Medical Expert Witness

December 19, 2018

As mergers and consolidations in healthcare continue, we at the Doctors Insurance Agency are finding that our physicians, who are educated, credentialed, experienced, and often fiercely intellectually independent, are looking for gigs. Whether they are millennials, baby boomers, or somewhere in between, doctors are finding opportunities outside of their conventional medical groups. One of those opportunities is serving as a medical expert witness. It can be interesting, challenging and remunerative. It also requires separate insurance.

The median hourly fee for file review/preparation for all medical expert witnesses is $350 (43% higher than for non-medical experts). The median testimony hourly fee for medical expert witnesses is $500/hour. The median testimony hourly fee for non-medical expert witnesses is $275/hour.

According to Federal Rule of Evidence 702, expert witnesses must have “knowledge, skill, experience, training, or education” which will “help the trier of fact to understand the evidence or to determine a fact in issue.” Under this standard, most adults could probably qualify as an expert witness on something.

In order to qualify as a successful and effective medical expert witness, it must be demonstrated that you have a very specific detailed understanding of the issue at hand, as well as an affable, articulate, clear, and non-condescending way of explaining that understanding.

I have had conversations with executive-level claims managers working for medical malpractice companies and defense counsel. They are very particular when it comes to the sensitive and serious matter of defending a physician’s reputation and finding appropriate and fair solutions.

This is not an entertainment production. It’s a professional process in the courtroom, under sworn oath. There are helpful resources to guide physicians who would like to work as an expert witness. The American Association of Medical Expert Witnesses has posted on their website the Code of Medical Ethics Opinion 9.7.1.

Medical evidence is critical in a variety of legal and administrative proceedings. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice.

Whenever physicians serve as witnesses they must:

(a) Accurately represent their qualifications.

(b) Testify honestly.

(c) Not allow their testimony to be influenced by financial compensation. Physicians must not accept compensation that is contingent on the outcome of litigation.

Established and experienced medical expert witnesses are aware of this code and they have demonstrated a history of fair testimony, theoretically without regard to the outcome. They’re called upon for expressions of fact and to clarify the complex medical issues for the judge and jurors.

Medical doctors who serve as medical expert witness are not immune from being named in a malpractice claim. As an operating room nurse said, once you enter the surgical arena it is like entering the saltwater: you are part of a food chain that often results in broad, far-reaching lawsuits naming everyone from the organization to the medical assistant. Similarly, medical expert witnesses can be accused of presenting an intentionally-biased opinion which materially changes the outcome, causing either defamation or libel to the physician’s reputation.

Professional liability insurance is affordable and intuitively logical. In fact, the policies look very similar to your clinical medical malpractice policy. The difference is that bodily injury claims resulting from alleged acts of omission or commission in the practice of medicine trigger medical malpractice policies, whereas consultations trigger the claims for these policies. They are written on different forms and they’re guided by different legal contract language. Medical malpractice underwriters understand this world to be as different as apples and oranges.

The coverage looks similar as a division or syndicate of Lloyd’s of London provides innovative affordable coverage. The policies are written to protect healthcare consultants providing expert witness services, independent medical reviews, and workers’ compensation reviews.

The underwriting is fairly simple, just as if you were applying for a separate medical clinical professional liability policy. The underwriters ask for proof of insurance for that other work to ensure that this policy is insulated and wrapped specifically around this expert witness work. The premium can be higher than $5,000 per year if you do this work full-time and generate six-figure revenue; however, most of these policies are issued for an annual premium under $2,000.

The policies generally have the following features:

  • Limits up to $1M/$3M available with NetGuard® Plus Cyber Liability sublimit
  • Separate Defense Costs Limit available by endorsement
  • First Dollar Defense coverage available by endorsement
  • Full prior acts coverage included

The Doctors Insurance Agency works every day to manage, monitor, advocate, and negotiate for over 3000 medical doctors insured nationally with the top insurance carriers and creative risk retention groups for the right practice protocol.