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Lots of physicians have side hustles. One type of side work uniquely suited to physicians is becoming an expert witness.
Imagine being paid to weigh in with a professional opinion in court, and even save another physician some heartburn and money by offering a second opinion of sorts that can get them out of a legal jam.
In today’s post, we examine why expert witnesses are often unsung heroes and how becoming one can be lucrative and satisfying for physicians.
If you’d like to learn more about becoming an expert witness, we are launching our course Excelling as a Medical Expert Witness for enrollment. Profits from the course will be added to Physician on FIRE’s medical student scholarship for exceptional and deserving students.
If you are a medical doctor and member of our Physicians on FIRE Facebook community, you can watch and listen in on our webinar
As specialized physicians in practice, building an expert witness practice has re-energized our careers and helped us put our medical and teaching skills to work in a new way. Jorge and I have become entrepreneurs and built businesses, including an online expert witness course that teaches clinicians to launch and develop their own expert witness practices.
Physicians often ask me if it’s wrong to testify against other physicians, and they are often surprised at the unexpected benefits of being an expert. In this post, I’ll tell you how you can do good and give back to the profession, even while doing work some consider “bad.”
Taking an Unbiased, Neutral Approach
Physicians looking to apply their clinical skills in a new way can find expert witness work to be a rewarding side gig, both financially and professionally.
As expert witnesses retained in over 150 cases, we have reviewed cases for both plaintiff and defense attorneys and we apply our knowledge, training, and experience objectively regardless of which side retains us.
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So when people ask us how we can testify against other doctors, our answer is that we’re not testifying against physicians.
Our focus is on the evidence and how decisions physicians made were reasonable based on what someone with similar skills and training would do under similar circumstances. This is one way to think about the “standard of care” without getting into legalese.
Why Working With the Plaintiff Can Be Frowned Upon
Physicians considering expert witness work occasionally encounter restrictions limiting their ability to serve as experts.
Hospital or practice policy may dictate that physicians may only be retained by defense counsel. Contracts may stipulate that a percentage of earnings from expert witness work is paid back to the employer. Physicians may be prohibited outright from serving as experts.
These policies and limitations do nothing to stop medical malpractice cases. Keeping good physicians from serving as experts only hurts your chances of finding a high-quality expert to review your potential malpractice case, but it does not prevent claims from being filed.
How the Defendant Can Benefit from Your Role With the Plaintiff
Preventing physicians from being retained by plaintiff attorneys will make it more difficult for attorneys to find reputable experts to do quality reviews of cases. Some cases may not proceed against a physician if an expert retained by a plaintiff’s attorney finds there was no deviation from the standard of care.
But many physicians will never know their expert colleague’s review actually saved them from a malpractice case because there’s no way to know it didn’t (almost) happen.
An Expert Can Be a Valuable Asset to a Hospital and Medical Practice
Experts who routinely review cases from both plaintiff and defense attorneys have a balanced perspective that helps them reduce risk in clinical practice and serve as a crucial resource for their practice or hospital employer.
Expert work requires knowledge of the local standard of care and a working knowledge of specialty society guidelines, medical literature, and other resources that are invaluable in daily clinical practice.
Experts can serve vital roles on hospital or practice committees, sharing knowledge and helping inform policy in a practical way that directly improves patient care. We are the clinicians you call to curbside consult a difficult case and you’d rather learn from others’ mistakes rather than risk making one on your own.
We help answer the tough questions from lawyers and translate doctor-speak to plain English when lawyers and juries need to understand our work from a layman’s perspective. Even when I find a doctor did nothing wrong and the plaintiff’s attorney concludes there is no case to pursue, my involvement provides the opportunity to help the patient understand their case better and find resolution even though they may not get their day in court.
There are Truly Bad Doctors Out There
Statistics often quote the risk of being sued as around 50%. This leads to a misunderstanding that physicians are basically facing a daily coin-flip risk of being sued; it either happens or it doesn’t.
