Category: Medical Malpractice

Every physician and health care provider needs to have medical malpractice insurance. An average of 20,000 medical malpractice lawsuits are filed each year and by the time physicians reach age 55, about half have had at least one malpractice suit. A study by the AMA found that some specialties are at particularly high risk with the majority of general surgeons, OB-GYNs, radiologists, emergency medicine physicians, family physicians, and orthopedic surgeons being sued at some point in their careers.

There are two types of malpractice insurance: occurrence and claims made, with important differences between the two:

• Occurrence. This type of insurance policy covers the time period during which the malpractice event occurred. Because it provides lifetime coverage, there is no need to purchase a tail policy.
• Claims made. This type of insurance policy covers the time period during which the suit was filed in court. This is usually months or years after the malpractice event occurred. There is usually a retroactive date for when that coverage starts – generally the retroactive date is the date that the physician first purchased that particular claims made policy. For this reason, a tail policy must be purchased when changing insurance companies or changing jobs to a new employer. A tail policy must also be purchased when a physician with claims made insurance retires.

To understand the difference, take an example of a physician employed by City Memorial Hospital and covered by occurrence malpractice insurance. The physician retires on December 31, 2024. In July 2025, a patient that the physician cared for in 2024 files a malpractice suit. The occurrence malpractice insurance covers the physician since the malpractice event occurred in 2024, when the physician was employed and paying occurrence malpractice insurance premiums.

On the other hand, if the physician had a claims made policy when working at City Memorial Hospital in 2024, that claims made policy would not cover the physician since the malpractice claim was made in 2025, after the physician retired. Instead, the physician’s tail policy would cover lawsuit.

In the past, occurrence policies were the most common. Occurrence insurance is simple and covers the physician for life, even if a lawsuit is filed after the physician changes jobs or retires. Because occurrence insurance provides lifetime coverage, it is more expensive than claims made insurance. As more and more physicians become employed by hospitals or corporations owned by private equity groups, occurrence policies have become less frequent since employers prefer to purchase the less expensive claims made policies. Those employers can then transfer the responsibility and cost of a tail coverage policy on to the physicians if they change jobs or otherwise resign from the hospital.

In theory, the total lifetime cost of occurrence insurance should be the same as the total lifetime cost of claims made plus tail insurance. After all, a physician is equally likely to be sued whether they have occurrence or claims made policies. So, why are claims made policies becoming so much more common?

Occurrence vs claims made considerations

Most physicians do not have a choice between occurrence policies and claims made policies – that decision will be made by the hospital or corporation employing the physician. Physicians in solo practice or in a physician-owned group practice do have a choice between these insurance policies but fewer and fewer physicians are now self-employed. Here are some of the considerations that impact the two types of medical malpractice insurance:

