The Whole Truth
It can be lucrative and exciting, but being an
expert witness isn't always easy.
expert witness isn't always easy.
It looks glamorous on our television screens each week: Physicians in a seat of authority in the courtroom, pointing the finger at the
bad guy in a calm, cool style. They are Matlock’s right-hand men and women, Arthur Branch’s buddies. But in real-life courtrooms from New York City to Atlanta, Las Vegas
to Miami, the drama surrounding expert witness services is tame—until the physician exits the courthouse doors.
When it comes to taking the stand, the American Medical Association is in favor
of it, and actually encourages members to serve as impartial expert witnesses.
The AMA is, however, on the record in favor of medical associations punishing
those physicians who violate pre-set ethical standards. In a nutshell, it
considers expert witness activities to be the same as practicing medicine, so
what you say on the stand is subject to peer review. Individual medical
societies put out statements using different words, but they boil down to
similar sentiments.
And just like that, the topic hits treacherous waters.
Yet it was a simple decision for John Lavorgna, MD, a retired orthopedic surgeon
in San Francisco, to jump into the business. Lavorgna now works for Weitz
Medical Management, a firm that liaisons between physicians and referring
attorneys in that city. His first partner back in the 1970s did workers
compensation and civil litigation evaluations and offered Lavorgna the
overflow. “It’s an entirely different discipline from the scientific background of
orthopedics,” he says.
Likewise, Michael Williams, MD, a neurologist, who is the medical director of
the LifeBridge Health Brain and Spine Institute in Baltimore, was approached
while on the faculty at Johns Hopkins to look over a case early in his career. “It wasn’t something deliberate, it was more of an accident,” he says. He says he’s done a handful of cases in his career.
“Probably the thing that attracts most physicians to it is the income, and it
usually pays more per hour than most physicians can earn seeing patients,” says Williams. “But doing so requires a real commitment and real work, and I
think while a number of physicians are prepared for that, there are also those
who don’t realize what they are getting into.”
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Just the facts, ma’am
Any physician could potentially provide value to the legal system, although
specialists tend to be more in demand than primary care doctors, in Lavorgna’s experience. Residents rarely have the experience yet to bring to a courtroom;
Dan Larriviere, MD, JD, an assistant professor of neurology at the University
of Virginia School of Medicine and an academic instructor at that university’s law school, recommends that physicians have at least five years of practice
under their belts before taking on this sideline. “And [speaking] as an attorney, physicians who do almost no clinical work any
more are less than ideal,” he says. “If it’s been 10 years since you’ve seen a patient, it might make your testimony a bit less credible.”
When Tekla Schlaich, the director of operations for American Medical Forensic
Specialists, Inc. (AMFS), a medical expert witness recruitment firm based in
Emeryville, California, scans a CV, she’s looking for fairly straightforward items: The candidate must be
board-certified and actively practicing. His medical-legal work should make up
no more than 3 to 5 percent of his overall income, lest he cross the line into
becoming a hired gun as opposed to a mainstream doctor who occasionally
testifies. And she wants to see a CV thick with lectures, papers, and grants in
full detail, not abbreviated versions. AMFS’s medical board approves who to keep in its stable—currently, the firm can draw on more than 8,500 physicians in 250 specialties
around the country.
Even after clearing these hurdles, however, presentation still plays a large
role in who will get work. For instance, the witness has to look professional in front of a judge and jury.
“Good communication is essential, which should come naturally to physicians who
are used to explaining medical information to their patients,” says Schlaich.
That’s certainly a good cornerstone, says Lavorgna, but there are important twists. “A good report backs up all conclusions, and that can be difficult simply because
physicians are not accustomed to justifying a conclusion regarding
recommendations for medical treatment. The legal world is different – you have to prove your points or come within reasonable probability or
certainty,” he says. For instance, it’s entirely possible the attorney on the other side of the courtroom will ask if
chances of an outcome are 49 percent or 51 percent, and the expert has to not
only make a decision but back that up.
“I sometimes say that the doctor has to take off the white coat in order to do
expert witness work,” Lavorgna says. “The goal of most of this work is to resolve cases. The better the physician is
at that, the more desirable he is as a witness.”
The other jolt for some physicians comes when a case requires them to dig into
disease causes. Say, for example, the situation involves rheumatoid arthritis.
The attorneys may focus on whether a particular trauma precipitated the
condition, and they will pick at what the odds are—with reasonable probability—that the two are connected. At that point, Lavorgna says, the physician must
change her mindset, and stop looking at the situation as though she is trying
to improve the patient’s condition “but as an expert witness who needs to focus closely on literature review,” he says.
Reviewing medical cases and histories is a large portion of an expert witness’s job, but doctors can’t simply choose the paperwork and skip the courtroom appearance. If they are
only willing to do this part of the job, they won’t get much work, even though lots of cases never get past the paperwork stage.
Should the case they’ve reviewed make it to trial, they’re strapped in for the duration of the ride. “It right may require much more time than many physicians anticipate,” says Williams, “because to do it right, you’ll review all the records sent to you, all of the scans, and formulate an
assessment, judgment, recommendation. The deposition can take many hours out of
a day.
“And if you misjudge the amount of time necessary for preparation and go into a
deposition incompletely prepared, then you end up not doing a very good job.
You can get caught on the stand with errors of self-contradiction,” Williams says.
That’s what happened to Julius Piver, MD, JD, who practices gynecology in Chevy
Chase, Maryland. He failed to follow up on a prior deposition and was nicked by it at trial. “It will never happen again,” he says.
That’s why Larriviere recommends physicians review all the evidence that relates to
medical information just before a trial starts. They should also have a
thorough understanding of the state of the science that existed when the case
arose and rehearse explaining that in a variety of ways.
But insiders agree there’s no pressure, direct or subtle, from the hiring attorney to draw specific
conclusions when a physician first receives a case. Payment is to compensate
for the time a doctor spends studying the evidence, not as a reward for the
answer. “Your real purpose is to identify the truth,” says Williams.
The numbers written on that paycheck are a bit shadier. In San Francisco, the
rate is up to $600 a hour, Lavorgna says, but he is expected to work reasonably
fast so he doesn’t run up an exorbitant bill. Schlaich says workers compensation hearings have a
fee schedule built into the labor code. “They are paid well for their time,” she says, “but it’s not something to retire on. It’s more to use for a trip or put toward the kids’ college tuition.” For one thing, the time intensity means most physicians can’t handle more than three or four cases a year, and the more they earn from this
angle, the less likely they are to be called back to the stand.
