Court Evaluation / Testify Fee Structure

[moto_za]

A hospital wants me to do court evaluations for the patients and possible go to court to testify. Is there a fee structure you guys would recommend asking for in terms of getting reimbursement for my time and services? What is the typical rate for these kind of services? It seems like the hospital is open to negotiating. Thanks!

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[comp1]

What are you testifying about?

 

[WisNeuro]

Are you a fact or an expert witness? Based on your original post, my assumption is fact witness.

 

[littlefred]

If you are the admitting doc I think it's part of your duties and not paid extra.

 

[wolfvgang22]

Get that bag, baby.

 

[WisNeuro]

Get that bag, baby.

If this is for general clinical work testimony, that bag ain't very big most of the time.

 

[comp1]

The fact/expert witness line can get pretty darn blurry with involuntary inpatient admissions. I have to assume that this is testifying regarding involuntary admissions. Some hospitals or counties do hire a different physician than the attending to handle these so as to reduce the conflict of interest, but I can't imagine it would pay total more than whatever Medicare pays for an admission, probably a lot less. It's not ALWAYS part of the inpatient attending's job, although it is in the large majority of jobs. Regardless, this is nowhere near forensic money, that's for darn sure.

 

[wolfvgang22]

If this is for general clinical work testimony, that bag ain't very big most of the time.

I used to get $100 every hearing as a resident.

 

[WisNeuro]

I used to get $100 every hearing as a resident.

So glad I do mostly civil work

 

[milesed]

We charge $150/hour for psyc nurse practitioners from door to door. I've never been to court since residency, but was told my hourly rate is $400-500/hour door to door also.

 

[moto_za]

I am the second evaluator for petitioned patients and testify if they move forward with the court order process. I was reading on physician side gigs facebook group that people are charging 500+/hr and my rate is nowhere near that lol. Is what other specialties are doing different? Should I ask for more? I get paid hourly for evals and a bit more when I have to go to court to testify and provide my expert opinion based on my evaluation.

 

[TexasPhysician]

I am the second evaluator for petitioned patients and testify if they move forward with the court order process. I was reading on physician side gigs facebook group that people are charging 500+/hr and my rate is nowhere near that lol. Is what other specialties are doing different? Should I ask for more? I get paid hourly for evals and a bit more when I have to go to court to testify and provide my expert opinion based on my evaluation.

Is a judge ordering this or the hospital wants a second opinion and assistance in extending involuntary hospitalization or transfer to a state hospital?

Court required items can pay very well.
Hospital evals for continued hospitalization do not.

 

[whopper]

If you are the admitting doc I think it's part of your duties and not paid extra.

Yep. Fact witness nothing or maybe paid the cost of your parking fee. In Ohio they paid me something like $10 even if I sat in court for hours. Some jurisdictions do pay the witness but something on the order only a few dollars. When I saw $100 I was actually kind of shocked.

Expert Witness, you can charge whatever you want, and most will charge more than typical insurance rates because this is specialized work.

There is an in-between type of witness. I forgot the name of it that is a new thing emerging in law. It's where you're an expert witness but the court can still make you come in and testify and not pay you. I forgot what it's called but yes that did happen to me once and I couldn't get out of it. Yes it sucks. This type of case usually happens where you're the treating doctor, but the court still wants your expert witness despite that there's an arguable boundary violation.

 

[WisNeuro]

Yep. Fact witness nothing or maybe paid the cost of your parking fee. In Ohio they paid me something like $10 even if I sat in court for hours. Some jurisdictions do pay the witness but something on the order only a few dollars. When I saw $100 I was actually kind of shocked.

Expert Witness, you can charge whatever you want, and most will charge more than typical insurance rates because this is specialized work.

There is an in-between type of witness. I forgot the name of it that is a new thing emerging in law. It's where you're an expert witness but the court can still make you come in and testify and not pay you. I forgot what it's called but yes that did happen to me once and I couldn't get out of it. Yes it sucks. This type of case usually happens where you're the treating doctor, but the court still wants your expert witness despite that there's an arguable boundary violation.