• Statute of limitations and statute of repose. The length of time of the statute of limitations and statute of repose can impact the likelihood of a future lawsuit and impact the cost of a tail insurance policy. Each state has different laws governing the statute of limitations for medical malpractice lawsuits. For example, in Ohio, there is a 1-year statute of limitations from the time that the malpractice event was discovered and an additional 4-year statute of repose from the time that the malpractice event occurred. As an example, let’s say an Ohio surgeon leaves a sponge in the abdomen during a surgery in 2020 and the patient first discovers this when he develops an abdominal abscess in January 2023. The patient has until January 2024 to file a malpractice suit because of the 1-year statute of limitations. Now let’s say that the same patient doesn’t develop the abdominal abscess and discover the retained sponge until 2025. The patient cannot file a malpractice lawsuit because it is now beyond the 4-year statute of repose. In contrast, the statute of limitations in Florida is 2 years with a 4-year statute of repose. In New York, there is a 2.5 year statute of limitations with no additional statute of repose for most medical malpractice lawsuits but for retained foreign bodies (like a retained sponge), the statute of limitations is 1-year from discovery with a 10-year statute of repose. Thus in New York, a physician who performs invasive procedures (for example, a surgeon) could be sued 10-years after retirement whereas a physician who does not perform invasive procedures (for example, an allergist), could only be sued 2.5 years after retirement. The statute of limitations for malpractice involving minors is different and in most states does not start until the child’s 18th birthday meaning that a malpractice suit involving an event that occurred to a child could be filed up to age 19 in Ohio or age 20.5 in New York.
• Regional difference in the cost of malpractice insurance. The same insurance policy will have different costs in every state in the U.S. The biggest impact on cost is state-specific laws regarding medical malpractice. Those states that have passed malpractice reform laws have lower cost malpractice premiums than those states with malpractice laws that favor plaintiffs. In addition, the citizens of some states are more litigious than others based on social factors and state-specific legal precedents. As an example, a general surgeon practicing in Los Angeles, California will pay an average of $42,000 per year for malpractice insurance but a general surgeon practicing Miami, Florida will pay an average of $244,000 per year. With a tail policy costing 2-3 times the annual cost of a claims made policy, the general surgeon would pay about $105,000 for tail coverage in Los Angeles but could pay as much as $610,000 for tail coverage in Miami.
• The claims made retroactive date. It is crucial to understand the fine print of the malpractice insurance policy. Claims made policies will include a retroactive date – that is, the date that coverage commences. Malpractice events that occurred prior to the retroactive date are not covered. In most policies, the retroactive date will be the day that the physician first bought that particular insurance policy. That means that if a physician changes jobs or changes insurance companies, the physician would need to purchase a tail policy for any suits that later get filed for an event that occurred during their previous job or previous claims made policy since those events would be prior to the retroactive date. Some claims made policies will not have a retroactive date and (in theory) will cover any malpractice lawsuit from past employment that is filed during time that the claims made policy is active. The retroactive date will determine whether a physician needs to purchase a tail policy when changing insurance companies or when changing employers.
• The tail policy retroactive date. Tail policies are often purchased from the same insurance company that held the physician’s most recent claims made policy. The retroactive date of the tail policy is usually the date that the claims made policy first went into effect. When purchasing a tail policy it is critically important to be sure that these dates match up to be certain that there is no gap in coverage. A physician who changes jobs or insurance companies frequently might need to hold several different tail policies – one for each of several different previous claims made policies. It is necessary for the physician to have sufficient tail coverage with a retroactive date at least as far back as the state’s statute of limitation and statute of repose.
• Occurrence policies are more expensive than claims made policies. Claims made policies will not cover malpractice events that happened prior to the retroactive date and will not cover claims that are filed after the policy ends. This requires purchase of separate tail policy when a physician has a claims made policy. As a result, the annual premium for a claims made policy alone is considerably less expensive than the annual premium for an occurrence policy. That difference is made up for in the future, when the physician has to purchase a separate tail policy.
• Claims made premiums increase in the first years. Because most malpractice lawsuits are not filed for months or years after the actual event occurred, claims made policies are less expensive in the first year of the policy. The annual cost of claims made insurance premiums will then rise each year before leveling off at about 5 years into the policy. On the other hand, occurrence policies will not change appreciably from one year to the next. This can make the cost of malpractice insurance seem deceptively low when first purchasing a claims made policy compared to an occurrence policy. It is important to look beyond the cost of the first year of the claims made policy to fully appreciate the long-term cost.
• Will your employer purchase a tail for you? Many hospitals and corporate employers with claims made malpractice insurance policies will purchase a tail for physicians who leave the practice. Sometimes, this is only for physicians retiring after a certain number of years of employment. Sometimes, this is for any physician leaving the practice but only after a minimum number of years of employment. It is critical for physicians to understand the fine print about tail coverage in order to know whether the hospital or corporate employer will pay for your tail policy or whether you will have to. Also, if the hospital closes, or the corporation employing the physician goes out of business, the physician may have to purchase a tail policy even though the original employment contract promised that the employer would provide tail coverage. This happened to emergency medicine physicians employed by American Physician Partners (APP) and NES Health – both companies ceased operations, leaving tail coverage unexpectedly up to the physicians who worked for the companies. Additionally, some employment contracts will specify that the hospital or corporate employer will not purchase a tail policy for physicians who are terminated “for cause”, meaning that if the physician is fired, that physician will have to purchase their own tail policy.
• Beware of coverage gaps. If a physician with claims made insurance changes jobs with a new employer and there is a gap of a few weeks or months between the two employers, that gap in time needs to be covered. If the new employer offers to purchase a tail policy, the physician needs to be sure that the tail policy is in effect starting from the date the physician stopped working for the old employer. Otherwise the physician may be responsible for purchasing insurance coverage in case a claim is filed during the gap between employers.
• You may need more than one tail. Because the retroactive date on most tail policies is the date that the claims made policy first went into effect, a physician changing employment or changing insurance companies frequently may need to purchase a tail policy for each of several claims made policies. Again, careful attention to the fine print of the tail policy is essential as is awareness of the specific state’s statute of limitations and statute of repose.
• “Nose policies” are the opposite of tail policies. A nose policy (aka, “prior acts coverage”) is sometimes included with a new claims made policy. With a nose policy, any malpractice event occurring prior to the retroactive date of the new claims made policy is covered by the nose policy. Having a nose policy with a new claims made policy will eliminate having to purchase a tail policy with the previous claims made policy. If the nose policy has its own retroactive date, be sure that it corresponds with the statute of limitations and statue of repose of the state. “Full prior acts” policies do not have a retroactive date and cover any new claims, regardless of how long ago the malpractice event occurred.

