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  • Subpoena to court for expert witness

    I have been recently called to a courthouse (more than 1 hour drive from my practice) to testify as an expert witness.  Without going into too much detail, an officer was punched and came to my office for treatment.  I am now being summoned to provide testimony.  My question is, shouldn't I be compensated as an expert witness, as I have to drive 3 hours round trip and leave my practice for a day?  Or is this civic duty as it is the state as the prosecution?  Just wanted to see if anyone has experience.

  • #2
    That's an interesting question, for sure.  No experience here, but I was curious enough to do some searching and found this article:

    http://medicaleconomics.modernmedicine.com/medical-economics/news/clinical/personal-finance/you-just-received-subpoena-now-what

    I'm not a lawyer (or doctor), but this seems to be the pertinent section of that article:
    If you're deposed as a treating physician—not as a defendant—you're entitled to payment for your time—generally by the attorney taking your testimony. In most jurisdictions, you'll receive a nominal appearance fee, your travel expenses, and possibly an amount equal to the value of your lost practice time. When you're deposed as an expert in the case, you can charge an expert witness fee. Depending on your location and specialty, those fees can range from $200 to $600 an hour, or a fixed amount for a half or full day. Once you agree to testify as an expert, however, you must show up. If you don't, you've breached your contract.

    If you're subpoenaed to testify at a trial, the rules depend on whether you've been called as a fact witness or as a medical expert. When you're called as a fact witness, you must appear wherever and whenever the trial takes place, and you'll receive no fee. However, the attorney who subpoenaed you should be able to tell you which day you'll testify; and if your office is near the courthouse, he may be able to give you one or two hours notice before you're due. Otherwise you could sit through hours or even days of other people's testimony. If the attorney isn't cooperative, or makes unreasonable demands on your time, you can contact the trial judge (or his clerk) and ask him to intervene on your behalf.

    When you're subpoenaed to testify as an expert witness at a trial (or a deposition), your rights are stronger. You can't be compelled to provide expert testimony; you must agree to do so. If you do, you're entitled to charge a reasonable fee for your services. You and the attorney who subpoenaed you should settle on the fee in advance. Once you agree to testify as an expert, however, you must appear in court when called.

    When you're called to testify as a treating physician, your situation is more complicated. If you're merely recounting the treatment you provided and your thinking at the time, you may be considered a fact witness, and thus not entitled to an expert witness fee. In that case, however, you should limit your testimony to a factual account of your treatment, as recorded in the patient's chart.

    If your testimony goes beyond such an account, and includes your current opinion of treatment rendered by other physicians, you may be considered an expert witness, and thus entitled to an expert's fee. Obviously, you should settle the scope of your testimony beforehand with the attorney requesting your appearance.

    Hopefully someone else can chime in that has some real experience.  I'd like to know the answer for curiosity's sake as well.
    I should have been a pair of ragged claws. Scuttling across the floors of silent seas.

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    • #3
      This is really helpful, I am going to ask the attorney if I am an expert or a fact witness.  I assume it is more of a fact witness, and to the attorney's credit they are trying to make it as easy on me as possible.  Still what a huge inconvenience.

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      • #4
        If you don't get compensated, pretty big chilling effect on treating anyone like that in the future.

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        • #5
          Exactly, I am not seeking out this type of thing.  I don't work at a trauma center or anything of the like.  Just another inconvenience in a job full of them I guess.

          Comment


          • #6
            This happened to me. The DA's office seemed to expect me to show up for free, but I informed them that blocking a 1/2 day of the schedule for my appearance was a significant cost to my group for which they expect compensation. The group gave me the time and I got a check from the DA, which I in turn gave to the group. It was not quite what a private attorney would compensate for medicolegal work (certainly not the rate quoted above), but better than nothing.

            Comment


            • #7
              If they want you to be a fact witness, point out that you can read aloud your note as easily as they can.  Often, a phone call to the DA will clear things up.  If it does not, make sure the DA knows (and receives) your fee schedule for deposition/trial.  (More info can be found by searching the forum.)  Ultimately, yes, it is your civic duty.

              If they want your expert opinion, you should be paid.

              Comment


              • #8
                You do not have to render any expert advice in any way if you are not being paid. You may be called to enter facts but as someone said you could read your note and offer no other insight into your findings. In my experience, once the attorney knows this they will treat you better. They won't give you last minute notices and in the case of a private attorney they will pay for your time and opinion. I have usually not expected to be paid by th DAs office as long as they make it as painless as possible and they usually do. I consider it my civic duty to help them prosecute people like this.

