When Attorneys Seek Your Medical Expertise: The Physician as Expert Witness
By David E. Drake
My very first exposure to lawyers and the courtroom was during the first year of my psychiatry residency when I had to go to court for a commitment hearing of a very paranoid and delusional male patient in the state hospital where I was assigned. The young man’s attorney was the brother of a local physician who I knew and was always very friendly to me when he came to visit his client, my patient. When it came to the hearing, I was put on the stand and grilled by this formerly friendly attorney for a full hour – asked about the limited amount of time I saw his client each day and of anything else he could pull up to make a case for his client to be out of the hospital. I made the novice error of taking it all very personally and wanted to stand my ground with this attorney once I got off the stand. At the end of the court proceeding, my patient was returned to the hospital for further treatment and his attorney was suddenly all handshakes and smiles with me again. I didn’t get it – that this was advocacy for his client and that it was nothing personal.
In yet another early exposure to the court room situation in a mock trial setting as a psychiatry resident at the Menninger Clinic,I naively volunteered as the psychiatric expert witness on the stand, while a former Marine Corps drill sergeant and current law student at Washburn University gave me my first reality check that I was not in a familiar or comfortable setting. The young soon-to-be graduating attorney came close to the mock witness stand and seemed intent on getting in my face – my memory of it now! – pointing out all the deficits in my testimony. I was like a puppy who had been humiliated – my tail between my legs as I got off the stand. Later, our mutual supervisors, from psychiatry and law, evaluated our respective performances – while with our classmates we watched the taped sequence on video. I was told not to take such an inquisition personally – that I was getting too hot under the collar – and indeed I wanted to reach out to strangle the former drill sergeant turned law student. It was a valuable lesson and one I have never forgotten.
Law has been a part of my family for generations. I am the grandson of a former district attorney in Denver, Colorado during the turbulent days of the Ku Klux Klan in the late teens and early 20’s of the last century. An uncle was an attorney and judge and the woman I married went to law school at a later age just 13 years ago when our family moved from Albuquerque to Des Moines, when I took up at academic position at Des Moines University. Law is also a career I considered for myself, but the lure of medicine and growing up in my immediate family with a father and brother who both became psychiatrists was too much of an allure to stray from that path.
Still – working with attorneys and entering the milieu of a deposition or court room to testify is an environment that is nothing close to the practice of medicine – in any specialty. It is an adversarial process – with each side having its attorney to present their case and respective experts, where that applies. Over the years, I’ve had the opportunity to serve as an expert witness for the US Attorney’s office, a federal public defender, a private attorney in a potential malpractice case for the defense to see what the physician might be up against in court, for an attorney for a civil case against a physician who admitted to having had sex with a patient who was now claiming damages and an expert witness was needed to confirm whether the former patient suffered damages and how much, and more recently for two family law attorneys in cases involving child visitation and re-opening a divorce decree. All of the cases have proved interesting and challenging. I have been surprised how I have enjoyed reviewing records – and often times you may have several boxes of notes from various physicians and providers to review.
In deciding to take on a case, I first want to make sure I have no conflicts of interest with any of the parties involved. Typically I am asked by an attorney to review pertinent records after the attorney tells me what it is they are wanting me to address. I will call the attorney after the review is completed and give my opinion on the questions raised – all before any formal report is written. If the attorney finds my opinion favorable to his/her client, the attorney will usually next ask me to write up the report and send them a rough draft for their review. Then some back and forth communications occur before a final version is completed with my name on it.
If a case is going to trial and my testimony is needed – either in a deposition or in the court room – I will talk to the attorney about what kinds of questions I should expect from the other side and also talk with the attorney who has hired my time about what he/she might expect. Through it all I am clear that I am charging for my time and not for my testimony! I see my role as educational – sharing information I have read, possibly researched, and also most directly from my professional experience. My c.v. and any professional writings I have published may all come into question. Having professional memberships and fellow status, along with academic credentials, can certainly be a plus. It is easy to fall into the trap of stating more than you mean to say or know and the opposing side may come at you with questions like “Isn’t it possible……?” Obviously most things may be ‘possible’ but some are also extremely unlikely. Fortunately an expert witness is not limited to ‘yes’ or ‘no’ answers and is allowed to expand on questions that are posed to you. It is wise to not say too much but to keep one’s response simple and clear.
How does one get referrals from attorneys? For one, you can let your colleagues who currently do such work know that you would like to get involved in legal work. Some will gladly refer attorneys to you if they themselves have a conflict of interest or are just too busy.
Legal work can be interesting and challenging and a good change from seeing patients all day. It also pays well. One typically charges for any time reviewing records, talking on the phone, preparing reports, travel time to depositions or court proceedings, waiting time, and testimony time. I would check with others in your specialty in your own community to see what the going rate is. Some physicians charge a different rate for each of these different services while some like myself just charge one flat rate as my hourly fee.
A local physician gave this advice for physicians getting involved as an expert witness – “Tell the truth….always.”
David E. Drake, D.O., FACN, DFAPA, Clinical Professor of Psychiatry at Des Moines University, has a solo private practice in Des Moines where he works with individuals – of all ages, couples, and families – providing psychotherapy/consultation regarding relationship challenges.He also serves as an occasional expert witness for local attorneys. He can be reached at or 515.288.8000.