Practice Development for Medical Expert Witnesses
Beryl Vaughan, Consultant
Nationwide
Email go@forensicexpertpro.com or Call (415) 302-9589
What do you want to know?
Can I be an Expert Witness if I mostly treat patients?
Of course! In fact, it is preferable.
You are considered a more valuable expert witness when it is clear you practice what you claim to know.
Attorneys prefer an expert witness who can testify about what they experience in their day-to-day practice treating patients.
The full-time forensic medical expert, on the other hand, can be characterized on the stand as a hired gun. Avoiding that impression is crucial.
How do I become Board-Certified for Medical-Legal Work Specifically? Is it necessary?
If there is no option, you still have resources to help you in your medical-legal practice. Read below.
If you are a Psychiatrist or Psychologist, there is a defined pathway to Board-Certification in this specialty.
If you are a medical specialist in another field–or any field, continuing education is available that will improve the depth of your skill and service as an expert witness. This translates to a more robust practice.
What credentials are needed to be an Expert Witness?
Ideally, you are Board-Certified in your medical specialty and hold an active medical license. I have come across practitioners who hold a medical license and are not Board-Certified. In that case, experience and reputation is everything. I would not want to be on the stand being grilled about my qualifications if they are hard to defend. Would you?
If the case requires unique expertise, then you will need to have that expertise and be able to defend any challenges you do not. For example, a case involves the use of a medical device. If you have never used that device and your practice does not bring you into contact with patients with the device, you may be disqualified from testimony.
The question is not what excludes you but what includes you.
Every doctor knows something about their field and some are particularly knowledgeable about a corner of it.
If a lawsuit involves the area of your expertise, it is essential you communicate it to attorneys–so they know! Whether you write for the Journal of the American Bar Association or your website, it should be possible for an attorney with that case to determine it is something in your wheelhouse.
Nice, but not necessary:
Publishing in your field
Speaking experience about the topics you know best.
Awards, Honors
Faculty Positions about your area of expertise.
Do I have to know the law? Do I need special experience?
See companion FAQ “How do I become Board-Certified for Medical-Legal Work? Is it necessary?”
The answer is different for all medical specialties vs. Psychiatrists.
Forensic Psychiatrists receive training in relevant caselaw.
There is no Board-Certification in “Forensic anything” in other medical specialties.
Therefore you must pursue education on your own. Here are some options:
- Join the local Bar Association, attend their programs.
- Join organizations that have annual meetings where caselaw is discussed. Many allow membership or attendance by anyone, not just those in the field.
- The Forensic Expert Witness Association FEWA, for example, has such programs as does the private organization SEAK.
- Pursue Certifications and training for your own information, such as the American Board of Independent Medical Examiners Certification (it is not a “real” Board” but does have IME med-legal training).
- Take CME courses in forensic topics
- Take CLE (Continuing Legal Education Courses) which are offered online and in person, if you are allowed to attend as a non-lawyer.
Ask the Attorney. If you are retained in a case, ask the attorney who has retained you to advise you about any applicable law related to your opinions. For example, the threshold for being incompetent varies from state to state. The attorney is the best person to ask “what is the law, what part of the law applies to my findings?”
Arguably, familiarity with the law may exist among pathologists and those who serve as Medical Examiners–because they are asked to serve as an Expert Witness. These specialists may not know caselaw or even local applicable law. I am not knowledgeable about these professions.
We already know Fellowship in Forensic Psychiatry is the only precursor to a medical-legal dedicated Board Certification. These doctors receive education about precedent-setting caselaw applicable to their medical specialty and expert opinions in general.
Doctors in specialties who have little or no forensic/medical-legal experience can start to develop skills without having to testify, such as through
- Utilization Review
- Panel organizations that mass-produce low-paying cases, but help you build experience in writing reports and synthesizing information into a medical-legal opinion.
- Workers’ Compensation cases focus on injury and recovery and are considered medical-legal in nature. Testimony is general given at a deposition in an informal setting, not a Court. Less stress, more experience.
- Fact Expert. Physicians in any specialty are sought for their expertise. This gives you room to render an opinion about what you know, without putting it in the context of the law. A fact witness educates the jury about your area of medicine generally and, perhaps, standards of care.
You will always benefit from acquiring legal knowledge. Evidentiary and other Rules and laws govern what an Expert Witness can and cannot do/say and a threshold of qualifications that must be met. As stated above CLE courses are sometimes available to non-lawyers. You don’t need the CLE credits of course, but the content can be instructional.
Do not interpret the law based on common sense or your expectations.