What's to stop you from simply stating, "As my evaluation/treatment was not done with forensic matters in mind, I cannot answer that question with a resonable degree of certainty," or "I have not formed an opinion regarding that question" when asked something that strays into expert vs. treater in such situations?

 

[comp1]

I guess what stops those responses is the MD upsetting the judge and getting charged with contempt of court. A judge would very likely ask the attorney to rephrase the question specific to the state law (if that's even needed) and certainly order you to actually provide a real answer to it. Juries do not understand or respect the difference between a fact and expert physician witness, even if explained to them in detail. Attorneys know and use this. Also, you're out the money and time regardless.

 

[splik]

What's to stop you from simply stating, "As my evaluation/treatment was not done with forensic matters in mind, I cannot answer that question with a resonable degree of certainty," or "I have not formed an opinion regarding that question" when asked something that strays into expert vs. treater in such situations?

The courts of generally determined that physicians are hybrid witnesses when called in a professional capacity regarding their patients. If you are asked questions like "what is schizophrenia?" or "what is abilify" or "how do psychiatrists assess suicide risk?" etc you would look foolish if you said "I haven't formed an opinion regarding that question." Now of course if they are asking you things that really are in expert witness territory (e.g. opining on causation etc) then it would be fine to answer like that or even to emphasize that professional ethics prohibit you from opining on such matters for your own patients.

 

[whopper]

What's to stop you from simply stating, "As my evaluation/treatment was not done with forensic matters in mind, I cannot answer that question with a resonable degree of certainty," or "I have not formed an opinion regarding that question" when asked something that strays into expert vs. treater in such situations?

You can say that but in the jurisdictions that created this in-between witness you can be court-ordered to give an opinion. Serious. This wasn't in my forensic training and became a new legal type of witness after my training. I looked it up and the court cases where it did happen, yes the judge can do this to you.

In the case I mentioned, I did state for the record that I was unfamiliar with this new type of testimony, and that I had problems with it because in the usual training we are told that as a treating provider there are boundary issues with giving expert witness testimony in court. The judge said I had to answer. The lawyers in both cases specifically said what type of witness it was and it wasn't a fact or expert witness. I looked it up in some legal websites and all of them minus 1 mentioned expert, fact or character witness but not this type. Only 1 mentioned this type and that type did mention it's new and they can make you testify for opinion. Further I was court-ordered to do the deed. In forensic training when you believe you are not supposed to do something and you are court-ordered to do it you are recommended to do it because then at least it's on the court and not on you such as do something that you believe may violate HIPAA. The argument being that the court interprets the law and you are allowed to defer to them in matters where you are not sure of the interpretation of the law.


Yeah I know it blows, and yes it sucks that I don't remember the term for the type of witness. When this event happened I did write about it as a warning on this forum. I did recheck a few legal websites to find that 1 website that described it but can't find it. It happened a few years ago but don't remember more of the details other than background story of the case.

 

[WisNeuro]

I guess what stops those responses is the MD upsetting the judge and getting charged with contempt of court. A judge would very likely ask the attorney to rephrase the question specific to the state law (if that's even needed) and certainly order you to actually provide a real answer to it. Juries do not understand or respect the difference between a fact and expert physician witness, even if explained to them in detail. Attorneys know and use this. Also, you're out the money and time regardless.

I've only had one time where a lawyer tried to call me as a witness as a treater and obviously wanted me to be an expert witness for his client. I told him exactly what I'd do on stand, read through my report and read segments verbatim, and answer "I have not formed an opinion on that" on anything that was not clearly stated in the report. He rescinded that depo request shortly after. Called as a treater in one other case in which I had evaluated teh person at different time points, but that counsel kept their questions to treating questions. But, that lawyer paid me up front for the time to prepare and be in deposition based on my hourly clinical fees, which are the same as my forensic fees. So, no skin off my nuts.