The bottom line is that the complexities of claims made insurance policies often necessitate having an attorney review new employment contracts and insurance policy contracts to be sure that physicians do not find themselves unexpectedly not covered by malpractice insurance.

Hospitals prefer to buy claims made malpractice insurance for their doctors

Most physicians are now employed by either a hospital or a private equity-owned corporation. A minority work in physician-owned group practices. Solo private practices are largely a thing of the past. Hospitals and corporations will usually provide malpractice insurance for their employed physicians. This allows for a unified defense in event of a malpractice suit filed against both the hospital and a doctor thus preventing the finger pointing that occurs when the doctor and the hospital are represented by different insurance companies and different attorneys in a malpractice suit. Furthermore, offering to provide malpractice insurance is an important fringe benefit that hospitals use in recruiting physicians in order to remain competitive with other hospitals recruiting from the same pool of physicians.

As a physician, I would much prefer that the hospital that employs me buys occurrence malpractice insurance. But, there are several reasons why hospitals (and private equity-owned corporations) prefer to buy claims made insurance rather than occurrence insurance for their physicians.

• The premiums are lower in the first years of employment. As discussed above, malpractice claims are filed with the court months or years after the malpractice event occurs. As a result, claims made insurance is relatively inexpensive for the first year of employment and gradually increases every year until leveling off at about 5 years. Occurrence insurance costs the same per year no matter how many years the physician has been employed. A recent study found that most newly trained physicians change jobs within 2 years of their first employment after residency. Knowing this, hospitals can save a lot of money in malpractice premiums if they buy the less expensive claims made insurance for new physicians, knowing that many of them will only work at the hospital for 2 years or less.
• They may require the physician to purchase a tail policy. Some hospitals will include a tail policy with the initial employment contract but not all will. If the physician has to purchase the tail policy, this transfers a large part of the cost of malpractice insurance to the physician.
• The hospital can use a tail policy as an a work incentive. Some hospitals will agree to pay for a tail policy but only after a physician has been vested by working at the hospital for some minimum number of years, for example, 5 years. If the doctor resigns before that vestment period, then the doctor must purchase the tail policy. This can serve as a deterrent for physicians to leave the hospital practice after too short of a time, thus reducing the cost to the hospital of recruiting replacements for those physicians.
• The hospital can avoid claims histories on their physician malpractice insurance by dumping high-risk physicians. Let’s say that the hospital’s quality department identifies a physician who has not been practicing good quality medicine. Maybe the physician has a lot of patient complaints, or is found to not be using standard of care practices, or is found to be drinking on the job. These are often “for cause” reasons that the hospital can terminate the physician’s employment contract. If a tail policy is contractually not provided by the hospital for physicians terminated for cause, then the doctor will have to buy his or her own tail coverage when fired. Any future malpractice claims would then appear on the physician’s insurance record and not the hospital’s insurance record. This potentially could help the hospital avoid a costly increase in its physician malpractice insurance premiums by keeping any future malpractice claims against the physician off of the hospital’s claim history. Having a vestment period before the hospital will buy a tail policy is another way for the hospital to avoid paying for tail policies for bad physicians – if the hospital identifies a physician as being a malpractice risk because of poor performance, the hospital can terminate that physician prior to the vestment period, thus requiring the physician to buy the tail policy.
• It keeps the hospital from having to pay more for physician malpractice insurance than the other hospitals. Frequently, hospitals will purchase nose insurance as a recruitment incentive when hiring new physicians. If the last hospital that the physician worked at had claims made insurance, then the new hospital will often buy a nose policy but if the last hospital that the physician worked at had occurrence insurance, then the new hospital does not need to spend the money on a nose policy. No hospital wants to be the only hospital offering occurrence insurance since not only will the hospital be paying more in annual premiums, but they still may need to offer to also buy nose policies when recruiting new physicians who had claims made policies at their previous employer. When one hospital starts using claims made insurance policies for its doctors, other hospitals will follow suit since no hospital wants to be the only one offering occurrence insurance.