That does not quite reflect the reality of malpractice risk. Up to 1 in 2 physicians (more toward 1 in 3 female physicians) may be sued over the course of a 50-year career. The odds of being sued in any one year are much lower. And who knows how many of us will complete a 50-year career given the dramatic change in most medical employment models these days?
A significant percentage of malpractice claims are made against the same physicians; some physicians will have multiple suits against them over the course of their careers. This may be because they practice in high liability specialties (i.e. neurosurgery, obstetrics), or they may be actually practicing bad medicine.
Loose or nonexistent supervision of opioid clinics, performing cosmetic-type procedures not within your specialty, or not staying current with new developments in your field may be examples of higher liability behavior.
Expert Work is not a Hobby; You are Paid for Your Time, Not Your Opinions
Since this work is done in your own free time, our hope is that physicians and other clinicians will pro-actively negotiate their employment contracts with a qualified attorney or other professional to help avoid having to pay back your employer a portion of their expert witness earnings.
With so many physicians having received pay cuts during the pandemic, it hardly seems fair to tax physicians on work done on their own time, usually at their own risk, and which serves such a vital role in the legal and medical communities. Physicians working as employees rather than practice owners likely face a career with reduced earning potential.
It appears unlikely that the declining physician reimbursement trend will reverse substantially, therefore it is imperative that physicians are not restricted from making money doing quality work in their time away from their daily (or nightly) clinical workplace.
Making More Money Outside Medicine May Be the Key to Keeping You In Medicine
Physicians who can achieve financial freedom by diversifying income from para-professional activities like expert witness work are much less likely to burn out and leave medicine.
By bringing our expertise to the legal field as expert witnesses, everyone benefits, including patients. We aim to teach a comprehensive how-to course to help physicians and other clinicians launch and build expert witness practices, and we’re dedicated to helping our students become the best experts they can be, for everyone’s benefit.
We encourage you to share this with practice and hospital leadership to advocate for the option to pursue expert witness work in whatever capacity helps you put your skills to work best for all.
For more information on our training that teaches physicians how to launch and build a successful expert witness business, stay tuned for our upcoming webinar. This online course could lead you on a quick path to earning $500 to $900 an hour, leveraging your medical knowledge and experience. Enrollment starts soon, so don’t miss out on your spot!
16 thoughts on “How to Be an Effective and Ethical Expert Witness”
This was my experience as well. I served as an economic expert witness rather than a medical one and was told the economists report is generally not controversial (much less than the medical report). That was not my experience at all in the few depositions I did. Turns out when the report is not controversial, the other side tries to make you appear unqualified, incompetent and will ask you to explain irrelevant complex topics just to make you appear foolish.
I am a well-published, experienced econ professor and living through those took me back to my dissertation defense with the added pressure that a large sum of money was on the line for both sides. The amount of sleep I lost before those was not worth the additional money at all. It’s a shame because I enjoyed writing the report and analyzing the damages.
It might be gender related because more than one lawyer who hired me said he had never seen such intense questioning over such standard answers.
@Jen, I’ve had that experience once or twice, but in general I’ve found attorneys to be highly professional and I have learned a lot from working with them. A deposition is designed to get your opinions on record in the event the case goes to trial.
I prepare students in my course by teaching them to expect tough questions and deal with them nondefensively. Some attorneys use a confrontational style but in the end if you are well-prepared and support your opinions well, it’s not a problem. Opposing counsel may question you to try and exclude you from the case, but that’s legal strategy to support their own side, not a personal attack.
With economics, you can keep the focus on the numbers. You can decide in advance not to take it personally if they get worked up – you’ll just do your job and they’ll do theirs. I have found this approach works very well for many other areas in my life, too – another benefit of expert work!
That’s true, but you still have to put up with it in the moment. I’ve found that the additional money was not enough to compensate the additional stress (which is partly due to my worrisome nature).
In some ways, the fact that my primary job (professor) is so stress-free made the experience even worse. Going from a stress of 0 to a stress of 1 felt like a huge jump. Maybe it’s not as big if your stress is a 6 and you go to a 7?
