Chapter 14 Expert Witness Testimony
INTRODUCTION
DUTIES AND QUALIFICATIONS OF AN EXPERT WITNESS
USE OF EXPERT WITNESSES
TESTIMONY IN MEDICAL INJURY CASES
DEPOSITIONS
FEES
REVIEWING FORMER/CURRENT PATIENTS RECORDS FOR THE DEFENSE
ETHICAL OBLIGATIONS – AMA GUIDELINES
SAMPLE EXPERT WITNESS AGREEMENT
INTRODUCTION
The use of expert witness testimony, as it relates to the medical profession, is a mix of the rules regulating the practice of medicine in Nevada and the rules of evidence used in the courts of law. Expert witness testimony may be used at hearings by screening panels, convened to review claims of malpractice, or as part of a legal proceeding, either during the preliminary phase or the trial phase. The rules on the admissibility of evidence vary somewhat, depending on the nature of the proceeding, as do the requirements for establishing the qualifications of the expert. There are number of ways that an experts opinion can be brought before the convening authority. The purpose of this chapter is not to make the reader an expert on the rules of evidence regarding expert witnesses. The chapter is designed to provide a brief overview of the issues surrounding the use of expert witness testimony, and to provide the testifying physician some insight into what he or she can expect from the process. Physicians asked or directed to testify as experts will most often have the opportunity to interface with, and ask questions of, legal counsel involved in the case.
DUTIES AND QUALIFICATIONS OF AN EXPERT WITNESS
From time to time, a physician may be called upon to testify as an expert witness, either before a screening panel convened to consider medical or dental malpractice, or as part of a legal proceeding (trial, to include pre-trial activities). In some cases, the expert may be compelled to testify, regardless of their desire to do so. In other cases, providing expert testimony may be optional. Under NRS 41A.046, the Division of Insurance of the Department of Business and Industry (Division) may direct, via subpoena, an expert witness to testify at screening panel proceedings, to include the production of documents and other materials. If the expert witness refuses to attend, or fails to produce the material requested, the Division may petition the district court to intervene on its behalf. NRS 41A.046(3). If the expert witness cannot show good cause why he or she should be excused from testifying, the court shall order the expert to testify at a time and place selected by the court. Failure to comply with this order will be considered contempt of court. NRS 41A.046(5).
Contrast this requirement to testify with that specified in NRS 175.271, Expert Testimony. If the court appoints an expert witness as part of a legal proceeding, with our without the request of either party, the court selected expert shall not be appointed by the court unless he consents to act. NRS 175.271(2).
The qualifications of a witness to testify as an expert are always the subject of debate in the courtroom. To a large extent, it is up to the discretion of the court to determine if a witness is qualified and competent to testify as an expert. See Levine v. Remolif, 80 Nev. 168, 390 P.2d 718 (1964). An expert need not be licensed in the field of expertise to be considered qualified to testify. An expert witness must only possess special knowledge, training, experience, skill, or education to enable him or her to testify to matters within the scope of the field. See Wright v. Las Vegas Hacienda, Inc., 102 Nev. 261, 720 P.2d 696 (1986). This includes medical malpractice cases, where the expert need not be a physician at all. See Freeman v. Davidson, 105 Nev. 13, 768 P.2d 885 (1989). The actual threshold standard for the admissibility of expert testimony is simply whether the specialized knowledge of the proferred expert will assist the trier of fact (judge or jury) to understand evidence and determine the facts of the case. Townsend v. State, 103 Nev. 113, 734 P.2d 705 (1987).
In medical malpractice cases, one of the key elements in assessing negligence has always been the reasonable standard of care assessment. Traditionally, that standard was geographically determinant, i.e. based on a given geographic location. That rule is no longer applies if a medical specialists is the defendant. In Orcutt v. Russell V. Miller, M.D., Ltd., 95 Nev 408, 595 P.2d 1191 (1979), the court found that the strict locality rule no longer applied when the defendant is a board certified specialist. In simple terms, this means that for board certified physicians being sued for malpractice, an expert from outside the region, but a specialist in the same field as the defendant, may testify as an expert. This concept has also been applied to license revocation proceedings for medical personnel. (See Mishler v. State Bd. of Medical Examiners, 109 Nev. 287, 849 P.2d 291 (1993). The national standard of care has not yet been mandated for Nevadas non-specialists; thus, the locality rule appears to apply to generalists.