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                • #9
                  See if they can do a deposition at a time convenient to you instead of going to court.

                  In circumstances above it sounds like you are not an expert witness, put perhaps.  I was once summoned and paid an expert witness fee for a patient I treated, but the questioning was more than just about my treatment etc.

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                  • #10




                    I have been recently called to a courthouse (more than 1 hour drive from my practice) to testify as an expert witness.  Without going into too much detail, an officer was punched and came to my office for treatment.  I am now being summoned to provide testimony.  My question is, shouldn’t I be compensated as an expert witness, as I have to drive 3 hours round trip and leave my practice for a day?  Or is this civic duty as it is the state as the prosecution?  Just wanted to see if anyone has experience.
                    Click to expand...


                    No no no no no. That is NOT how this works. You CANNOT be subpoenaed to be an expert witness, only a material witness. And they'll pay you $18 a day to do it. So you need to understand the difference between material and expert and when they ask you expert questions, you refuse to answer them unless they are willing to pay you your expert witness rate ($1000 an hour) in advance.

                    If you want to get out of being a material witness, you can tell the lawyer that you hate cops or that you'll just read the chart and don't remember anything else and maybe you can get out of it. But if you can't get out of it, you can't get out of it. It's a subpoena. But that doesn't mean you have to give them free expert witness testimony. I got suckered into doing this once and cut a ski day short and dressed up for it. Never again. I even forgot to pick up my $18 on the way out.
                    Helping those who wear the white coat get a fair shake on Wall Street since 2011

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                    • #11
                      Jim is correct to point out that there is a huge difference between treating MD and expert witness in a med mal trial. We are talking about treating MD.

                      My take:

                      1. Criminal case (e.g. sexual assault, child abuse): testify for free. Would be churlish to charge

                      2. Criminal case like battery between 2 private people I treat like a personal injury case.

                      3. Something like an assault on a cop or a hospital worker I would probably do for free.

                      4. Personal injury case (most common): the first time you are asked to do this, do it for a nominal fee like $250. use the experience to get a deposition under your belt. it isn't like being deposed in a suit you are named in but the rhythm is similar, you get used to sitting there and having people try to get you to say things you aren't really trying to say. offer to take your lawyer out for lunch and ask for feedback and tips. then read a book about med mal. after that first time i charge very aggressive rates and very aggressive terms because i don't think it's my job to help settle these kinds of things. draft a letter (PM me if you want a copy of mine) that indicates a. a high hourly rate, b. a minimum number of hours (at least 3), and c. insistence on prepayment before the dep. that will either get them to leave you alone or to pony up for your time. the other critical thing is to indicate clearly that if they change the dep on you last minute you will be keeping the fees and assessing new ones. what happens is that you will rearrange your schedule and tell your moonlighting gig you can't pick up that shift and then you'll get an email at 8am that morning saying the dep has been cancelled. you have a sacred obligation to care for your patients, you don't have a sacred or ethical obligation to help them sue WalMart bc they fell in the parking lot. you may get nasty grams from an attorney but remember that it isn't a crime to charge more for a dep than an attorney is willing to pay. if they say they will get a court order to compel your testimony i usually tell them to go right ahead. haven't had one issued though. at that point you do have to comply.


                      I have a fairly aggressive take on this b/c I generally don't want to do these. Like I said PM me if you want my letter and fee schedule.

                      One thing one of my attendings in residency did was write stuff on charts like "pt's reported complaints are far out of proportion to mech of injury, i suspect they have a desire to pursue legal action." that'll keep you out of a dep but i'm not sure i would recommend that approach!

                      Comment


                      • #12




                        If they want you to be a fact witness, point out that you can read aloud your note as easily as they can.  Often, a phone call to the DA will clear things up.  If it does not, make sure the DA knows (and receives) your fee schedule for deposition/trial.  (More info can be found by searching the forum.)  Ultimately, yes, it is your civic duty.

                        If they want your expert opinion, you should be paid.
                        Click to expand...


                        Agree with G.

                        This is how attorneys try to get experts for free.  They subpoena them as a fact witness and scare them into showing up.  They then pummel them with expert questions and expect answers for free.  If they haul you down as a fact witness you will respond that you "have no opinion" about any expert question.  If you tell them ahead of time you will be a "hostile witness" they will usually cough up the cash to pay you for your time.  You get what you negotiate.

