subpoena and expert witness

[la gringa]

I read some prior threads and didn't find a clear answer -

Received a subpoena today about a patient I saw over 3 years ago. Was subpoenaed right away due to emergency custody hearing - was in family court, patient had injuries c/w NAT and police/DCFS were involved in the ED. Due to time sensitive manner, went and testified, read from chart etc. Prosecutor aka dad's attorney asked for expert witness testimony, done on that day which is now again over 3 years ago.

Issue brought up then to bring in medical record - talked to legal at that gig (have since changed groups), advised I was not guardian of record, asked lawyer to subpoena medical records as I could not bring them.

Wish I had those emails - don't have access to that email any longer.

Asked to come to court again 1 year later due to continued custody issue - went, was there about 6 hours (including delay for bomb thread at courthouse) - not called to the stand. that was over 2 years ago.

Lawyer has my yahoo email and iirc cell phone # from prior, yet called my group coordinator over 10 times trying to reach me last week, ultimately sent me a subpoena AGAIN for this Monday AM. Problematic for multiple reasons including shift Sun PM, just found out about the time/date Wed 2pm, also a close friend just died of metastatic adenoca and his funeral may well be Monday.... 3 hours away.

I feel I was more than helpful, probably too much so, in the initial custody hearings. Have emailed lawyer verifying that it's not a criminal case, reminding of my lack of custodianship over the med records.

SO:
1. if expert witness testimony only - hourly rate of ??
2. beyond reading from medical record and stating typical EM training on child abuse - what on earth would they need me for?

thanks ya'll. and happy thanksgiving to all!

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[gro2001]

I read some prior threads and didn't find a clear answer -

Received a subpoena today about a patient I saw over 3 years ago. Was subpoenaed right away due to emergency custody hearing - was in family court, patient had injuries c/w NAT and police/DCFS were involved in the ED. Due to time sensitive manner, went and testified, read from chart etc. Prosecutor aka dad's attorney asked for expert witness testimony, done on that day which is now again over 3 years ago.

Issue brought up then to bring in medical record - talked to legal at that gig (have since changed groups), advised I was not guardian of record, asked lawyer to subpoena medical records as I could not bring them.

Wish I had those emails - don't have access to that email any longer.

Asked to come to court again 1 year later due to continued custody issue - went, was there about 6 hours (including delay for bomb thread at courthouse) - not called to the stand. that was over 2 years ago.

Lawyer has my yahoo email and iirc cell phone # from prior, yet called my group coordinator over 10 times trying to reach me last week, ultimately sent me a subpoena AGAIN for this Monday AM. Problematic for multiple reasons including shift Sun PM, just found out about the time/date Wed 2pm, also a close friend just died of metastatic adenoca and his funeral may well be Monday.... 3 hours away.

I feel I was more than helpful, probably too much so, in the initial custody hearings. Have emailed lawyer verifying that it's not a criminal case, reminding of my lack of custodianship over the med records.

SO:
1. if expert witness testimony only - hourly rate of ??
2. beyond reading from medical record and stating typical EM training on child abuse - what on earth would they need me for?

thanks ya'll. and happy thanksgiving to all!

My experience to this is limited to talking to some attendings while in residency who did this as a side gig and to being subpoenaed several times for criminal cases (also during residency) during which I was declared an expert witness but did not bill for my time.

1- It seems the going rate is around $300-500/hr for preparation, document review, etc and closer to $500/hr for testimony. However, in reality, your chances of collecting are limited unless you've actually set it up as a business. You can send whatever bill you want to the lawyer's office, but what do you do if he does not pay? Do you have an agreement with a collections agency set up?

2- In the cases I was involved, after commenting on the injuries they would sometimes cross examine and ask questions that would try to discredit the victim: was there suspicion of intoxication/drugs, etc.