 

[comp1]

A lawyer paid you as a treating fact witness? That's impressive. In general, judges and attorneys are going to do whatever the heck they want at trial and you're going to assist them with it for free. The other option being jail. Depositions are a bit different as you probably don't have a judge there to order you to answer specific questions that would otherwise be considered outside of your scope as the treating provider.

 

[PsyDr]

A lawyer paid you as a treating fact witness? That's impressive. In general, judges and attorneys are going to do whatever the heck they want at trial and you're going to assist them with it for free. The other option being jail.

Attorneys have zero authority to send you to jail.

Just tell the judge "I have not been paid for expert work. I wouldn't want the court to help someone steal my services. Is there a way to ensure that I am paid?".

 

[WisNeuro]

A lawyer paid you as a treating fact witness? That's impressive. In general, judges and attorneys are going to do whatever the heck they want at trial and you're going to assist them with it for free. The other option being jail. Depositions are a bit different as you probably don't have a judge there to order you to answer specific questions that would otherwise be considered outside of your scope as the treating provider.

I simply sent my hourly fee structure and said if they wanted me to do any prep for the work, I expected to be paid for my time. If they compelled my depo, I wouldn't even look at or bring my original report to the depo.

 

[whopper]

I've only had one time where a lawyer tried to call me as a witness as a treater and obviously wanted me to be an expert witness for his client. I told him exactly what I'd do on stand, read through my report and read segments verbatim, and answer "I have not formed an opinion on that" on anything that was not clearly stated in the report. He rescinded that depo request shortly after.

I had only one incident where this situation happened. (other than the above with that weird situation where the treater was asked to testify as an expert witness).

What happened was I was an expert witness. OK fine. The problem was the evaluee/defendant switched lawyers and the expert witness is almost always paid by the lawyer. I didn't get paid yet. So now the new lawyer is asking me to work with him. Fine, but (and I don't know if you guys know this), sometimes lawyers try to get out of paying expert witnesses in bad faith and then try legal tricks they're using to playing to get out of paying. So I've made it out in my contract for work that once I reach a milestone of work, I must be paid to proceed.

So, despite that the first lawyer was still within a zone of reasonable time I told the new lawyer I didn't want to jump back into this case until I got paid by the first lawyer. What added to the problem was the defendant, falsely accused of having dementia, had a court order where all of his transactions had to be reviewed and the "reviewer" sometimes took weeks to approve these things. So the payment was caught in this bureaucracy.

I was asked to testify, and I told the new lawyer, you could ask me to go to the stand, I could even be subpoenaed, but unless I'm paid I'm now a fact-witness only and I will not give opinions. I will only state what happened. E.g. I saw the defendant. I did an evaluation. The end.

The new lawyer did explain this problem to the other parties involved and expedited my payment. It proceeded forward without a problem after that except now the new lawyer still owes me $50 but I'm not going to lose any sleep over this.

 

[comp1]

I just can't imagine a judge being okay with a physician witness getting up on the stand and evading questions they do in fact have the capability of answering after everyone has gone through all of the rigamarole of assembling a bunch of attorneys and jurors. I'm sure the law varies by jurisdiction significantly on what exactly the judge can do in that situation, but I'd certainly be peeved as juror. Maybe the reality is that it works to scare off the attorney from subpoenaing you as you might become hostile to their case? And of course the lawyers can't throw you in jail by themselves, they'd need the also peeved off judge to do that once you actually got on the stand and declined to answer questions asked. If a physician says they did an evaluation, the attorney most certainly will ask what the results of that evaluation was. If the physician answers with, "I won't tell you, I haven't been paid for that," I don't see it going well.

 

[splik]

A lawyer paid you as a treating fact witness? That's impressive. In general, judges and attorneys are going to do whatever the heck they want at trial and you're going to assist them with it for free. The other option being jail. Depositions are a bit different as you probably don't have a judge there to order you to answer specific questions that would otherwise be considered outside of your scope as the treating provider.