I encourage my clients to conduct research about the law as it applies to them, attend courses, attend Bar Association education programs and pursue mentorship.
Get a sense of how laws might work. For example, in Federal cases, experts must meet the requirements of Rule 702. Testimony by Expert Witnesses under the Federal Rules of Civil Procedure.
Just for Psychiatrists and Psychologists:
I discuss this question in the FAQ “How do I become a Forensic Psychiatrist or Psychologist.” To summarize: Forensic Psychiatrists do not have to be Board-Certified in the subspecialty of Forensic Psychiatry (ABPN), but it helps tremendously. Ditto for psychologists. About 1% of all psychologists hold the Forensic Psychology Board-Certification, from the ABPP. Think of it as a feather in your cap, not a requirement.
DISCLOSE, TRANSPARENCY: You will, however, run into serious problems if you create an impression you are Board-Certified and you are not–whatever the specialty.
If you are not Board-Certified in your forensic subspecialty (psychiatrists and psychologists,) or are not Board-Certified in a medical specialty in which you are serving as a medical-legal consultant, you should consider it.
It may not be as hard as you think. From the American Academy of Psychiatry and the Law:
Per the ABPN the primary requirement is “…successful completion of one year of ACGME-accredited fellowship training in forensic psychiatry……may be completed on a part-time basis as long as it is not less than half time; credit is not given for periods of training lasting less than one year except under special circumstances that must be approved by the ABPN Credentials Committee.” There are other requirements including exclusions and the certification examination. The ABPN site is the best source for this information, not me. Note: the ForensicExpertPro website contains information for those Board Certified in their primary specialty, (general) Psychiatry or Psychology. I have limited experience with experts in satellite or adjunct fields. For example, I have worked on cases where forensic opinion and testimony was rendered by a Licensed Social Worker (LCSW) but know nothing other than that it has occurred.
I'm a Psychiatrist (or Psychologist). What are my options?
The answers for a psychiatrist differ from a psychologist. The scope of this article is not intended to address healthcare providers in other specialties.
Psychiatrist
The American Board of Psychiatry and Neurology
A Forensic Psychiatry fellowship is the first step to acquire Board-Certification in Forensic Psychiatry, granted by the American Board of Psychiatry and Neurology.
Fellowship is a one-year program. They are offered at fewer than 50 schools in the US and generally, there are 2 Fellowship spots.
Do not fear rejection.
Obviously, some schools are more competitive than others (and more expensive) but I am continually surprised to see open Fellowship spots far into the “application cycle.” Stipends are not untenable and you may have greater flexibility than, say, residency Match.
Information about Fellowships is available from the American Academy of Psychiatry and the Law site (AAPL). Some schools have open spots for Fall 2022.
Not Board-Certified?
Psychiatrists can and do practice forensic psychiatry (lower case) who are not Board-Certified in Forensic Psychiatry. A psychiatrist can serve as a subject matter expert, for example or have experience in forensic assessment and a reputation in their field that makes Board-Certification less relevant.
The American Board of Medical Specialties
Complementary training and Board-Certification in more than one specialty can make a powerful combination if the case is medically complex. E.g. was behavior related to a psychiatric condition or side effect of meds for another condition? Did addiction impact judgment?
I recommend you look at The American Board of Medical Specialties report of Board-Certifications and requirements including options for cross-specialization. Read the 2019-2020 ABMS report for more information.
Psychologists
American Psychological Association article on Forensic Psychology.
For a psychologist, dedicated training is available through a wider range of pathways. Disclaimer: This is an overview and not intended to endorse a particular program or approach to building your practice.
A psychologist can pursue postgraduate study; some psychology programs are dedicated to acquiring a PhD or PsyD in both Psychology and Forensic Psychology.
Relatively recently, the ABPP began offering Board-Certification in Forensic Psychology. At last count, fewer than 400 psychologists held this Board-Certification, a significant addition to their credentials and qualifications as an Expert Witness. Board-Certification in Forensic Psychology from the ABPP, in my opinion, is the gold standard for credentials.
Prior to obtaining a PhD or PsyD, it is possible to pursue a Masters Degree in Forensic Psychology. John Jay College of Criminal Justice, for example, is a top-ranked school for a Master’s Degree in Forensic Psychology. Also highly ranked is the University of Denver’s Master’s Degree in Forensic Psychology. Many forensic psychologists obtain their degree online through lesser known Alliant University, because they can pursue school while holding a day job.