I got roped into being an expert against another physician( non boarded in his specialty) whom had injured someone by failing to follow standard safety protocols ( which I had discovered on reviewing the procedure). The patient was severely injured and I felt guilty that they shouldn’t have their day in court.
It should have been open and shut but the 3 hours of grilling, including about my personal life, employment choices etc were so unpleasant that I decided it wasn’t worth the money. They can ask questions from the point of view of any specialty, and have recent literature at hand. They can focus in on one page out of 700 you reviewed. You are stuck answering the best you can. The more money involved the better the lawyer will be at making you look like a fool. I had top 10 academic credentials college through residency and fellowship and multiple boards. And I was right. It didn’t matter.
It’s not for the faint of heart. I would never do it again. Granted I only did it once. But I suspect being a good expert witness takes a lot of practice, at someone else’s expense.
It also took me only one case as an expert to see how important it was to understand how to perform the work from a legal standpoint even though I knew the medicine involved.
Trial and error is expensive and frustrating, which is partly why I created this course. Knowing the nuts and bolts has made this work so professionally and personally satisfying for me, and I hope my post conveyed how it has also made me a better doctor.
We didn’t learn medicine in one day. But it’s powerful to develop new skills at any stage of our careers.
Hi Bob, thanks for your post about your experience. A little about me: I’m an attorney in North Carolina, I handle catastrophic personal injury cases for plaintiffs, and I do not do any medical malpractice work. I am glad to hear that you were willing to step up to the plate in that case but disheartened to read that some insurance defense lawyer ran you off. I know exactly the behavior you’re talking about, especially them cherry-picking one page out of 700… It’s awful. I hope you’ll consider going at it again. There are people out there whose cases depend on good medical testimony. Without it, the insurance companies and their lawyers will get over on them. This applies to both regular injury cases and med mal.
There are lots of people injured in car wrecks who need medical testimony to pursue their insurance claims and more often than not the treating physicians do a really poor job of testifying for their own patients. We usually have to pay $1000 an hour (or more) for their time and they still seem so unwilling to help their patient.
Think about how difficult insurance companies make it for you when you’re practicing medicine. Insurance companies make everything you do more difficult. They’re no different when they are defending a claim, and certainly no more fair.
This was my experience as well. I served as an economic expert witness rather than a medical one and was told the economists report is generally not controversial (much less than the medical report). That was not my experience at all in the few depositions I did. Turns out when the report is not controversial, the other side tries to make you appear unqualified, incompetent and will ask you to explain irrelevant complex topics just to make you appear foolish.
I am a well-published, experienced econ professor and living through those took me back to my dissertation defense with the added pressure that a large sum of money was on the line for both sides. The amount of sleep I lost before those was not worth the additional money at all. It’s a shame because I enjoyed writing the report and analyzing the damages.
It might be gender related because more than one lawyer who hired me said he had never seen such intense questioning over such standard answers.
@Jen, I’ve had that experience once or twice, but in general I’ve found attorneys to be highly professional and I have learned a lot from working with them. A deposition is designed to get your opinions on record in the event the case goes to trial.
I prepare students in my course by teaching them to expect tough questions and deal with them nondefensively. Some attorneys use a confrontational style but in the end if you are well-prepared and support your opinions well, it’s not a problem. Opposing counsel may question you to try and exclude you from the case, but that’s legal strategy to support their own side, not a personal attack.
With economics, you can keep the focus on the numbers. You can decide in advance not to take it personally if they get worked up – you’ll just do your job and they’ll do theirs. I have found this approach works very well for many other areas in my life, too – another benefit of expert work!
That’s true, but you still have to put up with it in the moment. I’ve found that the additional money was not enough to compensate the additional stress (which is partly due to my worrisome nature).
In some ways, the fact that my primary job (professor) is so stress-free made the experience even worse. Going from a stress of 0 to a stress of 1 felt like a huge jump. Maybe it’s not as big if your stress is a 6 and you go to a 7?