Recommendations I was given and what I learned from my experience:
-It's OK to ask whoever subpoenaed you to brief you and what to expect.
-You can ask for accommodations to be made based on your clinical schedule. Although apparently it is sometimes preferable for witnesses to go in a certain order to build a certain narrative, one time they actually interrupted the testimony of another witness (a cop) to put me on the stand so I could get back to the hospital quickly,
-Answer ONLY what was asked, as briefly as possible. Don't speculate or add anything you think might be helpful.
-After anyone asks you a questions it's ok to wait out a pause that would be uncomfortably long in normal conversation before answering if you have to think about an answer.
-Checking the paper copy of the medical record you will probably be provided is a legitimate pause after they ask any question. You should probably do this as you think about your answer, whether you need to refer to the record or not.
-Whenever they ask you any question about what happened on that day, try not to introduce anything from memory. The medical record is your memory. Say the lawyer asks you "Did the patient arrive in the morning or in the evening?" You pause, flip through the medical record, and say "It says here they were triaged at 8:05 AM." Or if it's not referenced in the medical record, after flipping through it say "I don't have independent recollection of that and I don't see it mentioned in the medical record".
-Whenever a question seems 'iffy', your two go to phrases are "That is outside my area of expertise" and "I don't have independent recollection of the case".

 

[southerndoc]

One point a former med-mal attorney girlfriend of mine gave me is that if you ever have to say "I think" or give your opinion of something, it is classified as expert witness testimony. If you don't have a clear and concise recollection of something, it's best to just say I don't remember and not speculate.

 

[em1234]

$500/h seems reasonable, if you are being called as an expert witness to give your expert assessment of NAT/pediatric emergency medicine in general, etc. But if you are being called to testify about a case you saw and comment about the findings of the child as they relate to the case, it sounds like you are being called as a material witness. It would be odd, in my experience, to be called as both expert and material witness because you would be giving an expert assessment of material facts that you have created/found. Also, having you as both material and expert, the opposing attorney could use your own documentation to question your expertise, ie: why didn't you order test X? Wouldn't test X have been useful to look for injury Y (some incidental thing that has no actual bearing on the case)? As the expert, why wouldn't investigating this injury have been necessary? In the end, you end up defending your own care as the "expert." Maybe the case was so clear cut and the work up so solid that your attorney thinks you can serve both rolls, but I can't say I have ever seen that before.

I would just clarify with your attorney that you are actually being called as an expert and not a material witness. If you're being called as the expert, bill them for sure.

When I have been a material witness, any question about something that I would normally do but didn't expressly document and don't specifically remember, my go to punt response is, "though it is my usual practice to do so, I do not have any recollection of doing so in this specific case."

 

[la gringa]

to the best of my knowledge, this is still family court in regard to a custody case. though i clearly remember the patient due to all of these goings-on, i do not have vivid memory of an event 3 years ago. from my prior days in court, the mother hadn't done anything asked of her to get the child back, and the father lives 3 time zones away.

i emailed her to clarify material vs expert last week. it's really unclear to me what my presence would add to the case as i know it.

 

[Birdstrike]

I read some prior threads and didn't find a clear answer -

Received a subpoena today about a patient I saw over 3 years ago. Was subpoenaed right away due to emergency custody hearing - was in family court, patient had injuries c/w NAT and police/DCFS were involved in the ED. Due to time sensitive manner, went and testified, read from chart etc. Prosecutor aka dad's attorney asked for expert witness testimony, done on that day which is now again over 3 years ago.

Issue brought up then to bring in medical record - talked to legal at that gig (have since changed groups), advised I was not guardian of record, asked lawyer to subpoena medical records as I could not bring them.

Wish I had those emails - don't have access to that email any longer.

Asked to come to court again 1 year later due to continued custody issue - went, was there about 6 hours (including delay for bomb thread at courthouse) - not called to the stand. that was over 2 years ago.

Lawyer has my yahoo email and iirc cell phone # from prior, yet called my group coordinator over 10 times trying to reach me last week, ultimately sent me a subpoena AGAIN for this Monday AM. Problematic for multiple reasons including shift Sun PM, just found out about the time/date Wed 2pm, also a close friend just died of metastatic adenoca and his funeral may well be Monday.... 3 hours away.

I feel I was more than helpful, probably too much so, in the initial custody hearings. Have emailed lawyer verifying that it's not a criminal case, reminding of my lack of custodianship over the med records.

SO:
1. if expert witness testimony only - hourly rate of ??
2. beyond reading from medical record and stating typical EM training on child abuse - what on earth would they need me for?

thanks ya'll. and happy thanksgiving to all!