Talk with your colleagues! Learn how they got to their forensic practice. I recommend asking them how their own education stood up to scrutiny on the stand.
Many other sites do a better job of answering this question than me and there are dozens of dedicated Forensic Psychology programs, so I will leave it to them.
How much do Medical Expert Witnesses Earn? Do the same rules apply to non-Medical Experts?
This is the question I hear the most often. I write on the topic in depth using as an example Psychiatrists and Psychologists–but data is consistent with other medical specialties. Below is an overview. I go into an analysis of the harder data in Setting the Right Fee in Medical-Legal Work.
A physician in any medical specialty will find information of use there.
In short, your fees reflect:
- How easy it is to find you
- How easy it is to reach you*
- Your demonstrated knowledge
- The quality of your reports (get feedback and improve)
- Times you’ve testified
- How many attorneys know you
- The number of inquiries you receive from attorneys
*Surprisingly, attorneys report they often retain the first Expert who takes their call.
Documented Rates Don’t Exist
No legitimate survey has been carried out for forensic medical professionals, including psychiatrists and psychologists–it is too specialized.
However, information exists through legal documentation of fees, first-hand reports and a little deduction and extrapolation.
My experience is $250/hour to $1200/hour (how’s that for a range!).
Factors that influence the lowest fees are a PhD in a medical-adjacent field and little experience, Nurse Pracititioners, and LCSWs. Some professionals in these fields are experts in their field and a track record for testimony. They may be highly sought after and command a higher fee than others in their field.
The rate increases for a doctor or psychologist with significant clinical experience.
The more education you have, such as a Fellowship, and Board-Certification in more than one subspecialty, the more you can charge. Outliers notwithstanding:
- For experts with 1-3 years of experience who have testified 5-15 times, the mean is nearer $500
- Mid-career doctors with sound credentials and testimony experience may charge $600-800.
- A doctor at the top of their field and considerable testimony experience may expect to charge as much as $1,000-1,300/hour
- Testimony (not the base rate described above) is charged at a higher rate than the base rate. Generally about 40% higher.
This is from my own personal experience.
INCOME-to-RATE RELATIONSHIP
Fee Income drives profit in an hourly fee world. A total annual income is driven by this formula: billable rate x number of hours worked. This is usually impacted by the limitation of how much time is available for a forensic practice, given other commitments to a clinical practice.
The only exception is the doctor who chooses to bill a flat daily rate for testimony. That practice varies widely among doctors and the willingness of retaining attorneys to pay for testimony time in this manner.
Profit = Fee income, less expenses.
Projected Income you control: your hours in demand x your fee (increasing over time) less expenses.
Income is limited to how often you are retained. Thus, income is driven by demand.
Demand is generated through action.
Data Geeks: summary of hard data
There exist several private surveys conducted by expert witness directories. The samples are small, the statistics misleading and application to your field is next to null.
Most importantly, annual income reported does not usual identify based on how many hours are billed for forensic work: full-time? 20% of your time? part-time and a demanding clinical schedule? I dismiss those studies for these reasons. They are not helpful.
Bureau of Labor Statistics are often cited in the press including sites like salary.com or ziprecruiter. Reject that information. Forensic work isn’t a separate category identified by the BLS.
I believe forensic physicians in any field could earn more from their forensic work than they could. The key is increasing billable hours by obtaining more cases.
Yours change over time and ultimately reflect your experience: i.e., the number of billable hours you have spent learning your trade.
That is the point of my services–to get my clients more billable hours without sacrificing the integrity and credibility that serve a practice over decades, not years.
Whatever you decide to charge, don’t intentionally try to undersell your competition.
Your services are not available on Groupon.
Further, your rate reflects your experience. If you cut your rate because you want more work, it will be easier for attorneys to assume the rate is an accurate reflection of your experience even if it is not.
What's the difference between a "forensic" professional and being an "Expert Witness? Do they always go together?
A forensic scientist studies material to form educated conclusions.
An “Expert Witness” is a legal role. The person serving in this role renders opinions to help a jury or judge to understand the results of the investigation–an investigation the expert witness likely has conducted.
In short: If liability is proven, teaching the trier of fact will assist them in their decisions about the damages experienced by the injured party, and an appropriate award. Some experts are “fact” witnesses and not “damages” experts. In that case they explain information resting on their professional acumen in a general way.
An Expert Witness is officially disclosed to the Court and all parties, subject to laws about their qualifications and limits to testimony.
What does "forensic" mean?
Etymology: Forum, as in presented in a public forum (Latin)
“Relating to or dealing with the application of scientific knowledge to legal problems…” (Merriam Webster)
“Belonging to Courts of Justice.”