Experts, in all fields, rely on a variety of information sources when formulating their opinion. An expert may testify at trial, in terms of his or her opinion or inferences drawn, without necessarily disclosing the information, facts, and data used by the expert to formulate the opinion. At any time, however, the judge may order the witness to disclose his underlying facts and data. The expert may be cross-examined as to this information as well. NRS 50.305 (See also NRS 51.255 Learned treatises). Experts may offer their opinion based on facts made available to them up to and including the time of trial. These facts need not be admissible as evidence themselves if they are of the type usually used by experts to formulate opinions. NRS 50.285. A screening panel may be considered an expert for the purposes of rendering an opinion at trial, and it may formulate its opinion based on information otherwise inadmissible. Barrett v. Baird, 111 Nev. 1496, 908 P.2d 689 (1995); (See also Minton V. Board of Medical Examiners, 110 Nev. 1060, 881 P.2d 1339 (1994), medical board not bound by statutory rules of evidence). Finally, experts are permitted to offer their opinion on the ultimate issue to be decided by the trier of fact. NRS 50.295.
After establishing the accepted standard of care, plaintiffs use expert testimony to show that the physician’s deviation from that standard caused the plaintiff’s injury. NRS 41A.100(1). Generally, causation is established when the plaintiff proves that the physician’s deviation from the standard of care more probably than not caused the plaintiffs injury. Specifically, the expert witness will be asked whether, in his or her opinion, to a reasonable degree of medical certainty (or reasonable degree of medical probability), the defendant breached his or her duty to render services to the plaintiff using the care, skill, and knowledge ordinarily used by physicians under similar circumstances. The expert will then be asked whether, in his or her opinion, that breach of duty caused the plaintiffs injury. NRS 41A.009.
The objective is to provide the adjudicating body as much competent and useful information as is possible, within certain guidelines of fairness and admissibility of evidence. In most cases, an individual who is an expert in a given field will be found to be a competent expert witness regardless of license status or familiarity with the particular region.
USE OF EXPERT WITNESSES
The underlying principal behind the use of expert witnesses is summarized in NRS 50.275. The statute says [i]f scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert … may testify. Expert witnesses may be called upon to testify for any number of reasons, and in any number of ways. As we have already discussed, under NRS 41A.046 (and NRS 41A.049) a screening panel convened to consider whether malpractice was committed, may consider any expert testimony the panel considers necessary. NRS 41A.049(2). In fact, the screening panel may dismiss a complaint filed with the Division if the complaint is not accompanied by an affidavit supporting the allegations of malpractice, submitted by a medical expert. NRS 41A.039(2). Likewise, if liability for personal injury or death is to be imposed on a provider of medical care, based on a finding of negligence, some form of evidence establishing the acceptable standard of care, to include the use of expert testimony, must be put into evidence by the plaintiff. (See NRS 41A.100 & Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983)). There are some exceptions, depending on the circumstances of the injury or death (See NRS 41A.100(1) (a-e)), or if the propriety of the medical treatment is common knowledge (See Fernandez v. Admirand, 108 Nev. 963, 843 P.2d 354 (1992).)
Expert medical testimony is often used to establish the existence of a controlled substance, alcohol, chemical or other organic solvent in the body (blood, urine or breath) of a person charged with a crime. In those instances, the prosecution may ask that an affidavit or declaration from a medical expert that participated in the testing, be admitted into evidence. NRS 50.310 – 50.325.
In actions for medical malpractice, the findings of the screening panel that referred the matter will most often be admitted as evidence. Those findings may, or may not, have been based in part on testimony from expert witnesses. At trial, the presiding judge must give a jury instruction concerning the use of the screening panels findings. These jury instructions must point out two items. First, that the findings of the panel must not be given any greater weight than any other evidence properly offered. Second, if expert testimony was used by the panel in reaching its decision, that point must be made to the jury. NRS 41A.069.
TESTIMONY IN MEDICAL INJURY CASES
In medical malpractice injury cases, plaintiffs use expert testimony first to establish the accepted standard of care in the specific circumstances of the case, and then that the physician’s deviation from that standard caused the plaintiff’s injury. NRS 41A.100(1); Prabhu v. Levine, 112 Nev. 1538, 930 P.2d 103 (1996). The standard of care is established by expert testimony stating the level of professional learning, skill, and care required of physicians in similar circumstances. Specialists are held to the standard of skill and care expected of a reasonably competent practitioner in the same specialty wherever practicing. Orcutt v. Miller, 95 Nev. 408, 595 P.2d 1191 (1979).
