Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them
Executive Summary
Physicians are often called on to provide expert consultation and expert testimony in legal proceedings. Indeed, some physicians specialize in providing such forensic services. What many physicians do not realize is that there are unique risks associated with forensic work. This section discusses 10 of the biggest mistakes that create risk for forensic physicians.
Mistake 1 Failing to Have the Necessary Qualifications and Expertise
Physicians should not accept forensic employment as an expert consultant or an expert witness unless they have the education and other qualifications in the subject matter on which they wish to be retained to perform expert services. (Council on Ethical and Judicial Affairs, American Medical Association, Current Opinions, Policy E-9.07.) A physician who overstates his or her expertise is at risk of providing negligent or incompetent advice and having his or her testimony excluded under the stringent requirements for expert testimony found in cases such as Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L.Ed. 2d 469, 113 S.Ct. 2786 (1993); and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 143 L.Ed. 2d 119, S.Ct. 1167 (1999).
Action Step Physicians should offer expert consultation or testimony only in the areas in which they are board certified or have extensive and recognized expertise.
Mistake 2 Failing to Define the Scope of Work
Physician experts should be retained by the attorney to whom they will report and for whom they will potentially testify. The work to be performed should be defined in consultation with and at the direction of the attorney. This creates a means whereby the physician’s opinions communicated to the attorney may be protected by the attorney work product doctrine in the event the attorney chooses not to use the physician as an expert witness.
Action Step Physicians should be retained by an attorney when performing forensic work and should perform the work pursuant to instructions from the attorney.
Mistake 3 Failing to Discern Whether They Are Retained as a Witness or as a Consultant
A common mistake attorneys make when retaining expert consultants is to retain the consultant as an expert witness before they know what opinion the forensic consultant will render. This means that the forensic consultant’s opinion, if it is not favorable, may be disclosed to the opposing party. The proper way to handle this issue is for the forensic consultant to be retained as a consultant with the attorney having the option of using the consultant as an expert witness if the consultant’s opinion supports the attorney’s case. If that does not occur, the consultant should not be designated as a witness and should be admonished to maintain the confidentiality of the information reviewed and the opinion rendered to the attorney. Such confidential information would be protected by the attorney work product doctrine.
Action Step When retained, the physician should be retained as an expert consultant with the attorney having the option of converting the physician to an expert witness.
Mistake 4 Failing to Prepare for Attack Based on a Treating Relationship
If the treating physician is the primary expert witness, there will be a tendency by the opposing party to blame the patient’s damaged condition on incompetent treatment by the treating physician expert witness. This tendency will subject the physician to attack and serve to undermine the credibility of the physician as a witness.
Action Step Physicians should be prepared for attacks when they testify for any patient who is in treatment with them. It is not advisable for a treating physician to be the primary expert witness for a patient who is being treated.
Mistake 5 Making Payment for Services Contingent on the Outcome of the Case
Services rendered for forensic work by a physician should be paid for based on an hourly rate or a flat fee and should not be contingent on the outcome of the case. (Council on Ethical and Judicial Affairs, American Medical Association, Current Opinions, Policy E-9.07.) Any contingent fee for forensic work subjects the forensic witness to a claim that his or her testimony is shaped by a direct financial interest in the recovery. Cross-examination on this point will undercut the credibility of the expert witness.
Action Step Physicians should not perform forensic work on a contingent fee basis.
Mistake 6 Failing to Have Counsel Sign a Written Fee Agreement
A physician performing forensic work should enter into a written contract for services with the attorney who is retaining the physician and may wish to have the contract reviewed by the physician’s own attorney. The contract should contain a specification of the fees to be charged and the terms of payment. The contract also should state that the attorney retaining the physician is responsible for evaluating the relevance and admissibility of the work performed by the physician and should disclose that there is no certainty that the physician’s opinions would be allowed into evidence in a lawsuit due to the discretion allowed to the trial court judge to exclude such evidence. Other terms of the contract should include that the physician is being retained initially as a consultant with the attorney having the option to convert the physician into an expert witness.
Action Step Physicians performing forensic work should enter into a written contract with the attorney who is retaining them and may wish to have the contract reviewed by their own attorney.
Mistake 7 Failing to Make Disclosures to the Person Being Examined
When a physician conducts a forensic examination of a party to a lawsuit, there should be disclosure to the person being examined that the physician is not diagnosing or treating that person as a patient and will be disclosing statements made during the examination as well as the results of the examination to third parties.
Action Step Physicians performing forensic examinations should disclose in writing to the person being examined that there is no physician-patient relationship and that statements made during the examination as well as the results of the examination will be disclosed to third parties. If possible, the person being examined should countersign the written disclosure to indicate the person is aware that he or she is not a patient.
Mistake 8 Failing to Inform Adverse Party About Lack of Confidentiality
A physician conducting a forensic examination must make clear to any adverse party being examined that statements made during the examination and the results of the examination will not be kept confidential and will be subject to disclosure to the persons retaining the physician and to disclosure in open court.
Action Step When a physician conducts a forensic examination of an adverse party, the adverse party should be informed in writing of the lack of confidentiality of statements made during the examination and of the results of the examination.
Mistake 9 Failing to Maintain Liability Insurance
A physician performing forensic work should purchase a liability insurance policy providing coverage for forensic work, including expert testimony, and for possible personal injury claims resulting from any forensic medical examination performed by the physician. Some malpractice insurance policies do not provide such coverage and care should be taken when performing forensic work to obtain liability insurance coverage for the forensic work.
Action Step Physicians who perform forensic work should purchase liability insurance that provides coverage for such work.
Mistake 10 Failing to Obtain a License to Perform Medical Work When a License Is Required to Perform Forensic Work
Some jurisdictions prohibit a physician from performing forensic work unless the physician is also licensed to practice medicine in that jurisdiction. Before entering into an agreement to perform forensic work in a jurisdiction other than where the physician is already licensed to practice medicine, the physician should determine whether he or she needs to obtain a license to practice medicine in order to be permitted to perform forensic work in the jurisdiction.
Action Step A physician performing forensic work should do so only in a jurisdiction where he or she is already licensed to practice medicine or which permits forensic work to be performed by a physician who is not licensed in that jurisdiction.
Conclusion
Physicians performing forensic work who follow the action steps listed in this section should be able to reduce the risks involved in such work and be better able to provide competent and professional forensic services.
Additional Resources
- L. Andrew, “Ethical Medical Expert Witness,” Journal of Medical Licensure and Discipline, Vol. 89, No. 3 (2003).
- Council on Ethical and Judicial Affairs, American Medical Association, Current Opinions (2004)
- R. Rosner (ed.), Principles and Practice of Forensic Psychiatry (Oxford University Press 2002)
Written by:
Daniel H. Willick, JD, PhD.
Peer reviewed by:
Thomas D. Long, JD
Download Free 646 Page E-book: The Biggest Legal Mistakes Physicians Make and How to Avoid Them