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LEGAL EASE
‘Do I have to?’
and ‘How much?’
Part I of II
By George F. “Rick” Evans
I’ve heard these two questions so often over my career that I’ve
just got to use that hackneyed, old expression of, “If I had a dime
for every time X happened, I’d be a millionaire by now.” Maybe
that’s an overstatement, but it’s not far from the truth. I get these
two questions about once every week from some doctor, some place.
Let me try to put them to rest.
Exactly what are these two questions? The first one is the phone
call I routinely receive in which a doctor has been asked to testify.
Sometimes it’s a deposition. Sometimes it’s for a trial. Maybe it’s a
request that some attorney is making over the phone or by letter.
Or maybe the doctor has received a subpoena demanding he appear
at such-and-such a place and time to testify. The doctor wants to
know: “Do I really have to do this?”
The second question follows from the first. How much money,
if any at all, can the doctor charge for testifying? There are some
follow-up questions and practice pointers you may not have con-
sidered that I’ll also address. This is the first of a two-part article
intended to tackle these issues. Let’s begin with the first issue.
QUESTION ONE: DO I HAVE TO?
If you are somehow involved, even peripherally, in a legal dispute
between two or more people, the answer is usually yes, you have to
testify. Sorry, but there you have it. Let me give you an analogy.
If you were walking down the street and saw a car run a red light
and hit another car, like it or not, you’re an eyewitness to the event.
You can be required to come to court and tell the jury what you
saw. Just like a district attorney could call you to testify in a criminal absolutely nothing to do with the patient or the case, then you can’t
case if you happened to see a burglary or some other crime. You
can be subpoenaed to testify for any case as to what you saw or
heard. You’re an eyewitness.
Similarly, if you’re a treating physician of a person involved in a
legal dispute, you can typically be required to testify in that capacity.
Let me give you some examples. A person is hurt in an accident,
and you provide medical care. Your patient files a lawsuit concern-
ing those injuries which has the legal effect of waiving his right to
physician/patient confidentiality. Either his attorney or the defense
attorney could require you to testify about your care of the patient.
If you won’t do it voluntarily, they can drop a subpoena on you and
make you do it. You’re a medical eyewitness to an event relevant to
the lawsuit. You can be required to testify as to the patient’s condi-
tion, what your treatment was, how he’s doing now, and so forth.
30 San Antonio Medicine • May 2015
Or suppose you’ve been caring for a patient for years, and he’s in-
volved in a custody dispute as part of his divorce. If part of your care
involved treatment for addiction, mental illness or other issues per-
taining to his suitability to care for a minor child, you might be re-
quired to testify. I could go on with many examples but the point is
simple. You are like the guy who witnessed the car crash. Or the bur-
glary. As an eyewitness, you are uniquely positioned to help the jury
decide the case, and the law requires that you share that knowledge
with the jury whether you want to or not. The same principle applies
when you are the eyewitness to medical care you provided to a patient
if that care somehow is relevant to the legal dispute.
So, the short answer to, “Do I have to?” is yes, IF you are the
equivalent of a medical eyewitness to an issue of relevance to the
legal dispute.
Here’s a little caveat to subpoenas. They have an effective “range”
of no more than 150 miles from where you reside or where you’re
served. In other words, you can’t be required to travel more than
150 miles from where you live or where the subpoena is delivered
to you. A Houston attorney handling a Houston case can’t force
you to come to Houston to give a deposition about a patient you
treated. However, that same attorney could just drive over to San
Antonio and, using a subpoena, make you testify in San Antonio.
You haven’t avoided testifying. You just avoid having to travel more
than 150 miles to do it.
Now, let’s assume you’re not a “medical eyewitness,” but, instead,
have nothing to do with the case or any of the parties. If you’ve got
be forced to testify. You don’t have to. This question arises when
some attorney is trying to get you to be an expert witness on some
issue relevant to a lawsuit or pending claim. They want you to re-
view something and render an opinion on some issue. The answer
to whether you have to do that is a resounding no. The choice is
100 percent yours. Nobody can force you. You can’t be subpoenaed
or otherwise made to do it unless you agree.
Now, with that behind us, next month we’ll discuss just how
much, if anything, you can charge for testifying.
George F. “Rick” Evans Jr., is the founding partner of
Evans, Rowe & Holbrook. A graduate of Marshall Col-
lege of Law, his practice for 36 years has been exclusively
dedicated to the representation of physicians and other
healthcare providers. Mr. Evans is the BCMS legal counsel.