0:00

So when you think about functioning as an expert witness,

0:05

I think there should be a moment where you consider

0:07

what are the ethics of the medical expert?

0:11

Why are you doing this?

0:12

Why is the, why isn't medical expert trying, you know,

0:16

being involved in the case for most people, it's

0:19

to serve justice and truth and honesty

0:22

and to provide, um, a reasonable explanation

0:26

and opinion on a case.

0:30

Um, you're not doing this necessarily for the patient.

0:34

You're not doing this to defend your fellow physicians.

0:37

You shouldn't be doing this for the money.

0:40

Um, there is the, uh, an element of learning

0:43

through the medical-legal process,

0:45

and I will give you my perspective on that.

0:48

I think that I have learned quite a bit about how

0:51

to practice more effectively

0:52

as a physician based on my medical-legal work.

0:56

Um, you shouldn't be necessarily doing this

0:58

for the financial viability of your spouse,

1:00

your kids, but truth.

1:02

So all of these things may be going through your head,

1:05

but in the end, I think that justice must prevail.

1:10

So there's some, uh, quotes to support this.

1:13

Let your conscience not lawyers be your guide said,

1:17

will Rogers, a belief is not the truth.

1:20

Just because it is more useful is what I sometimes say.

1:24

And, uh, and I unexciting truth may be eclipsed

1:27

by a thrilling lie.

1:28

So make sure you're not lying on the stand there.

1:33

Another piece of the ethics of being a medical expert,

1:37

in my opinion, is the issue about just taking

1:42

defense cases or just taking plaintiff cases.

1:47

I, for one, in most cases

1:51

do not even know whether the legal firm that is

1:55

contacting me is in support of the plaintiff or the defense.

2:00

I try not to know, all I try, am trying to do is

2:04

to objectively look at the evidence

2:07

and the images without knowing whether the issue is in favor

2:12

of the plaintiff or the defense, just the truth.

2:17

So I take personally just plaintiff, uh,

2:20

I take plaintiff and defense cases.

2:23

In fact, right now I'm

2:26

probably at 52% plaintiff

2:29

and 48% defense the last time I looked.

2:33

If you just take a plaintiff's side

2:36

or you just take a defense side,

2:38

then lawyers like Kelly will try to impugn your

2:42

reliability and o objectivity to the jury in saying,

2:46

this is a hired gun for the defense

2:49

or a hired gun for the plaintiff.

2:51

So that hurts your credibility with the jury.

2:54

I think that if you're going to become a medical expert

2:57

and do this work, you should be, uh, obligated.

3:01

You should be committed to taking both plaintiff

3:05

and defense cases, and in my case, you know,

3:08

blind in a blinded fashion.

3:10

Kelly, did you wanna make any comment about that?

3:14

Just to say that I think you're absolutely correct.

3:17

As a plaintiff's medical malpractice attorney,

3:20

I will not hire an expert witness

3:23

who only does plaintiff's work.

3:25

And I actually look forward to the situation

3:28

where defense counsel hires an expert witness

3:31

who only does defense work

3:33

because it's very in, uh, very easy

3:36

to impugn their credibility, uh,

3:38

and show bias pretty quickly on the stand.

3:41

So my unequivocal advice, a across the board is

3:45

that if you wanna jump into this arena

3:46

and do this kind of work, you must be willing

3:49

to review cases

3:51

and, uh, offer objective opinions for both sides.

3:57

Thank you. So, um, with regard to the cases

4:01

that you are sent, as I stated previously,

4:05

if you're providing an opinion to the lawyer, I think

4:09

that upfront you should understand that they might need

4:13

that opinion at deposition or at trial,

4:18

and that means that you'll be asked the question,

4:23

was there a deviation of the standard of care?

4:25

And some people are, are hesitant to, um,

4:29

to make that definitive statement

4:31

because of him, you know, being uncomfortable with dealing

4:35

with their colleagues.

4:36

But I think it's very important that you, if you believe

4:41

that the standard of care has been broken,

4:44

that you are willing to say, this is

4:46

below the standard of care.

4:47

This is negligent.

4:49

This is not what a reasonable

4:51

or prudent practitioner is obligated to do, which is

4:55

by definition the standard of care.

4:58

And even say this is malpractice.

5:01

Once you, if you have an opinion, you have

5:04

to be definitive about it

5:05

and not say, well, most people wouldn't have done this.

5:08

Or, um, you know, this is kind of borderline.

