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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