Our legal system recognizes that, in the interest of justice and fairness, expert witnesses must be used in a variety of areas so that the trier of fact, be it a judge or a jury, can adequately understand the information presented in a matter so as to arrive at a fair and unbiased decision. An expert witness is a witness qualified by knowledge, skill, experience, training, or education to provide a scientific, technical, or other specialized opinion about the evidence presented or a fact issue.
In matters involving healthcare, an expert witness is frequently required. Depending on the issues involved, individuals can range from physicians through nurses and extend to healthcare administrators. Many of our most respected professionals broaden their professional scope and augment their incomes by giving expert testimony.
However, if an expert witness is to maximize his/her experience in this role, there are several factors that need to be considered.
First and foremost is a desire to participate in the legal system in this role. This role involves reviewing cases, forming and writing opinions, reviewing matters with attorneys in a deposition and, potentially, testifying as an expert witness in the court room.
Secondly, to most effectively participate in this role, expert witness's knowledge and practice of the profession must be current. Experts are asked testify to the "standard of care" in an area of expertise. In the law of negligence, this is defined as the degree of prudence that a reasonable person should exercise under similar circumstances. The standard of care is not the average quality of care, but, instead, the bottom or lowest level of care that is still considered acceptable when determining if liability exists. The law is attempting to determine if the actions in question were below those considered minimally acceptable by the medical community, not whether it was either the best, or even the average, of care administered in the community.
The ability to provide a thoughtful analysis of the issues in question is important. This requires a thorough and complete review of all the materials of the case presented to the expert. This analysis is then synthesized in the form of a written expert report that summarizes the pertinent facts of the case and then gives an opinion of the case based on a "reasonable degree of medical certainty". Even though an expert is hired by one of the parties in litigation, the expert's opinion must be thorough, unbiased and impartial, it is to be an accurate assessment of the state of the art as it applies to the matter at hand.
As the litigation progresses through the discovery phase, depositions will be taken. This is an opportunity for the expert to further expound on an opinion in the matter. At a deposition, all of the attorneys for the parties involved in the case have the opportunity to ask questions designed to clarify the experts' opinion. Expert testimony is under oath so answers have the same weight as if testimony were being given on the witness stand in a court of law. In all of these matters, the ability to express oneself clearly and concisely is a valuable asset.
Following the accumulation of all of the relevant materials and the depositions of all of the relevant parties in a matter, the discovery phase of the litigation is closed. At that time, one of two things will occur. Either the parties will be able to work out a mutually satisfactory settlement based on the facts developed in the discovery phase of the litigation, or the parties will proceed to trial for adjudication of the matter. Occasionally, a matter may be dismissed at this time as the information developed in the discovery phase of the trial does not support proceeding with further litigation.
If the litigation proceeds to trial, then the expert witness will be called on to give testimony before a judge and jury. Generally, the court will attempt to accommodate the schedule of the expert witness as much as possible in the timing of testimony. The attorney for the party whose theory of the case the expert's testimony supports, will introduce the expert to the jury and question the expert in an open-ended fashion so that the expert can tell a story. The opposing attorney will then cross-examine the witness, generally with close-ended questions, seeking specific information. This may proceed through several rounds of questioning by each side as both attorneys seek to use the expert's testimony to develop individual theories of the case.
Generally, following this, the expert witness's involvement in the matter is over. However there are other matters to which the expert must be sure to attend.
The expert needs to submit timely bills to the contracting attorney. Services should be billed as performed. This reimbursement should be based on a written agreement with the contracting attorney executed in advance of any services rendered. It should specify what services are and are not billable, the hourly rate, and any other considerations, such as reimbursement for travel time and mileage. Also, if the expert does not have an ongoing relationship with the contracting attorney, an advanced retainer against which payments for services are drawn is a consideration.
Listing with national expert witness posting services may not be the quickest way to start providing expert witness services. These services are both expensive and do not guarantee cases. Instead, making local healthcare attorneys aware of an interest in providing expert testimony in an area of specialization often produces faster results.
Expert witnesses often find this role intellectually, professionally and financially rewarding.
If you have questions regarding this article, please contact Gerald V. Burke, M.D., Esq. at gburke@barmak.com or by telephone at (609) 454-5351.