If it's expert witness testimony you can bill whatever amount you want. $500 per hour? Sure. Completely reasonable. If they don't like it, they can --- off and go find a cheaper expert. There's no set amount. You decide. You're obligated in ZERO way whatsoever. If they refuse to pay it, then you tell them, "Ok, I will simply be reading my chart back to you and will not give any opinion at all beyond what's in the word for word." Just ask your group director if you can see their fee schedule, as many older docs in such positions have done this work and would likely share their fee schedule for you, that you could use as a guide to make your own.

This >>> "stating typical EM training on child abuse" is absolutely expert witness testimony, by the way. Charge for it, and once answering such questions, all of your testimony becomes expert witness testimony at that point. Just make sure you tell that to the lawyer ahead of time.

One poster above made a comment about not likely getting paid for expert witness testimony. Absolutely not true. You must get paid for this. You absolutely, 100% MUST get paid for this. You have every right to charge and demand payment ahead of time, based on an estimate of likely hours spent and/or demand a deposit up front. As far as setting up a formal business to do the occasional expert witness testimony, I don't think this is true, but it may vary based on your state. I know many people that do an occasional expert witness job (every year or two) and they've not set up a formal business structure for that. You definitely have to declare the income and pay taxes on it, but since its money earned in your capacity as a physican, I don't believe you have to set up a separate business for it. If anyone has a link to something concrete on that, I'd be interested to read it.

All that being said, if you have a subpoena, you do have to respond to it. And if you're called as fact witness only, you're screwed. You read your chart back gratis, no pay. Most of the time though, they're going to veer off and try to bait you into giving some opinion to help their case, and see if you're gullible enough to do it for free.

 

[Daiphon]

You must get paid for this. You absolutely, 100% MUST get paid for this. You have every right to charge and demand payment ahead of time, based on an estimate of likely hours spent and/or demand a deposit up fron .

This. 100 times this. My rate sheet clearly states my prep/dep/court fees, and a minimum number of hours expected for all (e.g. a "deposit"). Check clears before I do anything, and I keep detailed records (including travel times for dep/court) of how I use the time.

Would also recommend not charging different rates based on prosecution vs. defense - can be pulled and then you have to argue out of the "bias" the opponent tries to paint you with.

-d

 

[southerndoc]

I use Harvest to keep track of my time for peer review, consulting work, etc. I highly recommend it for situations like these.

Regarding billing the lawyer for expert witness pay, if you have agreed to be paid, then the lawyer would be foolish to not pay for your time. If you send him a bill for expert witness testimony and it goes unpaid, then you can file a complaint with the state bar association. They in turn will likely sanction the lawyer. No lawyer wants that on their resume, so you can guarantee payment after an ignored bill by simply telling them if they don't pay it will result in contacting the bar association.

 

[gro2001]

If it's expert witness testimony you can bill whatever amount you want. $500 per hour? Sure. Completely reasonable. If they don't like it, they can --- off and go find a cheaper expert. There's no set amount. You decide. You're obligated in ZERO way whatsoever. If they refuse to pay it, then you tell them, "Ok, I will simply be reading my chart back to you and will not give any opinion at all beyond what's in the word for word." Just ask your group director if you can see their fee schedule, as many older docs in such positions have done this work and would likely share their fee schedule for you, that you could use as a guide to make your own.

This >>> "stating typical EM training on child abuse" is absolutely expert witness testimony, by the way. Charge for it, and once answering such questions, all of your testimony becomes expert witness testimony at that point. Just make sure you tell that to the lawyer ahead of time.

One poster above made a comment about not likely getting paid for expert witness testimony. Absolutely not true. You must get paid for this. You absolutely, 100% MUST get paid for this. You have every right to charge and demand payment ahead of time, based on an estimate of likely hours spent and/or demand a deposit up front. As far as setting up a formal business to do the occasional expert witness testimony, I don't think this is true, but it may vary based on your state. I know many people that do an occasional expert witness job (every year or two) and they've not set up a formal business structure for that. You definitely have to declare the income and pay taxes on it, but since its money earned in your capacity as a physican, I don't believe you have to set up a separate business for it. If anyone has a link to something concrete on that, I'd be interested to read it.

All that being said, if you have a subpoena, you do have to respond to it. And if you're called as fact witness only, you're screwed. You read your chart back gratis, no pay. Most of the time though, they're going to veer off and try to bait you into giving some opinion to help their case, and see if you're gullible enough to do it for free.

