendered, or whether you are being hired for another purpose such as to opine on whether another physician complied with the standard of care. Because the format of litigation differs from state to state, you should consider asking the attorney who hired you what to expect from the process.


Christopher Ryan, Esq. is an associate at Giarmarco, Mullins & Horton, P.C. in Troy, MI. Mr. Ryan practices healthcare law, working with healthcare providers in the areas of corporate formation and dissolution, contract negotiation, and health compliance. Mr. Ryan also practices litigation with a special emphasis on defending healthcare providers faced with claims of medical malpractice. He can be reached at (248) 457-7154 or at cryan@gmhlaw.com.