Drbob – I appreciate you posting your experience. I also considered doing this, but basically I’ve held back for the reasons you stated. This doesn’t at all seem like a way to decrease stress or burn out. Maybe some people can handle themselves in that type of environment well. I think being in that sort of environment and getting grilled and taken apart by an attorney is probably one of the least pleasant things that I can possibly imagine. This seems like a way to add stress, far more stressful than my clinical job.
It’s interesting to me how physicians feel the experience of serving as an expert witness is out of their control. As if the deposition or other usual legal activities happen without their active participation.
We as physicians do incredibly hard things in our jobs. We weigh the risks and benefits of our actions in the face of high stress situations where the #1 unknown is how the patient will respond to (or in spite of) our best efforts. We help patients and families through the most difficult moments of their lives.
Why would you think you cannot prepare for the usual legal processes in a medical malpractice suit where our role is to continue to teach others about medicine? To help sort out the shades of gray into clarity?
I assure you that you can succeed and thrive as an expert witness. I was sued and then my defense attorney encouraged me to serve as an expert once my case was resolved. I have now been retained in almost 170 cases and the work has re-energized my career and made me a better doctor. That’s why I love teaching fellow clinicians to do the same.
It’s interesting to me how physicians feel the experience of serving as an expert witness is out of their control. As if the deposition or other usual legal activities happen without their active participation.
We as physicians do incredibly hard things in our jobs. We weigh the risks and benefits of our actions in the face of high stress situations where the #1 unknown is how the patient will respond to (or in spite of) our best efforts. We help patients and families through the most difficult moments of their lives.
Why would you think you cannot prepare for the usual legal processes in a medical malpractice suit where our role is to continue to teach others about medicine? To help sort out the shades of gray into clarity?
I assure you that you can succeed and thrive as an expert witness. I was sued and then my defense attorney encouraged me to serve as an expert once my case was resolved. I have now been retained in almost 170 cases and the work has re-energized my career and made me a better doctor. That’s why I love teaching fellow clinicians to do the same.
I served as the company representative and as a witness for our company in a nearly $100 Million lawsuit which we won hands down in a jury trial. I found it fascinating and since I was about to retire I let the lawyers we used know I was interested is doing expert witness work after I retired. I had one very extensive case not long after I retired. I worked on it off and on for about a year and it was very lucrative and very mentally stimulating. I’m a licensed professional engineer and ran a large chemical complex during my career and while there weren’t many cases that needed that kind of expertise this one fit me very well. I later switched to doing expert witnessing in a regulatory field which I still do six years into my retirement. I do consider it a hobby because it is very easy compared to my former career and very entertaining. It is not for everyone and some fields are much more complex than others. There is nothing quite like being deposed for seven straight hours by very hostile lawyers for your opponents side.
Steveark, this is a great example of how experts can come from many fields including engineering. I think my favorite example of a non-physician expert witness is one guy who travels the country evaluating the structural integrity and safety of haunted houses and other tourist activities in October’s Halloween season!
Typically, physicians must still be in clinical practice to qualify as an expert, but it’s fairly easy to meet most state requirements working part-time (or part-part-time!). Expert work can help physicians transition to part-time employment by offering a source of additional income.
Thanks for adding your view and expertise!
It looks like a good course and I’m glad it’s now available for enrollment. However, when I tried to take the course last month it was not possible, and signing up for notifications about the course just got me emails about travel hacking which I did not need. I understand there may be some advertising and sales benefits to limited enrollment periods, but I found this method frustrating and signed up for a course that was actually available.
Hi Eric, thanks for joining the waitlist early and for your comment. This course opens for live enrollment during specific times of the year only, including now – Aug 19-29, 2022. As POF also does on this site, I offer educational information to physicians who don’t ordinarily travel for business but may need to for expert depositions and trials. This is just a small component of this comprehensive how-to course, but one way you can make a side gig enhance your daily life, too. Becoming an expert involves learning some new skills, but mostly putting the ones to work you already know as a physician. Thanks!