AAOS Bulletin - June, 2006

Setting fees for orthopaedic expert witness testimony

Several methods can be used to determine “reasonable” fees

By Kathleen Delaney

Orthopaedic surgeons who agree to serve as expert witnesses in medical liability cases for either the defense or the plaintiff have the right to be reasonably compensated for their time and effort. Setting appropriate fee schedules for depositions or court testimony, however, can be challenging for both novice and experienced expert witnesses.

The AAOS Advisory Statement on Orthopaedic Medical Testimony advises that fees should be “reasonable.” Courts also allow “reasonable” fees for expert witnesses.

Expert witnesses who are perceived to charge exorbitant fees may find themselves at the mercy of a judge who imposes significantly lower fees.

Types of expert witnesses

How, then, do orthopaedic expert witnesses calculate the value of their time and effort when participating in the medicolegal arena? The first step should be to examine why the orthopaedic expert witness is a part of the legal proceedings.

Orthopaedic expert witnesses may be treating physicians or hired as witnesses for the plaintiff or defendant. The AAOS Advisory Statement on Orthopaedic Medical Testimony makes a clear distinction between these two types of orthopaedic expert witnesses:

Orthopaedic treating physicians: “The orthopaedic treating physician has an ethical obligation to provide truthful, scientifically correct, and clinically accurate testimony and is entitled to reasonable compensation for the time spent to prepare and give testimony. A request for unreasonable compensation by the treating orthopaedic surgeon may be a de facto refusal to testify, and may be considered unethical. The treating orthopaedic surgeon may become an expert witness, but is not ethically bound to do so.”

Orthopaedist testimony—guidelines for behavior: “Compensation for providing testimony should be reasonable and commensurate with the time and effort required preparing for the deposition and appearing in court. It is unethical to link compensation to the outcome of the case.”

Fee determination formulas

Orthopaedic surgeons have developed and relied on various formulas to determine reasonable fees for depositions and/or court testimony. The AAOS does not endorse any particular method for determining expert witness fees. Among the measurable methods of setting expert witness fees are:

• Fee equal to the amount earned if the orthopaedic surgeon saw patients in the office that day

• Fee equal to the amount earned if the orthopaedic surgeon performed surgery that day

• Fee equal to the amount earned through a combination of office and surgery work

• Hourly fee equal to the highest-paid attorney in the geographic area

A recent survey of expert witnesses1 indicates that most charge significantly more for trial testimony than for file reviews or depositions. In addition, nearly three-quarters of medical expert witnesses charge a minimum amount for deposition and trial testimony. A majority of medical expert witnesses also maintain a cancellation policy if the deposition or trial appearance is changed within a specific period.

Many orthopaedic expert witnesses report difficulty receiving payment from either the retaining or opposing counsel. To offset this problem, some expert witnesses have a written fee agreement indicating that counsel, not the client, is responsible for paying the fees. Expert witnesses often include the following clauses in written fee agreements:

• A fee schedule for depositions and in-court testimony

• Cancellation policies

• Payment of out-of-pocket expenses, such as travel costs, car rental, hotel, food,

• research, printing, postage and express packages

• Interest for overdue accounts

• Retaining counsel’s fee payment responsibility

• Payment for preparation time

Before entering into any written contract, an expert witness should seek the advice of legal counsel. It is also advisable to seek legal counsel from a local attorney on how best to avoid court interference with reasonable expert witness fees.

Some orthopaedic expert witnesses require payment in advance of the deposition or court testimony. Each of these strategies can be effective in avoiding court determination of appropriate fees.

Summary

Orthopaedic surgeons who provide expert testimony have an obligation to be truthful, fair and impartial. It is not possible to put a price on this legal and ethical obligation. There are, however, techniques that orthopaedic surgeons may develop to determine and receive reasonable compensation for the time and effort they spend as orthopaedic expert witnesses.

Kathleen Delaney is the professional compliance program coordinator in the AAOS office of general counsel. She can be reached at aaosexpertwitness@aaos.org

References:

1. National Guide to Expert Witness Fees and Billing Procedures, 2004 SEAK, Inc.


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