Subpoenas

[medninja]

I hate these. Is there any way anyone has found to make it less easy to waste a day of a doctor’s life.

The most common source of these is law enforcement. I get one, sometimes two, of these a year. Usually, they demand I show up in court, offering less than two weeks notice, always way after our scheduled is published. After switching or giving away a shift, or wasting days waiting to be called for testimony, I probably average a thousand dollar loss just making myself available. What’s maddening and relieving is that nine times out of ten, I never actually get called to testify because it gets settled the day of the trial after all the effort. It’s like the SICU nurse that’d page you at 3am in residency only to realize there’s already a standing order for Tylenol. You want to yell at them, but mostly you’re grateful to not have to actually get up and see them in person. More than once, they haven’t even extended the curtesy of telling me I’m no longer needed.

I’ve asked hospital counsel if the proper hoops have been jumped through to so cavalierly waste my time. Their response was a patronizing, non sequitur explaining what a subpoena is and how to not be nervous testifying.

Has anyone ever engaged their own attorney for this?

Is there a minimum amount of time that is required to force you to show up?

Do you actually have to be served in person to make it legit — like does the sheriff need to track me down? I don’t relish the prospect, but if it’d cut the number of these in half it’d be worth it.

Some non-criminal ones, like family members arguing over who’s the least awful person to neglect grandma and take her money, offer a nominal witness payment. Can I demand that first?

I know a lot of the this depends on state laws, but I’m curious if anyone has had any success anywhere with the proposed strategy.

As is, the system allows my most annoying pts to follow me home and steal more of my time, months later and for free.

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[thegenius]

For criminal cases I think we are all screwed. If you get subpoenaed you have to show up. I don't think there is a way around it. You can be hard, be tough, make their time not helpful. You can say "I don't remember anything about this case." If they ask you questions like "Define hyperglycemia" you can say "I don't know." At some point the judge might call you aside and say stop the shenanigans and just answer the questions. You'll look bad, they will look bad, the jury will think you look bad, and all that. Maybe you'll say "I don't care. I just don't want to be here." Problem is they will call you again the next year for a similar criminal case.

I've been called 3-4 times and I call the DA and ask them to have me come in when I'm not working. They have always complied with my request.

Regarding compensation I don't think we can ask for an expert witness fee in criminal cases. We'll we can ask payment and they can say no. You can basically refuse to answer any non-fact related question of the case "like define hyperglycemia". From the lawyers I have talked to (hospital CLO) he said for criminal cases there is no statute for demanding pay for expert witnesses. Problem is you were a witness to the ER encounter (a fact witness) and the lines are blurry with respect to whether you are a fact or expert witness. You have expertise in taking care of the patient and if they say "what trauma did you find on the body" you have to say "there was a minimally displaced left zygomatic arch fracture and a minimally displaced L mandibular ramus fracture resulting in mild malocclusion with 25% trismus." They might ask you what that means. You can't say "I don't know."

Now for civil cases charge away. I've made $1000 and $500 doing two zoom civil cases where a lawyer pays me for my time. They both lasted 20 minutes. It's usually insurance companies arguing who should pay for the bill. I have a PDF with my expert witness fees on there.

 

[medninja]

How do you charge for a civil case? The subpoena demands my presence. It seems as though they’ve already won the “negotiation” before I’ve even had a chance to haggle. I’d offer my services for no less than 1K a minute. I just don’t want to be bothered.

 

[thegenius]

There is a difference between the notion of being a "fact witness" and an "expert witness." If you are being subpoenaed for any reason what so ever, doesn't matter if you are an MD or not, because you witnessed a crime, you have to go. So if the lawyers for the civil suit subpoenaed you for the facts of the case, you have to tell them. "it's on the chart." The lawyer I talked to once said the rules are different for civil cases vs criminal ones. Not sure I understand entirely

 

[thegenius]

How do you charge for a civil case? The subpoena demands my presence. It seems as though they’ve already won the “negotiation” before I’ve even had a chance to haggle. I’d offer my services for no less than 1K a minute. I just don’t want to be bothered.

Also there is legal precedent from what I've read not to pay exorbitant expert witness fees like 1K/minute. Basically if people were allowed to charge anything they way, noone would ever testify and the legal system would grind to a halt.

