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Request payment for subpoena?

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  • Request payment for subpoena?

    Curious.  For doctors who are subpoenaed to testify, how many request payment for time?  What is the success rate of this?

    Note if applicable, it is not a criminal investigation, but seems to be a patient suing an employer over a work related injury and was seen in the ED for evaluation.


    Have heard docs request payment for time as a witness when receiving the subpoena.  Anyone have any insight or references on this topic?

  • #2
    We have a form letter from our group.  As I recall, for depositions we charge something like $400/hr, minimum of 1 hr, two weeks advance notice, fee forfeit if schedule changed, etc.  Most attorneys don't bat an eye at this; they certainly don't work for free.  The last time I arrived for a civil deposition, the attorney had a check book out asking me to confirm the spelling of my name.

    However, sometimes they are just trolling for free advice.  I send them our fee schedule and tell them I'd be happy to explain the medical terminology in my note, but if they even hint at deposition/trial that I provide an expert opinion, the fee schedule applies retroactively from when I walked in the door.  These folks don't call back.



    • #3
      There are two different situations in which you are asked to testify, and each is treated differently.

      Fact witness: you are required to present as a witness of facts, e.g. regarding someone's treatment because you were the evaluating/treating doc. In this situation you should give your fee schedule, but you might be paid less or nothing at all. You just have to do it. However, what you do is very limited. I would literally read from the chart for any questions. Anything outside of the documented eval in the ED by you of this patient should be answered with something like, "that was not part of the evaluation." Anything relevant should be answered with something like, "let me find that in the record and read it for you."

      Expert witness: this is something you choose to do. You are offering your expert opinion, and you have the right to be compensated appropriately. Look around / ask around for fee schedules. The fee schedule here should take into account any money you will lose by not seeing patients / disruption to your schedule, etc.

      Did you actually get a subpoena? Sometimes this is a "threat" but if one side of the case wants you to testify, even as a fact witness, on their behalf, it's in their interest to be nice to you, not subpoena you, work with your schedule, and compensate you. If not you could respond pretty sourly and just read out of the chart in a monotone voice.


      • #4
        I think our standard is somewhere around $300/hr.


        • #5
          You can't do this while on shift. You'll have to take the day off even to give an hour. So I'd charge what you make in a day in the ED. Unless you actually want to do it, then I'd cap it at $1000 an hour or less.


          They can only subpoena you to be a fact witness, not an expert witness, but they'll try. I made that mistake.
          Helping those who wear the white coat get a fair shake on Wall Street since 2011


          • #6
            However even as a fact witness, subpoena is very, very rare. No one wants to bring a pissed of witness onto the stand in a civil case. They are probably maneuvering to get a cheap/free expert witness without paying for one.

            In many such cases I have heard of the lawyer, after being quoted a fee schedule, deciding that sending copies of medical records will be enough after all.


            • #7
              I once walked into a depo about a pregnant woman injured in a car wreck and said sorry I can't do this depo unless you agree not to sue me on another case I had received a nasty letter from another lawyer in the same plaintiff firm.  I was never sued. That was plenty of payment


              • #8

                You can’t do this while on shift. You’ll have to take the day off even to give an hour. So I’d charge what you make in a day in the ED. Unless you actually want to do it, then I’d cap it at $1000 an hour or less.


                They can only subpoena you to be a fact witness, not an expert witness, but they’ll try. I made that mistake.
                Click to expand...

                This.  I got subpoena's as a fellow in a criminal case.  It was supposedly as a "fact witness", but ended up essentially being expert witness testimony.  I had to juggle my schedule 3 times (case kept getting continued).  When I got on the stand, the attorney started asking essentially all expert witness and opinion based questions.  I didn't know any better, so I just answered.  It wasn't a very fun experience.  After I spoke with a partner (MD/JD), I found this is a fairly common, if slightly underhanded practice.  I developed a rudimentary fee schedule, but haven't been asked again so far (fingers crossed).