5:12

If, if it's clear to you that it fell below the standard

5:15

of care, be willing to state it definitively at deposition,

5:20

at trial and with your, the lawyer

5:22

who is in inquiring of you.

5:26

If I can jump in

5:27

and just say something real fast that that's a great point.

5:31

And, and it's actually something that I practice

5:34

with my expert witnesses if I sense there's any sort

5:37

of hesitation, you know, to say that.

5:40

So we will go over that and,

5:42

and I'll ask, ask them the questions

5:43

that defense would ask them

5:45

and have them say, yes, in my opinion,

5:47

to a reasonable degree of medical probability

5:49

or certainty, whatever the standard is where you are.

5:52

Um, Dr. X was negligent, um, in this regard,

5:57

and we practice that so that they do get more comfortable.

5:59

It's just an important thing to do.

6:02

Very good. Uh, with regard to payment, um,

6:06

people have different means of charging the legal team

6:11

for the work that they do.

6:14

Some people would do it based on time.

6:17

I was sort of instructed by one of my mentors,

6:19

Elliot Fishman, who said, uh, don't charge by the time,

6:24

because that means that if you're fast

6:26

and efficient, you get paid less than the person

6:29

who takes a long time to do the same amount of work.

6:32

So charge by the work unit is what Elliot said, and,

6:36

and in my situation, I charge per study

6:41

so that that is, uh, it doesn't matter how much time I take

6:45

and how much time the lawyers spend with me,

6:47

I am charging them by the imaging study, the number

6:50

of imaging studies that they ask me to review.

6:53

The second reason why I do it by the study is

6:56

'cause it discourages them from sending me hundreds

6:59

of irrelevant studies that are un associated

7:04

with the case and unimportant.

7:06

They will send me the important ones for me to review,

7:09

and that's more efficient for both myself

7:12

as well as the legal team.

7:13

Um, sometimes it's, you know, how much effort do I have

7:17

to put into this if I'm having to dig

7:19

around into the literature to try

7:21

to find the imaging findings of strongies of the brain?

7:25

And, and that's something that's very obscure.

7:28

It, the effort in, in it entails is sometimes utilized

7:32

for deciding how much to uh, charge.

7:36

Uh, similarly there's the charging with regard

7:39

to depositions and trials in that situation.

7:42

Once again, you're usually charging by the time

7:46

and that time includes in most situations the travel time

7:51

to get to the courthouse.

7:54

And that may be in another state, for example.

7:57

The other thing that I will caution you is you, if you wish

8:00

to become an expert witness, is that a lot

8:03

of times you're scheduled for deposition

8:06

and scheduled for trials and you take the time off

8:10

and you ask for a vacation day.

8:13

And then, you know, two weeks before the deposition

8:16

or two days before the trial, uh, they settle the case.

8:20

In that situation, you're out vacation days

8:24

and, um, they don't have to pay by

8:27

because you haven't traveled there

8:29

and you haven't taken any time for that reason.

8:32

It's sometimes good to make sure that,

8:37

that there's an obligation for them to pay you a retainer

8:41

for scheduling the deposition

8:44

and the trial testimony so that way you're not out a day

8:47

of vacation and not getting some compensation

8:51

for when it gets canceled.

8:53

And that happens very frequently, fortunately,

8:56

because that usually means that the case has been settled.

9:02

Kelly and I sort of, uh, you could tell, have a little bit

9:04

of a disagreement about what the standard

9:07

of care is supposed to be.

9:09

She says it's a national standard and I agree with that.

9:12

However, when I'm giving an expert witness, I think about

9:16

what a similar physician in similar circumstances would do.

9:21

And in my analysis by similar

9:26

we're talking about someone who has similar training

9:30

and expertise, so

9:33

therefore a general radiologist out in the community

9:38

is not, I is not held to the same standard as

9:43

a person who has had fellowship training in a particular

9:46

subspecialty and is working at a university setting

9:51

where the case may have occurred.

9:54

So I think about that a lot when I'm asked

9:58

to give an opinion about

10:00

what a general radiologist should know versus

10:03

what an academic neuroradiologist should know.

10:06

Um, so you the standard is what a reasonably reasonable,

10:10

prudent physician would do in similar circumstances.

10:13

And in my opinion, the similar circumstances are your

10:16

location and as well as your training.

10:19

Um, that then begs the question,

10:23

if the cases against a general radiologist,

10:27

should a general radiologist be the expert witness.