Caveat emptor

When it comes to malpractice insurance, the physician is ultimately the buyer and must be aware of all the nuances of that specific malpractice insurance policy. Occurrence policies are great and I would personally prefer occurrence insurance because of its simplicity – it covers you forever for the period of time that you were practicing and paying your malpractice insurance premiums. But claims made policies are much more complex and fraught with potential pitfalls that can result in the physician being unexpectedly uncovered and thus personally responsible for attorney costs and plaintiff awards in the event of a lawsuit. Specifically, physicians should:

• Understand the retroactive date of any new claims made policy.
• Know and understand the statute of limitations and the statute of repose of every state you practice in.
• When changing employers, try to negotiate for the new employer to purchase a tail policy for the previous employment. Alternatively, see if the employer will include a nose policy provision to the new claims made policy (without a retractive date).
• When changing employers, be sure that the gap period between employers is covered by a tail policy or a nose policy.
• Negotiate with your employer for tail coverage with your initial employment contract, before you start working and thus still have negotiation power.
• If the employer has agreed to purchase a tail policy for you if you leave for a new employer, be sure to understand any terms for coverage, such as if the employer terminates you versus you leaving on your own accord. Also, whether you need to be vested (work for the employer for a certain number of years) to be eligible for tail coverage.
• If the employer has agreed to purchase a tail policy you when you retire, be sure to know how many years you must work before you are vested, that is, how many years you must work for the employer to be eligible for a retirement tail policy.
• Most residency programs either provide occurrence insurance or provide claims made along with tail coverage. However, if a resident moonlights outside of their hospital, the resident needs to check the malpractice insurance policy provided by the moonlighting employer because tail coverage may be necessary for the moonlighting malpractice insurance.

The bottom line…

In theory, a claims made policy coupled with a tail policy should be just as good as an occurrence policy. Moreover, over the course of a physician’s career, the cost between these two options should even out to be the same. However, the nuances of the physician employment contract including the retroactive date, whether the physician or the employer pays the tail, and the requirements that the physician must meet in order for the employer to pay for the tail are critical. Without careful attention to these details, physicians could unexpectedly face gaps in time when they are uninsured. This could result in a physician having to personally pay hundreds of thousands or even millions of dollars in the event of a malpractice lawsuit filed during a coverage gap period.

February 1, 2026

25 years ago, I got a call from an attorney representing a physician in an academic medical center in another state. The physician was being sued by the family of a patient who had died from a condition mimicking acute eosinophilic pneumonia, a disease that I had published some articles about, and the attorney asked if I would be willing to be an expert witness for the case.

At the time, my only experience in a courtroom was when I was a fellow and was called as a witness in a malpractice case – a patient had died of a myocardial infarction and his family physician was being sued. I had done a consultation on the patient a year earlier when I was a Chief Resident moonlighting doing medical clearance exams for patients entering vocational rehabilitation.  The patient had exertional chest pain at the time and I told him he could not participate in rehab until he got a cardiac evaluation and that he needed to get in to see his primary care physician the next week. I contacted the patient’s family physician who agreed to do the work-up but the patient canceled all of his future appointments with the family physician and then several months later, had a massive MI and died. I wasn’t an expert witness in this case, just an unpaid witness to the facts of the case. However, my testimony did help the defense and the jury found in favor of the family physician.

So, I agreed to be an expert witness since I knew as much as anyone else about this particular disease and in hearing about the case, it seemed to me that the doctor had done all the right things, including publishing a case report about the patient to contribute to the medical literature about it. I spent hours reviewing the medical records, meeting with the attorney, writing an opinion letter for the court, and ultimately testifying to the jury during trial. After a short deliberation, the jury found in favor of the physician.

The attorney’s firm represented this particular academic medical center and they started calling me to review their pulmonary cases and critical care cases. Then attorneys representing other academic medical centers in the Midwestern U.S. and other hospitals in Ohio started calling me. Since that first case, I’ve reviewed somewhere around 150-200 cases, written dozens of opinion letters, done dozens of depositions, and testified in court 7-8 times. No one every told me how to be an expert witness, I had to learn on my own. Here are 40 things I have learned.

