Expert witness 101: A peek behind the witness stand

As an Emergency Medicine Technician (EMT) during his college years, Edward Mallory, DO, was trained to assess a situation, identify the issues and respond in a way that yielded the best result.

Now, he applies those same skills as an expert medical witness: a physician whose skills, education and experience make them qualified to testify as a medical expert on specific health- and health care-related scenarios. Expert medical witnesses are typically practicing physicians who also see patients.

“I have a strong desire to help people,” says Dr. Mallory, who is also an attending physician in emergency medicine at Wuesthoff Hospital in Rockledge, Florida. “That is what drives my passion.”

Facts & figures

According to The Expert Institute, which matches clients with physicians, an expert medical witness charged an average hourly rate of $356 for initial review in 2017, $448 for depositions and $478 for courtroom testimony. Certain specialties, including neurology and plastic surgery, command higher fees, according to the 2017 Expert Witness Fee Report.

Dr. Mallory charges $400 per hour for chart review, phone consultation, writing an affidavit of merit, and depositions. If he appears in court, the fee is $6,000 for one day and $9,000 for two days. Fees are generally paid upfront by the client or by their attorney and are not paid from any monies, if any, awarded by the court.

Interested physicians should enjoy investigative work, Dr. Mallory says. “You need a sense of medical curiosity to be a good medical expert.”

The bulk of work can be done in off hours, in a manner that fits into an existing schedule.

Taking the case

It’s a good idea for physicians to examine proposed cases before deciding to take them on.

“I try to ascertain whether the case has merit,” psychiatrist Glenn Kalash, DO, says. “My interest is in being able to provide expert opinions above and beyond a general psychiatrist in matters where I believe I have had in-depth clinical experience.” Dr. Kalash is the chief of consultation-liaison psychiatry at Jamaica Hospital Medical Center in Queens, New York.

Dr. Kalash’s fellowship in forensic psychiatry provides the foundation for his expertise in matters related to the interface of law and mental health. The forensic psychiatry subspecialty may include psychiatric consultation on a wide variety of legal matters, including expert testimony, as well as clinical work with perpetrators and victims.

“In personal injury claims,” Dr. Kalash says, “I ascertain if there was or was not a psychological injury or that a psychiatric occurrence did or did not take place.”

Making the case

After a review of the case materials, the expert medical witness often prepares an affidavit of merit which alleges the causation between the physician’s actions and the patient’s injuries and the corresponding damages claimed by the patient.

In some jurisdictions, an affidavit of merit is required when a medical malpractice case is filed. In medical malpractices cases, an expert medical witness helps provide what is deemed as credible insight regarding the physician’s conduct and whether such conduct constitutes a violation of professional standards, and if so, whether that violation caused damages to the patient.

It’s a responsibility that Dr. Kalash takes seriously. “It is with my input that the judge and jury are able to be educated about the psychiatric matter at hand, and based upon my opinion, experience and the literature, come to an informed decision.”

What it takes to be an expert

Expert witnesses are subject to scrutiny related to the amount of cases they handle as compared to their normal patient workload. “The courts place more value on your opinion and testimony if you have a clinical practice, as they want to know that you are current with standards of care, diagnostic criteria and treatment protocols,” Dr. Kalash says.

Dr. Mallory, who has over 25 years of experience as a board-certified emergency medicine physician, agrees. “I am still a practicing physician. Most states require you to still be a practicing physician if you serve as an expert witness.”

Some states also require that the expert medical witness share the same specialty as the physician named in the complaint. Dr. Kalash says that an expert medical witness should be comfortable with their level of expertise and not overstep their abilities. “If a doctor in another specialty is being sued, there has to be a psychiatric component to that in order for me to take the case.”

Dr. Mallory has contributed to cases that do not involve emergency medicine, his specialty. “I always let the client know that I’m available to review the chart and write the affidavit so long as they understand that my expertise is not the same as the physician being sued.”

“I generally do a literature search,” Dr. Mallory says. “There are several physician sites that provide in-depth information. You can self-educate.”

When asked if he’s experienced any negativity from fellow physicians for testifying against a member of the profession, Dr. Kalash says, “I am able to formulate an opinion that I can sincerely justify. As an expert, you have to testify what you opine is correct.”

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