Compensating the Expert Medical Malpractice Witness

We have all seen it on television - the expert doctor is testifying about severe and disfiguring injuries to the patient caused by the malpractice of another physician. On cross-examination, the expert is asked whether or not he has been paid to give this testimony. The jury gasps in shocked dismay when the answer is a sheepish "yes."

In the real world, we all know that expert witnesses are compensated for their time. But the way that compensation is handled and brought to the jury's attention can potentially affect the outcome of a medical malpractice trial.

Before the trial begins, the expert physician and the attorney should have a crystal clear understanding about the amount of the payment and who is responsible for that payment. Generally, it is considered unethical for a medical expert witness to agree to a payment based on the amount of the award. Under agreements between medical societies and bar associations in some states, it is the obligation of the attorney, not the client, to compensate the expert.

The rate of compensation depends on the medical specialty and the community. As a frame of reference, the expert who has a medical practice may look to be compensated for the amount of income lost during a half or whole day in court.

The attorney should prepare the testifying physician on how to handle questions on compensation. Many attorneys feel it is a good approach to bring up the issue with their own expert physician in order to get it before the jury in the most favorable light. Under no circumstances should the physician be reluctant to answer the question honestly if it is brought up on cross-examination. Hedging the question or withholding information from a jury can make the jury distrustful of the physician, thereby weakening the impact of his testimony throughout the trial.

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