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LEGAL EASE
the expert’s credibility is placed in jeopardy because he starts to
look like a paid gun for hire who’ll say anything if the price is
right. Jurors don’t expect you to lose time from your practice for
free, but they may question your objectivity if by testifying you’re a medical “eyewitness” and therefore forced to testify without pay.
raking in two or three times what you earn caring for patients.
Many attorneys won’t hire such experts; not because they can’t
afford it, but because they know they won’t be credible. So, here
are some guidelines.
I’ve found that many doctors charge about $250 to $350 per
hour. That’s just an average based on experience. The rarer and
more specialized the physician, the higher the rate goes. A neu-
rosurgeon may charge three times that amount and, in some
cases, even as much as $1,000 per hour. And some family prac-
tice doctors may charge only $100 or $150 per hour. But, having
hired and having deposed hundreds of doctors over the years,
throughout the entire country, I can tell you that probably 75
percent of them charge somewhere between $200 and $500 per
hour. Unless you’re from a relatively rare specialty, charging a lot pressive enough, the attorney requesting your testimony may
more than $500 will be a little difficult. There is, however, one
small refinement to these general observations as discussed below.
Although there are plenty of exceptions to this rule, I’ve found
that, on balance, physicians testifying for the plaintiff tend to
charge a tad more than those testifying for the defense. Yes, there
are plenty of exceptions, but I’m talking about a general rule.
Maybe it’s because they think they can afford it. Maybe it’s be-
cause they think they’re going out on a limb by testifying for the
plaintiffs. The difference may not be great but I have found a
difference. Perhaps something in the neighborhood of $100 or
even $200 more per hour. By no means is this always the case,
but it’s happened with enough frequency that I feel confident it’s
a legitimate observation worth sharing with you.
PRACTICAL STRATEGIES
No attorney wants to have a witness testify if that witness is
mad at them. An uncooperative, recalcitrant witness can easily
harm a case, whereas a contented, happy witness wanting to
help can make all the difference in the world. OK, that’s not
rocket science, right? But that’s how you can sometimes make
sure you get paid even when you may not have a clear right to
payment even though Rule 176 requires you be protected
against “expense.” Here’s how to do it.
The next time you receive a subpoena or get a call from an at-
torney asking you to testify, ask yourself if somehow you’re in-
volved with one of the parties to the case. If you are, you may be
But, here’s what you can do.
Option one: call your medical malpractice insurer, tell them
you’ve received a subpoena or a demand to testify regarding one
of your patients. They’ll usually be happy to have one of their
local defense attorneys handle it for you. Ask for the name of the
attorney they’re assigning to you, call him, and tell him one of
two things. One is that you don’t want to testify at all and want
to avoid it if legally possible. Or, two, that you’re willing to testify
but you want to be paid for your time.
If you don’t want to testify at all, you can work with your at-
torney to outline all the things that you might truthfully say
that could actually harm the attorney’s case. If the list is im-
well back off when he hears all the downsides to your testimony.
Who wants a witness who hurts them? If your testimony looks
like it may damage the case, the attorney almost assuredly will
drop the subpoena.
Or, if you are willing to testify but want compensation, your
attorney can argue Rule 176. Plus, while trying to convince the
other side that Rule 176 requires you be paid for your lost in-
come, your attorney can further remind opposing counsel that a
happy, contented witness will be much easier to work with than
one who is hostile. Paid witnesses are happy. Unpaid witnesses
aren’t. If your rate is reasonable, the other side will typically
agree. If not, you may get a judge who understands the economic
burden to you and require the other side to pay for your time.
Option two: If you don’t want to use an attorney, there’s no
reason you can’t do it yourself or have your office manager make
the same arguments as outlined above. I just think having a
skilled professional do it for you works better, and your med-mal
carrier will usually provide one to you free of charge.
Let me close with a few practical pointers
on this subject.
Rule 176 also requires that an attorney issuing a subpoena
protect the witness against other burdens apart from expense.
It specifically provides the witness must be provided “an ade-
quate time for compliance.” If you receive a subpoena on late
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