1. Do it for the right reason. There are some physicians who are practically full-time expert witnesses and for them, being an expert is a major source of their income. Don’t be one of these physicians. It is appropriate to be compensated for your time but the bigger reason to be an expert is to be an advocate for the truth.
2. Know who you are working for. I’ve been contacted by companies that maintain panels of physicians who are available to attorneys for expert witness work. I’ve always turned these companies down because it seemed mercenary to me. Although I’ve reviewed lots of cases, probably 90% of them were for about a dozen legal firms. These are attorneys and paralegals that I know and trust and that never pushed me to say something that I did not believe. When I encounter an attorney who wants me to say something that I don’t believe, I tell them I can’t help them and I don’t work with them again.
3. Witness for the plaintiff or witness for the defense? I have primarily been an expert for attorneys who specialize in malpractice defense (in other words, defending the doctor or hospital) – the primary reason for this is that I limited my expert witness activities to working with a small number of law firms that I knew and trusted. Most of the companies that maintain panels of experts provide them to plaintiff’s attorneys. In a deposition and in court, you will likely be asked how many cases you’ve been an expert in and whether those cases were for the defense or the plaintiff. If you do exclusively defense expert work or do exclusively plaintiff expert work, you may come across as less believable – either a professional “hired gun” for plaintiffs, or someone who thinks that doctors can do no harm for the defense. Over the years, I’ve reviewed several cases for plaintiffs – as it turned out, in each of them, I did not think that the plaintiff had a legitimate case and was able to honestly tell the attorney that I wasn’t able to support their claims.
4. Causality or standard of care? In our state, there are two kinds of expert witnesses in malpractice cases, those that testify about causality (what actually happened in the case and why?) and those that testify about standard of care (did the physician or the hospital do what most other physicians or hospitals would have done?). There are different requirements for these two types of experts and these requirements vary from state to state – for example, in our state, a physician has to spend at least 50% of their professional time in clinical practice to testify to standard of care but can spend less than 50% of their time in clinical care to testify to causality. Be sure of which type of expert role you are serving in for any given case and avoid crossing into the other role during testimony unless you are an expert for both causality and standard of care. As an example, if you are a pathologist testifying that the cause of death was a pulmonary embolism, decline to offer an opinion about whether or not the dose of prophylactic heparin that the patient had after surgery was appropriate.
5. Always be consistent. Once you testify, your words will be permanently recorded. A good attorney will search for court documents from any similar cases that you have testified in and will know what you previously said. If you contradict yourself, the attorney will let the court know – at best, the jury will find you unbelievable and at worst, the judge will find that you are guilty of perjury.
6. Charge the right amount. Your time is valuable and it is appropriate for you to be compensated accordingly. However, attorneys can (and usually will) ask you in front of the jury how much you are charging. In nearly every case, none of the jurors is going to be making anything like what you are charging per hour. Furthermore, the judge may ask you to justify your charges if they seem excessively high. There is no standard fees schedule out there and you will need to set your own. Some experts charge differently for time spent reviewing a case versus time spent in depositions versus time spent in trial. Some experts will require a retainer up front (in essence, a down payment). I always kept it simple and charged approximately the amount that our medical group billed for an hour of critical care service (remember, the charges are always set to be higher than whatever your best paying commercial insurer will pay you). I charge the same amount for record review, phone calls, depositions, and testimony. However, I charge a minimum amount for testimony at trial based on how many hours I had to block out of my schedule that day – if I testify in town, I plan on a half-day and if out to town, I plan on a full-day. To protect myself from conflict of interest with my employer, I always took vacation time to testify or do depositions (unless I could do the deposition in the evening or on a weekend) and I always did my record review during the evenings and on weekends. For what it is worth, I know of other pulmonary/critical care physicians who charge as much as $800/hour and I’ve had attorneys tell me (after trial) that my fees are too low; however, I feel that my charges are an appropriate exchange for my time. As a very general rule, the more specialized you are the more you should charge (an orthopedic surgeon will charge more than a general internist) and the more experienced you are, the more you should charge. If you are just starting out doing expert witness work, you may only charge $300/hour for record review but if you are experienced and specialized, then you may charge $600/hour for record review. Set your fees at a reasonable rate and when you are asked about them in a deposition, you can feel confident that your time is legitimately worth your fees; that way you don’t have to squirm when asked what they are.
