Should You Offer Your Services as An expert witness?

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You may be contacted by a defense or plaintiff medical malpractice attorney asking you to review a case and render an expert opinion about the care others provided to a patient you have not treated. The attorney may have obtained your name from another attorney familiar with your professional reputation or your unflappability on the witness stand in an unrelated case, from literature searches establishing your expertise in a particular area, or from unknown references. You should ask the attorney how he or she came to approach you. Whatever the source initiating the contact, and despite the flattery of having your opinion solicited and the lure of an additional source of income, your decision to function as a paid medical expert should not be entered into lightly. You should consider the following factors:

  1. Does your schedule and patient coverage support allow the flexibility to appear in court when required?  Is the case simple, or will you need  to review voluminous medical records, meet with the attorney repeatedly, give a lengthy deposition, and spend hours in court? If you cannot spare the time and do not have the practice coverage to ensure follow-through on your own patients, avoid offering expert opinions beyond those you are required to give. Once you make the commitment to be the case medical expert, you must see it through regardless of the time, inconvenience and disruption of patient care which may result
  2. How well do you verbally spar without a script and how do you handle the stress of being challenged in front of a room of spectators? If you imagine that your leadership and persuasive communication skills in your clinical life will translate well to the courtroom, you may want to reconsider.  Some surgeons bristle under the aggressive and persistent grilling by adversarial attorneys. You may want to observe some expert testimony and imagine how well you would tolerate a similar experience.
  3. Might your testimony be used against you at a later time?  Your status as a medical expert and your testimony in a given case are readily retrievable by current data bases.  If any patient, ever sues you for malpractice, testimony you give in this case may be misconstrued, taken out of context or otherwise used against you. This possibility dictates caution whenever you are asked to testify.
  4. Are you being asked to be more certain of your opinion, to be more critical or supportive of other providers’ care, or to venture outside your area of expertise in order to help the defendant’s or plaintiff’s case?  Maintaining professional boundaries when providing expert testimony can be surprisingly challenging once you are caught up in the dynamics of a malpractice lawsuit. Keep in mind that the attorney you are working with has one goal: to present the best face on his or her case possible. The attorney does not care about the long-range repercussions to you professionally if you stretch your opinion beyond current and authoritative medical evidence/practice to accommodate the needs of the case. Maintaining appropriate professional boundaries will require your ongoing vigilance as an expert witness.