After establishing the accepted standard of care, plaintiffs use expert testimony to show that the physician’s deviation from that standard caused the plaintiff’s injury. NRS 41A.100(1). Generally, causation is established when the plaintiff proves that the physician’s deviation from the standard of care more probably than not caused the ultimate injury. Specifically, the expert witness will be asked whether in his or her opinion, to a reasonable degree of medical certainty (or reasonable degree of medical probability), the defendant breached of his or her duty to render services to the plaintiff using the care, skill, and knowledge ordinarily used by physicians under similar circumstances. The expert will them be asked whether, in his or her opinion, that breach caused the plaintiffs injury. NRS 41A.009.
DEPOSITIONS
If a physician is duly served with a subpoena, the law requires that the physician attend a deposition, bringing also any papers or documents that may be requested in the subpoena. Failure to obey a properly served subpoena without adequate excuse constitutes contempt of court. NRCP 45(f).
If the physician resides in the district where the deposition will be taken, the deposition must be taken in the county where the physician either lives or works. If the physician is not a resident of the district where the deposition will be taken, the deposition may be taken either in the county where the physician was served, or within 40 miles from the place of service. NRCP 45(d)(2). If the location for the deposition is within the boundaries described above, but is still not convenient, the physician should contact all the attorneys involved in the case to discuss other options. Nevada attorneys have generally been respectful of a physicians request for a convenient time and place for depositions.
However, if necessary, a more convenient place for the deposition may be fixed by an order of the court. NRCP 45(d)(2). Occasionally, a deposition may be by written questions. N.R.C.P. 31. Depositions can be videotaped, if both parties agree, and may serve as admissible evidence in court in place of the physical presence testimony of the physician.
In criminal cases, depositions shall be taken in the same manner as provided in civil actions. NRCP 174.205.
FEES
In the case of depositions, a physician who will be asked to express an opinion as an expert witness is entitled to his or her reasonable and customary hourly or daily fee for the actual time consumed in the examination by the party requesting the deposition. NRCP 30(h)(1). The physician expert witness may request, before the date of the deposition, that the party taking the deposition pay the physician’s fee, based on the expected length of the deposition. If the deposition takes longer than anticipated, the party responsible for the additional fee shall pay the balance of the fee within 30 days of receipt of a statement from the physician. Also, if any other party present desires to question the expert, that party shall pay for the time used for questioning. In addition, a party identifying a physician who that party expects to call at trial is responsible for any fee charged by the physician for preparing for and traveling to the deposition, as well as any travel expenses incurred by the physician. NRCP 30(h)(1).
The reasonableness of expert witness fees charged by a physician for a deposition may be challenged by the party wishing to take the deposition, by a motion for the court to set the amount of compensation for the expert. However, before the motion is presented to the court, a reasonable and good faith effort at an informal resolution of the matter must have been made. If the court determines that the experts fee is indeed unreasonable, the court will set one itself. In addition, the court may impose sanctions against the party who loses the motion, and in favor of the party who prevails on the motion (as long as the prevailing party did in fact reasonably and in good faith try to settle the matter informally). NRCP 30(h)(2).
NRS 50.225 provides for the payment of certain expenses for all persons compelled by subpoena to testify at a criminal or civil trial. Although not specifically intended to address fees for expert witnesses, the statute does spell out the fees, per diem and travel expenses authorized for all witnesses. If not appearing as an expert, a physician who testifies in court is entitled to witness fees set by statute: $25 per day plus $.19 per mile round trip. In addition, the non‑expert physician witness may be entitled to a per diem allowance equal to the amount provided for state officers and employees while away from the office. Further, the court may determine the reasonable compensation of such a witness and direct its payment out of such funds as may be provided by law. NRS 175.271(5).
NRS 17.115 provides that a party refusing an offer of judgment may be required to pay the opposing partys reasonable costs of services associated with expert witnesses, if, the refusing party fails to recover a more favorable judgment in court. Arbitration is another legal proceeding that must address the payment of expert witness fees and expenses. Under NRS 695B.181, which addresses binding arbitration required by contract for non-profit health organizations, the arbitrator may require the insurer to pay expert witness fees; however, this is at the discretion of the arbitrator. Presumably, if the insurer is not directed to pay the fees, the health organization would be required to do so. NRS 695C.267 has a similar arbitration provision. These two statutes are typical of the authority and responsibility of the arbitrator to assign responsibility for the payment of expert fees.
