Tips on Being an Expert Witness

By MONICA J. SMITH

When medical issues turn into legal ones, attorneys often call on medical professionals—doctors, nurses and operating room managers—to inform the case and help make decisions on how to proceed. Serving as an expert witness has its perks, but there’s a lot to consider before taking on this responsibility.

At the 2020 OR Manager conference, Rosemary Welde, MBA, BCC, RN, drew on her 30 years’ experience as an expert witness to thoroughly explore the role.

“Either you’re already doing expert witness work and building clients, or you’ve taken a course and gotten certified. Somehow or another, an attorney got your number and contacted you. What do you need to do?” Ms. Welde said.

What Does It Take to Be One, And Why Would You Want to?

The function of an expert witness is to draw from their own expertise in order to express an independent opinion relevant to the case. Some states require physicians testifying in a malpractice case to be of the same specialty, and some require the expert to be licensed in the same state.

“The qualifications include specific onthe-job experience, usually an advanced degree in a particular field; excellent communication, organizational and research skills; and flexibility in your schedule,” Ms. Welde said.

The work pays well, averaging $350 per hour for medical expert witnesses and $500 per hour for medical expert testimony, but this varies by degree and with experience.

“As I’ve gained experience and expertise in multiple areas, I’ve raised my rates,” said Bruce Ramshaw, MD, a managing partner at CQInsights, a health care data analytics firm in Knoxville, Tenn. “Consulting as a medical expert is one of the few areas for physicians in health care where you can be reimbursed what your expertise is worth, whereas most of what we do clinically is negotiate with insurers for rates based on negotiating power rather than expertise or outcomes.”

When You Should Take a Case And When You Shouldn’t

There are a number of elements to consider when you’re asked to serve as an expert witness. First and foremost, does your experience apply?

“Usually when I decline a case, it’s because I don’t feel it’s an area of my expertise, and that expertise has changed over time,” said Dr. Ramshaw, whose clinical work has shifted from a broader general surgery practice to primarily focusing on hernia repair in the past 15 years.

Also, be certain you don’t know anyone involved in the case. “If you know any of the involved parties—the surgeon, nurses or anesthesiologist—legally you cannot serve as an expert,” Ms. Welde said.

Finally, determine whether you will be available for meetings, deposition and, if the case goes to court, trial. Depositions usually last about two hours depending on the complexity of a case. “But if the case goes to trial, you’ll need to be available for at least two weeks,” Ms. Welde said.

Moving Forward and Preparing

Once you’ve decided to take a case, you’ll have to deal with the nuts and bolts of compensation. “The insurance carrier of the attorney’s client will need to approve your CV and fee schedule for you to be an expert in the case,” Ms. Welde said. “Then you’ll need to agree on a billing process.”

Dr. Ramshaw’s approach to reviewing a case starts with a general but thorough overview. “I go through the information available with an open mind, putting myself in the treating physician’s shoes at the time of the treatment. Once I understand that information, I go back and focus on areas I think are really important, to develop a whole story.”

Ms. Welde keeps an eye out for red flags while reviewing preoperative records, anesthesia notes, intraoperative records and postoperative notes. “Some things you’ll want to consider are the length of the procedure, blood loss, number of staff involved and complications.”

Most important, ask yourself if the standard of care was met. “This is absolutely critical and is one thing you’ll be asked at the deposition: What is the standard of care and was it met?” Ms. Welde said.

Often, the case is resolved after the depositions are taken. “In my experience, cases go to trial less than 10% of the time,” Dr. Ramshaw said. “It’s a grueling process for everyone involved, with a lot of potential for secondary victims. Nobody wins emotionally, so both sides are under some incentive not to take it to court.” ■

‘Consulting as a medical expert is one of the few areas for physicians in health care where you can be reimbursed what your expertise is worth, whereas most of what we do clinically is negotiate with insurers for rates based on negotiating power rather than expertise or outcomes.’

—Bruce Ramshaw, MD