                        Comment


                        • #13







                          I have been recently called to a courthouse (more than 1 hour drive from my practice) to testify as an expert witness.  Without going into too much detail, an officer was punched and came to my office for treatment.  I am now being summoned to provide testimony.  My question is, shouldn’t I be compensated as an expert witness, as I have to drive 3 hours round trip and leave my practice for a day?  Or is this civic duty as it is the state as the prosecution?  Just wanted to see if anyone has experience.
                          Click to expand…


                          No no no no no. That is NOT how this works. You CANNOT be subpoenaed to be an expert witness, only a material witness. And they’ll pay you $18 a day to do it. So you need to understand the difference between material and expert and when they ask you expert questions, you refuse to answer them unless they are willing to pay you your expert witness rate ($1000 an hour) in advance.

                          If you want to get out of being a material witness, you can tell the lawyer that you hate cops or that you’ll just read the chart and don’t remember anything else and maybe you can get out of it. But if you can’t get out of it, you can’t get out of it. It’s a subpoena. But that doesn’t mean you have to give them free expert witness testimony. I got suckered into doing this once and cut a ski day short and dressed up for it. Never again. I even forgot to pick up my $18 on the way out.
                          Click to expand...


                          Sorry you got tricked this way!  Nice of you to dress up when giving away free advice.    :?

                           

                          Comment


                          • #14




                            This is really helpful, I am going to ask the attorney if I am an expert or a fact witness.  I assume it is more of a fact witness, and to the attorney’s credit they are trying to make it as easy on me as possible.  Still what a huge inconvenience.
                            Click to expand...


                            If you're a treating physician youre a fact witness, not an expert and you dont have a choice. Obviously as others pointed out, you just keep it to a minimum and dont offer any opinions. No lawyer with half a mornings google searching should allow this anyway, no matter what side you're on.

                            Comment


                            • #15




                              Jim is correct to point out that there is a huge difference between treating MD and expert witness in a med mal trial. We are talking about treating MD.

                              My take:

                              1. Criminal case (e.g. sexual assault, child abuse): testify for free. Would be churlish to charge

                              2. Criminal case like battery between 2 private people I treat like a personal injury case.

                              3. Something like an assault on a cop or a hospital worker I would probably do for free.

                              4. Personal injury case (most common): the first time you are asked to do this, do it for a nominal fee like $250. use the experience to get a deposition under your belt. it isn’t like being deposed in a suit you are named in but the rhythm is similar, you get used to sitting there and having people try to get you to say things you aren’t really trying to say. offer to take your lawyer out for lunch and ask for feedback and tips. then read a book about med mal. after that first time i charge very aggressive rates and very aggressive terms because i don’t think it’s my job to help settle these kinds of things. draft a letter (PM me if you want a copy of mine) that indicates a. a high hourly rate, b. a minimum number of hours (at least 3), and c. insistence on prepayment before the dep. that will either get them to leave you alone or to pony up for your time. the other critical thing is to indicate clearly that if they change the dep on you last minute you will be keeping the fees and assessing new ones. what happens is that you will rearrange your schedule and tell your moonlighting gig you can’t pick up that shift and then you’ll get an email at 8am that morning saying the dep has been cancelled. you have a sacred obligation to care for your patients, you don’t have a sacred or ethical obligation to help them sue WalMart bc they fell in the parking lot. you may get nasty grams from an attorney but remember that it isn’t a crime to charge more for a dep than an attorney is willing to pay. if they say they will get a court order to compel your testimony i usually tell them to go right ahead. haven’t had one issued though. at that point you do have to comply.


                              I have a fairly aggressive take on this b/c I generally don’t want to do these. Like I said PM me if you want my letter and fee schedule.

                              One thing one of my attendings in residency did was write stuff on charts like “pt’s reported complaints are far out of proportion to mech of injury, i suspect they have a desire to pursue legal action.” that’ll keep you out of a dep but i’m not sure i would recommend that approach!
                              Click to expand...


                              Thanks,

                              I am a fact witness.  I am along the same lines that I want to do it as it is an assault on an officer doing his job.  I wish I would have known more about the process earlier because I think I could have taken a hard line in requesting a local deposition.  If the court house was local it would not be a problem or disruption.  Good to know for the future, thanks for everyone's advice.

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