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Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.
Compensating the expert.
Prior to trial, counsel should have a clear understanding with the expert as to compensation, and as to who is responsible for payment. It is considered unethical for a medical expert witness to agree upon a contingent form of payment.
Certain interprofessional codes between bar associations and medical associations make it the obligation of the attorney, as opposed to the client, to see to it that a medical expert is compensated. The rate of compensation varies with the community and with the medical specialty. If a general practitioner sees thirty patients per day, at an average of twenty dollars per patient, a fair compensation for taking a full day out of his practice would probably not exceed this amount, $600. On the other hand, a specialist in open heart surgery might charge $5,000 for an operation, and a day away from his practice would call for commensurate compensation. But there is a trend at present for some medical experts to charge on the basis of all or a portion of a court "session." Under this system, a day in court is divided into two sections, morning and afternoon.
Whatever the charge, it should be agreed upon, and the expert should be reminded that there should be no reluctance on his or her part during cross-examination by opposing counsel to answer truthfully regarding the amount. In fact, in many cases, it is advisable for the attorney calling the expert to bring to the attention of the jury, in advance, the fact that the expert is being compensated. This may avoid awkwardness on cross-examination. If an expert witness attempts to withhold information concerning compensation, or even hesitates in answering, a jury becomes suspicious, and otherwise truthful testimony may be severely weakened.
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