I charge even more as a fact witness than as an expert witness (to deter those looking for an expert opinion on the cheap). Depends on jurisdiction but where I am you are entitled to fees for time away from your work as well as the recognition we are basically hybrid witnesses. I’m not attending a deposition without getting the check in advance

 

[whopper]

What happened in the above case was I mentioned I know I have the right to not be forced to work against my will, and that if asked expert witness questions as a fact witness this in effect would've been me providing work in a manner against my will. It didn't, however, get to that, but I told the parties involved if IT DID GET TO THAT POINT, that's what I was going to do.

 

[WisNeuro]

I just can't imagine a judge being okay with a physician witness getting up on the stand and evading questions they do in fact have the capability of answering after everyone has gone through all of the rigamarole of assembling a bunch of attorneys and jurors. I'm sure the law varies by jurisdiction significantly on what exactly the judge can do in that situation, but I'd certainly be peeved as juror. Maybe the reality is that it works to scare off the attorney from subpoenaing you as you might become hostile to their case? And of course the lawyers can't throw you in jail by themselves, they'd need the also peeved off judge to do that once you actually got on the stand and declined to answer questions asked. If a physician says they did an evaluation, the attorney most certainly will ask what the results of that evaluation was. If the physician answers with, "I won't tell you, I haven't been paid for that," I don't see it going well.

Yes, and this is a treating question, not an expert question. In this case, I would simply leaf through my report and read verbatim from it, nothing more. The thing is, most of us know when this is likely going to happen and we successfully head it off. And, in mine, and my colleagues experience, the judge is MUCH MORE likely to chastise a lawyer for shenanigans than be angry at a treating or expert witness in a trial in these circumstances.

 

[TexasPhysician]

I charge even more as a fact witness than as an expert witness (to deter those looking for an expert opinion on the cheap). Depends on jurisdiction but where I am you are entitled to fees for time away from your work as well as the recognition we are basically hybrid witnesses. I’m not attending a deposition without getting the check in advance

Many states see this differently. Some state medical boards believe charging as a fact witness is an ethics violation.

 

[PsyDr]

I just can't imagine a judge being okay with a physician witness getting up on the stand and evading questions they do in fact have the capability of answering after everyone has gone through all of the rigamarole of assembling a bunch of attorneys and jurors. I'm sure the law varies by jurisdiction significantly on what exactly the judge can do in that situation, but I'd certainly be peeved as juror. Maybe the reality is that it works to scare off the attorney from subpoenaing you as you might become hostile to their case? And of course the lawyers can't throw you in jail by themselves, they'd need the also peeved off judge to do that once you actually got on the stand and declined to answer questions asked. If a physician says they did an evaluation, the attorney most certainly will ask what the results of that evaluation was. If the physician answers with, "I won't tell you, I haven't been paid for that," I don't see it going well.

In this setting, your professional work product is the opinion. It is illegal to steal services. In general, the courts do not wish to act as an accomplice in theft. In general, attorneys can be professionally sanctioned for stealing. That is why you tell the judge, "I have not been paid. Can we ensure that I will be paid? Like a court order or something? I would hate for the court to be used as an instrument of theft".

The judge will force an expert to testify, and will note that the attorney is to pay you. Some will issue a court order. If you are a fact witness, you ASK if it is okay to steal services, ASK if the bar would be interested in this, assert that there is nothing in your records regarding that, and state that you have no professional opinions that will meet Daubert. If they force you to offer opinions, you have just ruined the admissibility of those opinions on appeal, which makes the attorney's job much more difficult.

Now imagine you are the attorney. Do you want the judge to think you are unethical? Do you want the other side knowing that you lack resources for an appeal or a delay? If the court transcript has the judge saying, "We will make sure that Attorney X will pay you", and that gets sent over to the bar in a complaint.... will that be good for your license?