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
ddrakedo1@qwest.net or 515.288.8000.