 

[allantois]

This has been discussed extensively in the psych forum. While I have never been subpoenaed, my understanding is that you might want to reach out the attorneys and make it very clear that you will only read from your notes and not provide any expert witness testimony in the case so your presence will not be of much help to them

 

[Mount Asclepius]

If subpoenaed, give testimony solely as a fact witness. Refuse to give testimony though as an expert witness without appropriate compensation or against your scruples (I know it’s a weird/archaic word, but it seemed fitting).

 

[thegenius]

If subpoenaed, give testimony solely as a fact witness. Refuse to give testimony though as an expert witness without appropriate compensation or against your scruples (I know it’s a weird/archaic word, but it seemed fitting).

I think we would all like to do this, but sometimes the line is blurry between what is categorized as a fact question vs expert witness question.

 

[CoolDoc1729]

I think we would all like to do this, but sometimes the line is blurry between what is categorized as a fact question vs expert witness question.

When I was on maternity leave I received a subpoena. I called about 50 times and left messages with the prosecutor explaining I can’t add anything to my notes and that I’m nursing a newborn so I can’t just sit there all day … no one ever answered so I packed up my husband, my newborn, paid for parking, got the diaper bag through the metal detectors , only to be told oh they didn’t call you back? We don’t need your testimony ! It is unreal how little these people value our time.

 

[turkeyjerky]

When I was on maternity leave I received a subpoena. I called about 50 times and left messages with the prosecutor explaining I can’t add anything to my notes and that I’m nursing a newborn so I can’t just sit there all day … no one ever answered so I packed up my husband, my newborn, paid for parking, got the diaper bag through the metal detectors , only to be told oh they didn’t call you back? We don’t need your testimony ! It is unreal how little these people value our time.

That sucks, but it's astounding to me that you would go through all that trouble. A judge is not gonna hold a physician in contempt of court and put you in jail for ignoring a subpoena. Call once, leave a message saying "I'm not available that day, please call me back regarding alternates" and forget about it. Tell them that you don't live in the area and can't make it but could testify via Zoom, but not when its scheduled, perhaps that afternoon? If they need you, they'll schedule around you, but most of the time they don't.

 

[southerndoc]

Odd timing. I just received a subpoena via email this morning. Luckily they just email me the subpoenas because they know I will respond. Beats having the deputy show up at the house and make the neighbors curious.

The first thing to do is to ask to be placed on a "will call" list. That way they will only call you when necessary. I usually send them my clinical shifts the week of and the week after trial. I tell them I need 48 hours notice to get out of a clinical shift and 4 hours notice to appear if not working clinically. I also advise I'm an independent contractor and it creates financial strain if I have to give up a shift, how I'm responsible for finding coverage, etc. I have never not been accommodated. I have always been placed on a call list, and sometimes after being placed on that list, I never hear from them (because they settle).

I sometimes ask them to send the chart. The reason why they need to subpoena you for what's in the chart is because they can't just offer the chart into evidence. Someone has to interpret the documentation (the person documenting). The chart has to be read in court, and it can only be read by its author. I usually advise them that I do not have enough time to prepare to be an expert witness. Only once was I offered to be an expert witness after telling them I wouldn't be prepared. When the prosecutor asked the first expert witness type question, I politely said "I'm sorry, I have not looked at this in detail enough to offer an expert witness opinion."

Regarding civil cases, laws differ by state. Some states don't require you to show for a civil case, and you absolutely 100% should never give an opinion in a civil case without being reimbursed as an expert witness. Just read the chart. "Doctor B, do you think the bruise was from a fist?" "I cannot opine. I can only say that a bruise was present." "Was it the same size as a fist?" "I cannot say as fists differ in size. I can only say that I did not document the size of the bruise." "Does a bruise usually take a significant force of injury?" "I cannot say as I have not reviewed the latest research on how many people have bleeding disorders, are on anticoagulants, antiplatelets, and the like. I just cannot say with any degree of confidence." "Doctor B, does a bruise cause pain?" "I cannot say as it differs by individual." "Did the patient complain of pain?" "Yes" "Was it severe?" "The nurse documented it as a 5/10, and pain is subjective, so all I can say is it is documented as 5/10."