7. Will being an expert affect your clinical practice? Being a plaintiff’s expert for a local malpractice case in your own town can be risky because you may get a reputation by the local medical community as being “evil”. Doctors talk to each other and if you are a specialist, your referrals may dry up. Even if the case is an agregious deviation from the standard of care, you are often better off being a plaintiff’s expert for cases outside of your practice’s referral network. On the other hand, I’ve been a defense expert for every hospital in our region and this generally did not harm my profession reputation. The exception is if you are a defense expert and you tell the attorney that his/her client did not meet the standard of care. This happened to me when one of my long-time referring physicians was being sued and gave my name to his attorney as a possible expert – I looked the case over and told the attorney about the weaknesses of the case and the attorney advised the physician to settle out of court. The physician has not referred any more cases to me since.
8. Be thorough. When you are reviewing a case, go through the medical record in its entirety. Don’t just review the progress notes. Sometimes, key pieces of information are buried in the chart. Be prepared to spend several hours reviewing the chart for even a short hospitalization. As an example, I once reviewed a case that involved multiple hospitalizations with the final hospitalization lasting many weeks. There were literally thousands of pages of print outs of the electronic medical records. However there was a single microbiology result that was buried in the lab reports that was never mentioned in any of the progress notes that ended up being the key to the causality of the case and the foundation of the defense attorney’s case.
9. Expose the warts. No attorney likes to be surprised at trial and learn that what their doctor or hospital did was wrong. They would far prefer to learn about the weakness of their case up front and that way, if their case is indefensible, they can settle it out of court. I once reviewed a case for a hospital that gave the wrong blood to a patient needing a transfusion; the blood was mismatched and the patient sustained permanent injury from the transfusion reaction. I told the attorney that the standard of care was not met. He paid me for my time and went on to settle the case out of court. In another case, I told the attorneys that their doctor had not met the standard of care in managing fluids and electrolytes – they decided to take the case to trial anyway, and the jury found in favor of the plaintiff to the tune of $5 million. I’ve had cases where I thought that the general standard of care was met but that there were some significant problems and that if asked under oath, I’d have to acknowledge them – in those situations, the attorney has often kept me on as a consultant in the case but did not put me on the witness stand to testify, knowing what I would have to truthfully say.
10. Be careful with your notes. I normally take notes as I go through a medical record. It helps me organize a timeline and abstract key elements of progress notes, lab values, etc. However, the opposing attorney will usually ask you in a deposition if you have any notes that you have made about the case and you will have to given them to the attorney who will make them a into an exhibit for the case. Stick with writing down things that are in the chart (actual lab values, quotes from progress notes, etc.) and do not write down your opinions – anything written down in your notes can be used to contradict you or to discredit you. Also, you are better off having telephone conversations with the attorney who is retaining you rather than sending memos or emails so that you are not asked to produce any emails or documents at trial.
11. Don’t do literature research about the case unless your attorney tells you to. The opposing attorney can ask you if you reviewed any literature pertaining to the case that you are testifying about. If you did review literature, you are required to disclose it when asked and the opposing attorney can use that literature to try to contradict your testimony.
12. Keep track of your time. I keep track of my time rounded to the nearest 5 minutes. I also keep track of what I was doing during that time (record review, deposition review, phone calls, travel time, etc.). When I submit my bill, I break my time out by minutes and my activities.
13. You are now a business owner. As an expert, unless the money you get paid goes to your medical practice company, then you have to report the income on your Federal Income Tax Schedule C. You will need to fill out a W-9 form to submit with your bill to the attorney and then you will received a 1099 form at the end of the tax year. You will need to have a record system to keep track of when you sent out bills and when you received your payments. Sometimes, you won’t get a 1099 form and so you’ll need to know how much non-1099 income you will need to report on your income tax forms. Your own medical malpractice insurance will not cover your expert witness work so you are on your own – if you do a lot of expert work, you may need additional liability insurance. However, there are perks to having Schedule C income – you can deduct expenses on your Schedule C (such as journal subscriptions, textbooks, etc) if those expenses are relevant or necessary for your ability to be an expert in that area. You can also set up an SEP (simplified employment pension) for the income you have on your schedule C and this can be a pre-tax retirement savings plan that will be a tax deduction for the year that you contribute to it.
14. There is no authoritative text. The opposing attorney will often ask you whether there is a standard, authoritative reference about your speciality or the medical condition you are testifying about. The answer should be “no”. If you say that there is, that attorney will go to that textbook/website/journal article and use whatever is in that reference to try to contradict your testimony. In reality, there is never a single authoritative reference about anything in medicine and our practice is shaped by many books, lectures, journal articles, guidelines, etc.
15. Only talk with the attorney. Do not discuss the case with your partners, colleagues, or your golf buddies. You will be asked by the opposing attorney if you discussed the case with anyone other that the attorney who retained you and your truthful answer should always be “no”. You don’t want to have your friends get a subpoena to testify about what you discussed with them.
