Getting Paid as an Expert Witness When You’re the Treating Clinician

I have been asked to address a question that seems to crop up frequently–should I charge attorneys for my time as an expert in court when I’m the treating clinician? There seems to be some difference of opinion about this, so sure, I’ll wade in and provide what will be, for some, an unsatisfying answer. No. And here’s why–you should be compensated by your own program for time preparing for and going to court, whether as part of your per case pay (some places roll that into the rate) or billing your program for that time on a case by case basis. When I’ve asked prosecutors close to me about their response to a treating clinician wanting to bill for their time providing expert testimony, they’ve universally shrugged and essentially said, “I’ll just subpoena them”, which obligates a clinician to appear, regardless of their feelings about being paid. I am a huge proponent of people being compensated fairly for work they do, and this is not a nurses-being-undervalued issue. Physicians who provide care to patients are also expected to show up in court without being paid additionally as experts by the requesting prosecutor’s office.  Our jobs include providing testimony for cases that go forward. We sign on for that when we hire into programs (managers: this is something you should be reinforcing to new hires). The National Protocol says it quite concisely: “It should be expected that examiners will be called on to testify in court as either fact and/or expert witnesses, even though in some cases, a plea bargain may be agreed upon, or the prosecuting attorney may decide not to try the case. Examiners should always conduct and document each examination knowing that legal testimony may ultimately be required.” Clinical programs should compensate clinicians for all aspects of the patient encounter, which in some cases includes courtroom testimony. And it’s a benefit to patients that you are an expert, and may be recognized as such by the courts. For those who don’t feel they are being fairly compensated for court appearances, that’s a negotiation with your organization, not the prosecutor’s office.

Now, should we be compensated by attorneys for cases in which we were not the treatment provider? Absolutely. And everyone should have a fee schedule they can provide should the opportunity to perform this type of expert consultation and testimony arise.

Some of you will undoubtedly disagree with me, and that’s cool–I’m happy to debate the merits of my opinion via email or in the comments. For those of you who have developed creative solutions for addressing this issue, by all means, I’d love to hear about it. Knowing how often I am asked about this issue, I am certain I wouldn’t be the only one.

Comments

  1. May 07, 2017 | 3:19 pm

    Jim Clark

    I totally agree with both aspects, but with a caveat.. Yes, the clinical program SHOULD pay you. And yes, if any one wants expert testimony from you as expert only, charge them. And charge them what you are worth, including preparation time, time spent sitting around in court, and time testifying.
    BUT, I was a prosecutor for 27 years, trying mostly sexual assault and homicide cases. I always inquired as to the program’s policies. If the clinician was not going to be paid, I would get the money from the prosecutor’s slush fund, because the state is richer than the clinician, and “your program should be paying you” does not pay the bills.
    So that part was mostly to the prosecutors out there: pay attention to the needs of your partners. You can rarely prove a sexual assault case without them, and being sure they get paid by someone will pay dividends for years in good will, informal consultations, and maximum effort for prep. [Oh, and be sure to meet with the clinician before the trial to prepare you both: it not only makes the testimony smoother, but they will usually tell you stuff that you didn’t know they knew or could testify about. Yes, some prosecutors don’t do this.]

    • May 08, 2017 | 7:39 am

      Jen

      Jim,

      I very much appreciate the comment. I generally agree, although I think the point I want to emphasize is, clinicians, in doing the exam, don’t get to decide whether they will testify as experts or not, pending payment. It’s part of the gig, and as a profession, we need to ensure that we are compensated for the totality of the work we do with patients. But that compensation should come from our clinical programs, not prosecutors. It’s lovely you guys made sure SANEs were paid for their time out of your slush fund, but that’s not the norm, nor should it have to be the way we receive payment for those services.

      Thanks, as always, for reading (and commenting).