 

[CoolDoc1729]

That sucks, but it's astounding to me that you would go through all that trouble. A judge is not gonna hold a physician in contempt of court and put you in jail for ignoring a subpoena. Call once, leave a message saying "I'm not available that day, please call me back regarding alternates" and forget about it. Tell them that you don't live in the area and can't make it but could testify via Zoom, but not when its scheduled, perhaps that afternoon? If they need you, they'll schedule around you, but most of the time they don't.

I was much, much less assertive 9 years ago. It kind of astounds me too.

 

[BoardingDoc]

The most common source of these is law enforcement. I get one, sometimes two, of these a year.

1-2 a year? Is this the norm for other people as well? I've been out for 6 yrs and have not had a subpoena at any point in time. What is this stuff for? Do y'all work in super sketchy EDs (in terms of patients)? So many questions.

 

[Tiger26]

1) they can work around your schedule

2) I only read what's on the chart. Anything else is being an expert witness.

 

[bravotwozero]

I’ve actually been hired to offer expert witness on criminal cases, so that definitely is a thing

 

[medninja]

1-2 a year? Is this the norm for other people as well? I've been out for 6 yrs and have not had a subpoena at any point in time. What is this stuff for? Do y'all work in super sketchy EDs (in terms of patients)? So many questions.

I had 4 of these active at once after courts shut down for Covid. Perhaps just channeling my hatred for admin, but it feels like they offer us up gleefully. I honestly think a call from our hospital lawyer would do a lot to limit the abuse.

 

[Vandalia]

A few random points:

1. Once a case is filed in court, judges have authority to control almost every aspect of the case. In particular, they have the ability to reduce the fees of an expert witness if they are "excessive." I think MedMalReviewer posted a case of this a while back. So if you decide to sell your soul for a crazy amount of money, keep in mind that you may not be getting that crazy amount of money.

2. There is usually a statutory reimbursement for "fact" witnesses. However, it is almost invariably an absurd rate. I am pretty sure when I first testified it was $1 and a bag of oats for your horse.

3. In theory, if it relates to something that actually happened, even if it is a mental process, then it is a question of fact. If it is a hypothetical, generally speaking, the only way a witness can comment on it is if they are qualified as an expert witness. So if the prosecutor asks you if you considered activating the physical abuse protocol, then that question is fair game. In theory. If you remember.

4. The most important rule to remember is the judge can lock you up. If the judge says give a substantive answer to a question, give a substantive answer to the question. The fact the appellate court says they really shouldn't have done that won't make up for the night in jail. This also goes with the fundamental rule that the less power people have, the more they tend to use what they do have. A federal judge has near god-like power in her courtroom, so they don't worry how they look. The magistrate who only needs to have a high school diploma needs to feed her ego.

 

[thegenius]

A few random points:

1. Once a case is filed in court, judges have authority to control almost every aspect of the case. In particular, they have the ability to reduce the fees of an expert witness if they are "excessive." I think MedMalReviewer posted a case of this a while back. So if you decide to sell your soul for a crazy amount of money, keep in mind that you may not be getting that crazy amount of money.

2. There is usually a statutory reimbursement for "fact" witnesses. However, it is almost invariably an absurd rate. I am pretty sure when I first testified it was $1 and a bag of oats for your horse.

3. In theory, if it relates to something that actually happened, even if it is a mental process, then it is a question of fact. If it is a hypothetical, generally speaking, the only way a witness can comment on it is if they are qualified as an expert witness. So if the prosecutor asks you if you considered activating the physical abuse protocol, then that question is fair game. In theory. If you remember.

4. The most important rule to remember is the judge can lock you up. If the judge says give a substantive answer to a question, give a substantive answer to the question. The fact the appellate court says they really shouldn't have done that won't make up for the night in jail. This also goes with the fundamental rule that the less power people have, the more they tend to use what they do have. A federal judge has near god-like power in her courtroom, so they don't worry how they look. The magistrate who only needs to have a high school diploma needs to feed her ego.

Yea. I think bargaining before with the DA is all fair game, you can say that you don't remember anything at all about the case, you are only going to read off the chart. But if you end up in the courtroom, you can play hardball all you want and it probably won't change much of anything. Once you are in court, it's over and you have lost. You've had to drive there, you potentially lost pay, etc.

 

[pkwraith]

Not too long ago I got a text from our office coordinator, "good news, you don't have to go in on Wednesday, they reached a pre trial settlement."
It was good news! Because no one told me about any subpoenas and obviously I had made no plans