16. Have an accurate CV. The attorneys are going to research you. If you wrote an article about something, they are going to find it. Don’t try to hide anything in your professional life. I’ve even been asked to present copies of the PowerPoint slides that I use for medical school lectures I’ve given in the past.
17. Be aware (or beware) of social media. If you use Facebook, Twitter, or other social media to express your opinions on medical issues, the attorneys will find them. Anything that you have stated in social media can be used to contradict your testimony.
18. Will you be comfortable testifying in court? I’ve spent 30 years giving lectures in classrooms and 19 years appearing in front of the camera for our weekly MedNet webcasts so I’m used to public speaking. Nevertheless, I still get pretty anxious when I am testifying in court. It can be stressful to be challenged by an opposing attorney in front of a jury, judge, and spectators. Some physicians can maintain their composure despite aggressive and persistent grilling and attempts to discredit them publicly but many physicians cannot. If you meltdown in the face of verbal adversity, you will only hurt yourself or the attorney who is paying you.
19. Know your boundaries. If you are the anesthesiologist testifying in a case involving an anesthesiologist, a surgeon, a nurse, and a cardiologist, make sure that you stick to testifying about the anesthesiology care. If you start testifying about parts of the case outside of your specialty, you can not only risk making a fool out of yourself but you can also harm the attorney’s case.
20. Don’t testify when you are post-call. Giving a deposition or testifying at trial is like taking a board examination: a good night sleep is essential. You have to be mentally at the top of your game for some brain gymnastics. But unlike taking an exam, you also have to be at the top of your emotional game. You cannot get flustered or angry. For example, when giving a deposition, there will usually be a court reporter transcribing your words but only rarely will there be a videographer. Words cannot portray the emotions that physical appearances do – I’ve had an opposing attorney turn red in the face, shouting questions across the table, with spittle spewing everywhere to the point that I thought he might jump over the table and physically attack me. When I read over my deposition a couple of weeks later, none of that came across in print and I realized that his emotional outburst was a performance by a clever actor to try to get me off-balance and intimidate me. When you are giving a deposition and you start to feel your emotions clouding your logic, then ask to take a restroom break – every basketball coach knows the value of a well-timed timeout.
21. Spend time prepping for the case with your attorney. A good attorney will want to spend a couple of hours rehearsing the questions that you are going to be asked or could be asked in cross-examination. Do it and if the attorney doesn’t ask you to prep with him/her, then ask for the prep time yourself.
22. Know the chart. When you give a deposition or testify, you need to know that medical record inside and outside. You’ll need to read it, re-read it, and then re-read it again. When any of the attorneys ask you a question about the case, you need to either know the information from the medical record by memory or know exactly where the information is in the medical record so that you can locate it. Remember, the opposing attorney will have that medical record practically memorized.
23. Read your deposition. You’ll be asked at the end of giving a deposition if you want to read it before it becomes finalized. Read it. The court recorders are good but they are not perfect. If you used one medical term in your deposition and the court recorder typed in something else, you’ll have the chance to make a correction so that when the case goes to trial, your words that are used in the case are truly the correct words. However, you are only allowed to correct typographical errors – you can’t make changes to your testimony.
24. Read the other depositions. The attorney who you are working for will decide what depositions he/she wants you to read. If you are given a deposition transcript to read or an expert opinion letter to read, then do so. Sometimes there are golden nuggets hidden deep within the depositions of witnesses and sometimes there are statements by the other experts that can help the attorney you are working with prepare for the case better. It can take an hour or two to read a deposition transcript and it is pretty boring reading but every once in a while there is something in a deposition that only you, in your unique position as an experienced physician, will pick up on.
25. Avoid color commentary. I was once involved in a case where one of the plaintiff’s experts made a statement in his deposition to the effect “This is the worst care I have ever encountered in medicine”. It turns out that this expert did a lot of work as a plaintiff’s expert and had given many depositions in the past. The defense attorney pulled them all and in the trial, had the expert witness read exerts from deposition transcripts from a half dozen other cases, all of which he had said “This is the worst care I have ever encountered in medicine”. The jury did not believe anything else that the expert said during the trial.
26. The attorneys are smarter than you think. Attorneys who work in medical malpractice, whether as defense or plaintiff attorneys, are specialists. The good ones have spent years studying medical malpractice and will know a lot about medicine. They usually know what they are talking about but usually don’t like to let on how much they know. This gets back to always be honest in your testimony or in your confidential conversations with the attorneys. Successful malpractice attorneys did not become successful because they were lucky. Assume you are going to be swimming with sharks.
27. The attorneys are not as smart as you think. You spent years training to do what you do and the attorneys didn’t. You need to be able to explain the facts of the case, often in lay terms. They may not know that there is a difference in the significance in a 2 mEq change in the chloride level versus a 2 mEq change in the potassium level. It is YOU who is the expert.
