It looks glamorous on our television screens each week: Physicians in a seat of authority in the courtroom, pointing the finger at the bad guy in a calm, cool style. They are Matlock’s right-hand men and women, Arthur Branch’s buddies. But in real-life courtrooms from New York City to Atlanta, Las Vegas to Miami, the drama surrounding expert witness services is tame—until the physician exits the courthouse doors.
When it comes to taking the stand, the American Medical Association is in favor of it, and actually encourages members to serve as impartial expert witnesses. The AMA is, however, on the record in favor of medical associations punishing those physicians who violate pre-set ethical standards. In a nutshell, it considers expert witness activities to be the same as practicing medicine, so what you say on the stand is subject to peer review. Individual medical societies put out statements using different words, but they boil down to similar sentiments.
And just like that, the topic hits treacherous waters.
Yet it was a simple decision for John Lavorgna, MD, a retired orthopedic surgeon in San Francisco, to jump into the business. Lavorgna now works for Weitz Medical Management, a firm that liaisons between physicians and referring attorneys in that city. His first partner back in the 1970s did workers compensation and civil litigation evaluations and offered Lavorgna the overflow. “It’s an entirely different discipline from the scientific background of orthopedics,” he says.
Likewise, Michael Williams, MD, a neurologist, who is the medical director of the LifeBridge Health Brain and Spine Institute in Baltimore, was approached while on the faculty at Johns Hopkins to look over a case early in his career. “It wasn’t something deliberate, it was more of an accident,” he says. He says he’s done a handful of cases in his career.
“Probably the thing that attracts most physicians to it is the income, and it usually pays more per hour than most physicians can earn seeing patients,” says Williams. “But doing so requires a real commitment and real work, and I think while a number of physicians are prepared for that, there are also those who don’t realize what they are getting into.”
Any physician could potentially provide value
to the legal system, although specialists tend to be more
in demand than primary care doctors.
Just the Facts, Ma’am
Any physician could potentially provide value to the legal system, although specialists tend to be more in demand than primary care doctors, in Lavorgna’s experience. Residents rarely have the experience yet to bring to a courtroom; Dan Larriviere, MD, JD, an assistant professor of neurology at the University of Virginia School of Medicine and an academic instructor at that university’s law school, recommends that physicians have at least five years of practice under their belts before taking on this sideline. “And (speaking) as an attorney, physicians who do almost no clinical work any more are less than ideal,” he says. “If it’s been 10 years since you’ve seen a patient, it might make your testimony a bit less credible.”
When Tekla Schlaich, the director of operations for American Medical Forensic Specialists, Inc. (AMFS), a medical expert witness recruitment firm based in Emeryville, California, scans a CV, she’s looking for fairly straightforward items: The candidate must be board-certified and actively practicing. His medical-legal work should make up no more than 3 to 5 percent of his overall income, lest he cross the line into becoming a hired gun as opposed to a mainstream doctor who occasionally testifies. And she wants to see a CV thick with lectures, papers, and grants in full detail, not abbreviated versions. AMFS’s medical board approves who to keep in its stable—currently, the firm can draw on more than 8,500 physicians in 250 specialties around the country.
Even after clearing these hurdles, however, presentation still plays a large role in who will get work. For instance, the witness has to look professional in front of a judge and jury. “Good communication is essential, which should come naturally to physicians who are used to explaining medical information to their patients,” says Schlaich.
That’s certainly a good cornerstone, says Lavorgna, but there are important twists. “A good report backs up all conclusions, and that can be difficult simply because physicians are not accustomed to justifying a conclusion regarding recommendations for medical treatment. The legal world is different – you have to prove your points or come within reasonable probability or certainty,” he says. For instance, it’s entirely possible the attorney on the other side of the courtroom will ask if chances of an outcome are 49 percent or 51 percent, and the expert has to not only make a decision but back that up.
“I sometimes say that the doctor has to take off the white coat in order to do expert witness work,” Lavorgna says. “The goal of most of this work is to resolve cases. The better the physician is at that, the more desirable he is as a witness.”