(Black’s Law Dictionary per “The Law Dictionary Featuring Black’s Law Dictionary Free Online Legal Dictionary, 2nd Ed.”)
What is Forensic Psychiatry? How about Forensic Psychology?
“Forensic Psychiatry is a subspecialty of psychiatry in which scientific and clinical expertise is applied in legal contexts involving civil, criminal, correctional, regulatory or legislative matters, and in specialized clinical consultations in areas such as risk assessment or employment. These guidelines apply to psychiatrists practicing in a forensic role.”
The American Board of Professional Psychology provides a similar definition:
“Forensic Psychology is the application of the science and profession of psychology to questions and issues relating to law and the legal system. The word “forensic” comes from the Latin word “forensis,” meaning “of the forum,” where the law courts of ancient Rome were held. Today forensic refers to the application of scientific principles and practices to the adversary process where scientists with specialized knowledge play a role.”
Forensic Psychology as defined by the American Board of Professional Psychology
Is forensic work profitable?
This is the elephant in the room. When you want to be known for your sage knowledge, you might not want your motivation to seem to be money. The fact is, forensic work and Expert Witness work are conducted as a business. Fees are charged. Payment is expected. Costs are incurred. Taxes are paid. You have competitors who will take work from you if you aren’t actively promoting yourself. As a general rule, forensic work is considered a higher and best use of skill and experience than the ongoing business of providing services. In other words, an Expert Witness on the topic of safe plumbing practices would be expected to know more than a garden variety plumber. For that reason, Experts are usually paid more than they receive in carrying out the duties of their profession. Testimony is usually charged at a higher hourly rate than other work because it is more difficult and the stakes are higher. In some professions, Forensic work pays considerably better than an ongoing job. To know the value of your skill in a legal environment requires research. The usual sources of data, like the Bureau of Labor Statistics don’t tend to break out income for forensic work from the profession at large. Some online services that provide information to attorneys about specific Experts have conducted surveys that may be helpful. When I am helping someone determine their fee, I consider the rarity of their knowledge and competitive value among others in their field. A commercial electrician is more valuable in commercial construction cases than a residential electrician. The commercial electrician can charge more, in my opinion, as a result. A casual informational interview with a few attorneys in your area wouldn’t be amiss if you are just now considering taking on Expert work. Click here for a printable version of this answer
How much do you charge to do my marketing?
We all want to know if we can afford what we suspect we need to grow our business. You do. I do.
In fact, from your perspective, it is one of the first questions an attorney may ask you.
For both of us, the question is actually “how much is this going to cost me?”
This is the scope of the project.
Scope of a marketing plan has moving parts, like
- Direct consulting (I develop a strategy for you, we assign tasks to carry it out.)
- Third party expenses, like the services of a website developer or cost to list in a Directory.
In my experience, because no two doctors are alike and no two need the same elements to their marketing plan. There’s no rubber stamp to expertise services–yours or mine.
The moving parts of your own practice that can change the estimate along the way. Here are lessons you might learn and mirror my own services.
- Have the quantity of records to review been doubled? (In my case, have we expanded the number of documents we have to develop or change–a retention contract, fee schedule or CV.)
- Did the IME drag on longer than expected? (Did our consultations prove longer than expected as I answer questions that are coming up as you go?)
- Did the attorney ask for a longer, or shorter report after you did the first report? How about a supplemental report in light of new information? (Did we decide on a more in-depth approach to one of the tasks? How about building a database of local attorneys? Creating a LinkedIn strategy? Adding and editing articles for your website.)
For me the unpredictable answers are:
- Are we talking about a website design? Big, small, tailored to my recommendations?
- Which of the parts will I handle and which will you?
- If I recommend a course of action outside the website.
- How much time do you realistically have to do tasks that you believe will save you money to DIY? Can you perform them correctly for max effect?
Turnkey services are fine. Or are you more of a DIY person with hidden talents?
Experts sell their time and experience, as do we all.
I do my best to describe a reasonable range of cost based on experience. Promises are never a good idea, for you or me.
Remember though, no one ever complained about costs coming in lower than expected, but when scope balloons, we need to communicate for transparency and planning.
My job is to help you make proven and wise decisions for the practice you have now and the one you want.
The bottom line is: I charge less than you do or, if I don’t, then we should discuss your rate. Let’s talk. Click here for a printable version of this answer
The best way to obtain this answer is to call me. Why? Because answers derive from what you can tell me about your practice.
