by Robyn Ayres

If you ever find yourself named in a malpractice suit or even named in a Board complaint, you’ll likely learn about the role of expert witnesses. In malpractice cases, before a case even gets going, the patient’s lawyer has to have obtained an opinion from a physician in the same or a related field of practice who believes that you breached the standard of care (i.e., that you acted unreasonably). Your lawyer will begin the process of defending you by engaging experts in your field to review the care at issue and (hopefully) offer support for your actions. Expert witnesses make a huge difference in the success of a case.

For that reason, I encourage all physicians to consider doing expert work. There is a well-known health care facility out west that does not permit its physicians to do any expert work. Of course, their physicians get sued for malpractice too, just like their colleagues, and they rely on expert witnesses from outside facilities to support their care. Yet, they are not allowed to offer support for others. It’s ironic and frustrating.

So, if you decide to do expert work – and maybe you already have – here are just a few tips to keep in mind. First, be realistic about fees. Yes, we understand that you have a full practice, and expert work takes up additional time that you do not have, but remember that malpractice cases, including the expert fees, are paid for by insurance companies. Enough said there. Consider taking legitimate cases for both sides. As a malpractice defense attorney, I have a soft spot for experts who tell me that they only take defense cases, but the truth of the matter is, that fact can hurt us down the road at a deposition or trial when it’s spun to the jury that the expert is biased entirely towards physicians. Doing work for both sides also encourages the medical community to self-regulate. Also, remember that expert work is about opinions. Every now and then I talk to a physician who is on the fence about being an expert witness, often because he/she is reluctant to “go up against another physician”. You are giving your opinion, based on your education and experience, about whether the conduct at issue is reasonable. There is no right or wrong answer. It’s that simple. More likely than not, you will never even see the expert on the other side.

Finally, stick with the case. Don’t just do a cursory initial review and then assume that it’s over. The wheels of justice turn slowly. If you can support the care at issue, be willing to do so at a deposition and at a trial that might be many months down the road. You might surprise yourself and actually enjoy trial testimony. Many physicians find it interesting to be able to teach (and persuade!) jurors about a particular topic. You’ll see that it’s really not like on TV!

If you have questions about being an expert witness in a malpractice suit, please contact Robyn Ayres (804) 346-3340, or rayres@goodmanallen.com.

This article originally published in the Fall 2020 issue of Hampton Roads Physician.