This. 100 times this. My rate sheet clearly states my prep/dep/court fees, and a minimum number of hours expected for all (e.g. a "deposit"). Check clears before I do anything, and I keep detailed records (including travel times for dep/court) of how I use the time.

Would also recommend not charging different rates based on prosecution vs. defense - can be pulled and then you have to argue out of the "bias" the opponent tries to paint you with.

-d

I use Harvest to keep track of my time for peer review, consulting work, etc. I highly recommend it for situations like these.

Regarding billing the lawyer for expert witness pay, if you have agreed to be paid, then the lawyer would be foolish to not pay for your time. If you send him a bill for expert witness testimony and it goes unpaid, then you can file a complaint with the state bar association. They in turn will likely sanction the lawyer. No lawyer wants that on their resume, so you can guarantee payment after an ignored bill by simply telling them if they don't pay it will result in contacting the bar association.

I take back what I said. Clearly you guys have more experience with this and OP should listen to that advice over mine. I guess my pitfall may have been not discussing getting paid ahead of time and not knowing what my options are. Good to know for the future 🙂

 

[deleted126335]

I read some prior threads and didn't find a clear answer -

Received a subpoena today about a patient I saw over 3 years ago. Was subpoenaed right away due to emergency custody hearing - was in family court, patient had injuries c/w NAT and police/DCFS were involved in the ED. Due to time sensitive manner, went and testified, read from chart etc. Prosecutor aka dad's attorney asked for expert witness testimony, done on that day which is now again over 3 years ago.

Issue brought up then to bring in medical record - talked to legal at that gig (have since changed groups), advised I was not guardian of record, asked lawyer to subpoena medical records as I could not bring them.

Wish I had those emails - don't have access to that email any longer.

Asked to come to court again 1 year later due to continued custody issue - went, was there about 6 hours (including delay for bomb thread at courthouse) - not called to the stand. that was over 2 years ago.

Lawyer has my yahoo email and iirc cell phone # from prior, yet called my group coordinator over 10 times trying to reach me last week, ultimately sent me a subpoena AGAIN for this Monday AM. Problematic for multiple reasons including shift Sun PM, just found out about the time/date Wed 2pm, also a close friend just died of metastatic adenoca and his funeral may well be Monday.... 3 hours away.

I feel I was more than helpful, probably too much so, in the initial custody hearings. Have emailed lawyer verifying that it's not a criminal case, reminding of my lack of custodianship over the med records.

SO:
1. if expert witness testimony only - hourly rate of ??
2. beyond reading from medical record and stating typical EM training on child abuse - what on earth would they need me for?

thanks ya'll. and happy thanksgiving to all!

I think that you may not be able to bill anything for this case. You were involved in the case over a patient that you saw. That also makes you a fact witness. In my state if you are being deposed as a fact witness they can also ask you your expert opinion and you are obligated to give it, gratis. It is not the same as if you were asked to review the case by one side or the other and can charge whatever you want.
An example of this would be if you were walking down the street and saw a car accident and were deposed about what you saw. Subsequent to your seeing the accident you were asked to opine about care rendered to the victims by the paramedics. You are obligated to answer and cannot charge. This is my understanding of the rules in my state. You mileage may vary.

 

[Hercules]

Another approach in your situation (if you know for sure there is no way they will pay you as an expert witness) is to simply tell them you have no recollection of events beyond your records and as such you will simply read your records back to them and nothing more (no opinions, etc). As such your presence doesn't really do anything to further their case so they may be unwilling to waste their time (lawyers don't mind wasting your time at all but they value their own). In our group, this approach has spared several doctors the pain in the ### of spending an off day in court.

 

[Birdstrike]

I think that you may not be able to bill anything for this case. You were involved in the case over a patient that you saw. That also makes you a fact witness. In my state if you are being deposed as a fact witness they can also ask you your expert opinion and you are obligated to give it, gratis. It is not the same as if you were asked to review the case by one side or the other and can charge whatever you want.
An example of this would be if you were walking down the street and saw a car accident and were deposed about what you saw. Subsequent to your seeing the accident you were asked to opine about care rendered to the victims by the paramedics. You are obligated to answer and cannot charge. This is my understanding of the rules in my state. You mileage may vary.

Well...there are lots of ways to answer questions. There are ways to answer very persuasively and convincingly and in ways that will help a certain side's case. Yet there are other ways to answer.

There's, "Yes, this man crashing into this car absolutely caused your client's injury."