Regardless of any rule or statute, physicians and attorneys should try to reach an understanding regarding payment of fees and reimbursements before any proceedings. A written agreement, with specific provisions for compensation for preparation, travel, and testimony, can reduce the chance of later misunderstandings and disputes. Attorneys generally will be receptive to a physicians reasonable request. A sample letter of agreement for use by physicians is at the end of this document.
In criminal cases, compensation for expert testimony is much more limited. When it appears that a defendant cannot afford deposition costs, for example when the attorney is court-appointed, compensation for expert services is generally limited to $300, plus reasonable expenses, though in some unusual cases, the court may authorize a higher amount. NRS 174.195; 7.135.
REVIEWING FORMER/CURRENT PATIENTS RECORDS FOR THE DEFENSE
Before agreeing to testify for the defense against a former or current patient, the physician must be mindful of both the physician-patient privilege (NRS 49.225), and the patients right to confidentiality of his or her medical information (NRS 449.720). However, when a patient brings a lawsuit based on medical care and its resulting injury, the patient waives his or her rights of privacy and privilege as to the care at issue. NRS 49.245(3). Due to the potential legal ramifications of a breach of the physician-patient privilege (which the patient, not the physician, controls), the physician is advised to consult with his or her personal attorney or professional liability insurer before disclosing any patient information.
ETHICAL OBLIGATIONS – AMA GUIDELINES
The Council on Ethical and Judicial Affairs of the American Medical Association, in its Current Opinions, has addressed the ethical issues of the physician as expert witness:
9.07 Medical Testimony
As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests his physician’s assistance, the physician should furnish medical evidence, with the patient’s consent, in order to secure the patient’s legal rights.
Medical experts should have recent and substantive experience in the area in which they testify and should limit their testimony to their sphere of medical expertise. Medical witnesses should be adequately prepared and should testify honestly and truthfully to the best of their medical knowledge.
The medical witness must not become an advocate or partisan in the legal proceeding. The medical witness should be adequately prepared and should testify honestly and truthfully. The attorney for the party who calls the physician as a witness should be informed of all favorable and unfavorable information developed by the physician’s evaluation of the case. It is unethical for a physician to accept compensation that is contingent upon the outcome of litigation.
SAMPLE EXPERT WITNESS AGREEMENT
Introductory paragraph:
This letter serves to confirm arrangements for professional services previously made with our office on (date). This letter should prevent any future misunderstandings about agreed upon services or fees. (Use sections 1 through 5 as needed)
- Deposition:
We have scheduled a deposition as follows:
Witness:
Subject (name of patient):
Date:
Time:
Location:
Hourly (Daily) fee:
Expected length of time:
The fee for the expected length is payable before the date of the deposition. Any balance in excess of that is due within five days of receipt of our statement. (See Nevada Rule of Civil Procedure 30(h)).
Please note that our office requires ___ hours notice of cancellation of a deposition. If the required notice of cancellation is not received, full payment for the expected length of the deposition will be charged.
- Examination and Report:
We have scheduled an examination and report as follows:
Physician:
Patient:
Type of exam:
Date:
Time:
Location:
Billing arrangements: ___(for example, amount per hour; advance payment or payment within __ days after receipt of report)___.
Please note that our office requires ___ hours notice of cancellation of an examination. If the required notice of cancellation is not received, the requesting attorney will be charged $___ for the missed appointment.
- Consultation, including pre-deposition or pretrial conference:
We have scheduled a consultation as follows:
Physician:
Attorney:
Subject:
Date:
Time:
Location:
Billing arrangements:
Please note that our office requires ___ hours notice of cancellation of a consultation. If the required notice of cancellation is not received, the attorney will be charged $___ for the missed appointment.
- Record Review and Report:
We have agreed to review records and submit a report concerning ________. Billing arrangements are as follows:
- Court Appearance:
We have scheduled a court appearance as follows:
Witness:
Subject:
Date:
Time:
Location:
Hourly fee, including travel time:
Expected length, including travel time:
Please note that our office requires ___ hours notice of cancellation of a court appearance. If the required notice of cancellation is not received, full payment for the expected length of the court appearance will be charged.
California Medical Association 1999. Reprinted with permission.