28. Prepare to be embarrassed  You will be asked by the opposing attorney about where you did your training, whether you have been sued before, whether you passed your board examination the first time, etc. All of this then becomes public knowledge. If you don’t want to be asked about  blemishes in your professional past, then don’t be an expert.
29. Answer the question that you were asked. Ever watch a debate between candidates for political office? If one of them gets a question from the moderator that they don’t want to answer, then they respond with the answer to some other question that they do want to answer. In a deposition or in a trial, you can’t do this – just answer the question that you are asked. For attorneys, words matter. If you are asked, “Doctor, do you have an opinion about whether the defendant met the standard of care?”, then your answer is “Yes.”. They can then ask you specifics about your opinions. Do not go off talking about tangential things.
30. Qualify your answers when appropriate. Remember, your ultimate obligation is to be an advocate for the truth; the attorney’s obligation is to win the case for his/her client (whether that be defendant or plaintiff). Beware of being boxed into a yes-no answer about something that is not a yes-no issue. For example, if the attorney asks you “Doctor, is it not true that if the surgeon had not amputated my client’s leg that he would now have 2 feet today?”, you don’t want to simply says “Yes”. Instead, you would say, “It is true that the amputation removed one of his two feet but if the gangrenous leg resulting from necrotizing fasciitis had not be amputated, the patient would have died.”
31. Don’t speculate. If you don’t know something or if no one could know something, don’t guess. All of your statements should be “within a reasonable degree of medical certainty”.
32. Be a teacher. The jury in a medical malpractice trial won’t know very much about medicine. One of your main jobs as an expert is to educate them about the medical issues. Be prepared to speak in simple, lay terms – you’re not giving grand rounds to a bunch of doctors in your specialty. When explaining complex medical issues, look at the jury members directly – make eye contact with each of them at least once. Speak slowly with well-timed pauses for them to distill what you are telling them. Talk like you are trying to explain to a patient and their family about their disease.
33. Answer the questions succinctly. If your answers to questions are long, rambling, and drag out, you will lose the jury’s attention and their trust. Above all, don’t be boring.
34. Be confident but not cocky. You need to appear relaxed and honest. If you come across as cocky or smug, you will neither be likable nor believable. Watch your body language – don’t touch your hands together, don’t touch your face, don’t cross your arms, and don’t lean back in your chair.
35. Look the part. If you are going to be an effective physician expert witness, you need to look like the judge’s or jury’s idea of a physician. That means dressing the part. You want to look like a doctor so don’t wear a $1,000 suit but don’t dress too casually. I usually wear a sport coat, conservative tie, and slacks. Avoid sunglasses, expensive jewelry, lapel pins that make a social, business, or political statement, or casual shoes.
36. The juror’s time is valuable, also. Being a member of a jury is an important civic responsibility but every one of those jurors would be doing something else that they consider important if they weren’t on jury duty. They are sacrificing their time at work or time with their family to be at that trial. Make sure that when  you are testifying to that jury, that you are treating them with the respect that they deserve and don’t be condescending as if your time is more valuable than theirs.
37. Your best business advertisement is your deposition. There are usually attorneys from several different firms in a deposition or at trial. If you do a good job testifying, then those attorneys are going to want you on their next case. Once, I testified for the defense of an academic medical center in another city in Columbus. The plaintiff’s attorney hammered me relentlessly and I walked out of the courtroom mentally exhausted and feeling like the guy hated my guts. The day that the judge found in favor of the hospital, I got a call from the plaintiff’s attorney asking me if I’d look at a case for him. Later, his father became one of my patients.
38. These things take time. The civil litigation process can at times be very slow. You may do a review of medical records about a malpractice case and then not hear anything from an attorney for 2 years or more. Don’t dispose of those records (or your notes) until you have hear from the attorney that the case has been dismissed or settled. Only then, send those records to the shredder.
39. Don’t expect thanks. In all of the defense cases that I’ve reviewed, written opinion letters about, done depositions for, or testified in, I was only thanked by the defendant twice. I’ve been a defense expert for some of the most famous academic physicians in the country and never heard a word from them after successful resolution to their cases. Remember, your obligation, whether as a plaintiff expert or defense expert, is to the truth and to the integrity of the medical profession and neither the truth nor the profession will send you a thank-you note after the case.
40. Always, always, alway be honest. You will be paid by the attorney but your primary obligation is to the truth and to the integrity of the medical profession. Your job is not to win a debate, it is to accurately explain what happened in the case and whether the care provided was appropriate. If you get as far into a case that you are going to do a deposition or testify in court, it should be because in your best judgement you truly believe the arguments that you are going to state. If, as you get into record review and deposition transcript review, you come to believe that you don’t agree with the case as the attorney who retained you is going to present it, then tell the attorney but don’t go forward in a case that you don’t believe in.

January 28, 2018