You’ve Been Asked to Serve as an Expert Witness in a Medical Malpractice Case

What it really means in terms of your commitment of time and energy

You’ve been asked to review a chart and serve as an expert witness in a case of medical malpractice. Do you understand the full extent of the commitment of time and energy you’re being asked to make?

It can be tempting to think of it as easy money: you review a chart and give your expert opinion about the care rendered, and the sequelae of that care. But it doesn’t end there: at the very least, you will have to meet with the lawyer to understand what is being alleged. You will have to educate the attorney about the medicine and what constitutes negligence in a particular medical setting. I can tell you that nothing is more frustrating than sitting down with a physician who’s agreed to be an expert witness, but who has clearly not read the chart.

It’s essential to dedicate time for meetings, depositions, and other pre-trial preparations. A word about depositions: in a malpractice case, testifying is unlike what you may be familiar with from appearing as a treating physician. In those cases, you refer to the chart to explain what you found and what you did. However, when you testify as an expert in a malpractice case, the attorney’s job on the opposing side is to attack your opinion, and make a jury feel your position is unfounded and unjustifiable. For physicians who are unaccustomed to being challenged by someone outside the medical field, these depositions can be very uncomfortable.

Before the designation of expert witnesses, you can expect the attorney who hired you to barrage you with questions about the case. Many of those questions will begin with the phrase, “Can you say that…” or “In this particular instance, did the actions of the physician result in…”

You must be prepared to be available to state your opinion and explain your answer, a week or days, or even the day of the designation. These events happen at a very fast pace, and on a very strict deadline.

It’s true that many cases never go to trial, but it is disheartening to engage an expert who then clearly demonstrates no desire to testify at trial, or who aggressively attempts to avoid court. It can be even more stressful when an expert insinuates that it’s an inconvenience to rearrange schedules and patients. Most often, trial dates in Virginia are scheduled at least eight months in advance, so physicians and their offices should have ample notice of impending court dates.

Even then, it’s rarely possible to state definitively when an expert will be called to testify. Lawyers make every effort to accommodate their experts’ calendars, but in malpractice cases, which in Virginia can last a week to 10 days, flexibility is required on the part of every witness.

If you are asked to serve as an expert, be sure you understand the extent of the commitment. Your own attorney can be a vital resource in determining whether to agree.

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This article published in Hampton Roads Physician, Winter 2016

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