Getting a subpoena: What is an expert witness?

Aug 31, 10
Getting a subpoena: What is an expert witness?

Gavel

Well, it’s an inevitable part of working in an Emergency Department. I got a subpoena recently and now have to go in to testify on a trauma patient. I’ve gotten a few subpoenas before on trauma patients, but fortunately most cases were settled out of court.

First of all, I think it’s an ethical responsibility of emergency physicians to describe what we saw and did in the care of the injured patient in the legal system. However, I have found that the few lawyers I have interacted with slowly expand their scope of questions to cover things NOT in the medical chart. Has this happened to anyone else? They essentially start to ask me things which an “expert witness” should answer. Expert witnesses receive expert witness fees.

  • “What is a typical expected course for…”
  • “Do patients with this type of injury usually have pain for so long?”
  • “What do you think about…”
  • “Can you describe the nature/ cause/ definition of…”
  • “What’s the prognosis for…”

Actually ACEP has created Expert Witness Guidelines.

So I read more about our rights as emergency physicians when we get subpoenaed to testify for a patient. We are supposed to just testify about the facts on the medical chart. No opinions. If we start giving opinions, we are essentially giving expert witness testimony.

California Medical Association (CMA)

Interestingly, the CMA has a recommendation on this: If asked to give expert opinion, the physician should ask if s/he is being asked for their expert opinion. If so, that they would like to receive expert witness fees. In 1995, the California legislature passed bill AB1204 that ensures a treating physician expert fee payment if asked for a medical opinion. This is becoming increasingly true in many other states.

Even better, there is a great template letter (thanks to Dr. Clement Yeh for telling me about it) that you can preemptively mail the lawyers who sent you a subpoena. It basically says that you would be happy to testify what’s on the medical chart and ONLY on the chart. If they want expert opinion, you should be treated as an expert witness with “x” number of dollars/hour recompensation. It’s pretty hard-core, but I think it averts many misunderstandings and potentially can you save a lot of time. All the time in court and preparing for the case takes you away from work.

Wish I had this earlier.

Template (download here)

Dear {name},
 
I was recently subpoenaed by your office. In the past, there have been several incidences where there has been a misunderstanding whether attorneys are requesting factual or expert witness testimony. In the event, you ask me to provide any response or responses that calls for an opinion or medical conclusion, that will be considered to be expert witness testimony. Receipt of this letter will confer your acknowledgement that in the event you request expert witness testimony, you and/or your agency will be responsible for bills for my time. As a courtesy, I am sending my fee schedule for your review.

My fee is $___ an hour for consultation and/or expert testimony. Expert services include review of records, telephone and or office conferences with attorney(s) or other relevant individuals, and preparation for deposition and trial if indicated. The minimum fee bill will be $____.

As is standard, all reasonable expenses incurred will be billed to your agency or firm. If travel is necessary, travel time will be billed at $___ per hour. If testimony is required the following charges apply. If I am called to testify in the morning, I assume that testimony will involve a minimum of eight hours, and you will be billed for eight hours at $___ per hour. If I am called in the afternoon, I assume that testimony will involve a minimum of four hours and you will be billed for four hours at $___ per hour. If meetings or trials are subsequently canceled on short notice your agency or firm may be billed for the time scheduled.

Author information

Michelle Lin, MD

ALiEM Founder and CEO
Professor and Digital Innovation Lab Director
Department of Emergency Medicine
University of California, San Francisco

The post Getting a subpoena: What is an expert witness? appeared first on ALiEM.

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