And there's, "Uh...well, I think....well...sometimes it. Well...uh, injuries like this ...uh...well. Wait. What was the question again? See...uh, I'm not really sure, without more information...uh...uh.."

Attorneys are masters at playing this game they created. Let them know, you know how to play, and that your testimony is going to be worth what they're paying. If they pay nothing, they get just the facts. If they don't then, you'll follow the laws of the state obviously, but only do the bare minimum. Don't let them steal your consultant services without proper compensation.

Or, let them. It's your choice.

 

[southerndoc]

I think that you may not be able to bill anything for this case. You were involved in the case over a patient that you saw. That also makes you a fact witness. In my state if you are being deposed as a fact witness they can also ask you your expert opinion and you are obligated to give it, gratis. It is not the same as if you were asked to review the case by one side or the other and can charge whatever you want.
An example of this would be if you were walking down the street and saw a car accident and were deposed about what you saw. Subsequent to your seeing the accident you were asked to opine about care rendered to the victims by the paramedics. You are obligated to answer and cannot charge. This is my understanding of the rules in my state. You mileage may vary.

What state are you in? I am not aware of any state that requires expert witness testimony out of a fact/material witness. You are required by law to describe what you saw and not your opinion of what happened.

I once was deposed by a plaintiff over an assault case. They were suing the security guard of a company for punching them. I had told them ahead of time my fee for expert witness testimony. The plaintiff refused to pay me anything. I read the chart, described what I saw, etc.

Plaintiff's Attorney: "doctor, in your experience was the bruising to his face consistent with being punched?"

Me: "there was a bruise on his face as I previously mentioned, but I cannot opine as to what caused the bruise."

Plaintiff: "Was the bruise secondary to blunt force trauma?"

Me: "Bruises sometimes happen spontaneously in medical situations, so I cannot opine as to what caused the bruise."

Plaintiff: "Was the bruise in a pattern consistent with a human fist?"

Me: "It doesn't look like I documented the size of the bruise and did not take a picture of it, so I cannot say what could have possibly caused it."

Plaintiff: "Here is exhibit D with a photo of my client's face taken the day after the incident. Does that seem consistent with a human fist causing the bruise?"

Me: "I cannot say because the photo is not to scale and there are no reference marks noting the size of the bruise."

You get what you pay for.

 

[deleted126335]

What state are you in? I am not aware of any state that requires expert witness testimony out of a fact/material witness. You are required by law to describe what you saw and not your opinion of what happened.

I once was deposed by a plaintiff over an assault case. They were suing the security guard of a company for punching them. I had told them ahead of time my fee for expert witness testimony. The plaintiff refused to pay me anything. I read the chart, described what I saw, etc.

Plaintiff's Attorney: "doctor, in your experience was the bruising to his face consistent with being punched?"

Me: "there was a bruise on his face as I previously mentioned, but I cannot opine as to what caused the bruise."

Plaintiff: "Was the bruise secondary to blunt force trauma?"

Me: "Bruises sometimes happen spontaneously in medical situations, so I cannot opine as to what caused the bruise."

Plaintiff: "Was the bruise in a pattern consistent with a human fist?"

Me: "It doesn't look like I documented the size of the bruise and did not take a picture of it, so I cannot say what could have possibly caused it."

Plaintiff: "Here is exhibit D with a photo of my client's face taken the day after the incident. Does that seem consistent with a human fist causing the bruise?"

Me: "I cannot say because the photo is not to scale and there are no reference marks noting the size of the bruise."

You get what you pay for.

Fair point. I should have said that you are obligated to respond to questions posed. Responses can be helpful or not. I suppose if I had no skin in the game as a defendant and had no dog in the fight, I might choose to respond unhelpfully as you did in the above testimony. But in my state the attorneys do get a free pass at asking expert opinion questions of a fact witness. How you answer is up to the individual.

Question for you: If they refused to pay you anything, why did you even bother showing up? I suspect that the answer is you were obligated (under threat of contempt) to show up as a fact witness, and they tried to pull expert testimony out of you for free. Good for you for not acquiescing. But I suspect that you still had a duty to show up and to respond to the questions asked.

 

[southerndoc]

You are required by law to show up for any deposition where you are issued a subpoena.

You actually aren't required to answer. You can always just say "I refer to the medical record and would like the court reporter to read it."