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 you are not Board-Certified in your forensic subspecialty, you should consider it if the option is available.

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.

Read the full article which contains practical ideas and solutions to common concerns for physicians.

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.

View this answer in full

How much do Medical Expert Witnesses Earn?

This is the question I hear the most often. I dive into the hard data and a comprehensive discussion in:

Setting the Right Fee in Medical-Legal Work

It is for the benefit of medical specialists using as an examplar Psychiatrists and Psychologists–however data can extrapolate to a number of specialties.

Overview:

Your fees have a direct relationship:

  • How easy it is to find you
  • How easy it is to reach you*
  • Your demonstrated knowledge and credibility
  • The quality of your reports (get feedback and improve)
  • Times you’ve testified and positive impression made on attorneys and triers of fact
  • How many attorneys that know you and your positive reputation.
  • The number of inquiries you receive from attorneys

*Surprisingly, attorneys report they often retain the first Expert who takes their call.

Approach with Care Surveys, Websites like Salaries.com, or Government Data

In the linked article I explain why and how surveys by industry professionals or even the Bureau of Labor Statistics are unreliable. I dive into alternative sources to know how much you should charge.

Rules of Thumb

The range for medical or medical-adjacent fields range from $250 – $1200 in my experience. Let’s parse this range down to you.

Factors that influence the lowest fees are being in a physician-adjacent field such as Nurse Practitioners or LCSWs.

Psychologists or others with a PhD or PsyD rarely earn as much as MDs and DOs with exceptions:

  • Specialty knowledge in a targeted area. 
  • Testimony experience and a reputation for quality testimony.
  • Education and Credentials.
  • Clinical experience. The jury needs to know you walk the talk.
  • Geography. Experts in cities earn more than those in rural areas with these EXCEPTIONS: 1. rarity–if you are the only expert in a lightly populated area, and 2. you are skilled at IMEs and testimony by videoconferencing/remote.

The Numbers

1-3 years of medicolegal experience in 12+ cases per year and who have testified 5-15 times: the mean is nearer $600-650.

Mid-career doctors with sound credentials and testimony experience may charge $650-800.

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 itself is charged at about a 40% higher rate than the base rate.

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.

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 (in)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.

Click here for a printable version of this answer

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.”)

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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.”

American Academy of Psychiatry and the Law, Ethics Guidelines for the Practice of Forensic Psychiatry, Adopted May 2005

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.  I find most medical experts don’t want to mention money even though it is the question at the forefront of their inquiries.

Ivory Towers

When you want to be known for your sage knowledge, you might not want your motivation to seem to be money. 

Expert Witness Work in the Trenches vs. In the Tower

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 practice providing clinical 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.

Similarly, a doctor who has treated unique conditions is more likely to know about those conditions than someone who has not. E.g. a psychologist who speaks, publishes, and testifies about PTSD can charge more, earn more and get more cases if PTSD is a crucial element than a doctor who rarely treats PTSD but is a leader in the field of Psychiatry–in my opinion.

For that reason, medical Expert Witnesses are usually paid more than a doctor earns in clinical practice.

Premium Paid for Testimony

Income is increased further if you give testimony in court for two reasons:

1. Testimony is usually charged at a higher hourly rate than other work because it is more difficult and the stakes are higher. 

2. Composure and delivery of information on the stand is a skill developed by personality or experience. This makes you a more valuable expert witness than someone who has not testified or has a reputation for poor delivery and juror “connection.”

How Much Should You Charge?

To know the value of your skill in a legal environment requires research, which I break out for you on this site in How Much Should I Charge?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.

Factors That Can Elevate Fees

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 medical or psychological specialist with real chops will always be able to charge more than a generalist. The exception would be if their skill at an IME, writing a report and testifying is a negative mark.

These skills can be learned and improved with practice. Expert Witness work develops over time with a building reputation. What you charge in 10 years will have little bearing on what a novice charges. That’s ok. Check out The Long Gameplan: Expert Witness Work Over Time

How much do you charge to do my marketing?

We all want to know if we can afford the services we believe we need to grow our business. You do. I do. The short answer is this: I charge a fraction of what you charge an attorney. Return on Investment (“ROI”) should always be the guiding question.

In fact, from your perspective, it is one of the first questions an attorney may ask you. 

And it’s always a question during a first interview between us.

How Much Will This Cost Me?

For both of us, the question is actually “how much is this going to cost me?” It’s not an hourly fee you think is right, or a flat fee.

The cost is tied to 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.) The cost is very simple: time x fee. Managing expectations is part of every conversation I have with a client.
  • Third party expenses, like the services of a website developer or cost to list in a Directory.

In my experience, no two doctors are alike and no two need the same elements to their marketing plan. There’s no rubber stamp to expertise services or the cost to get that information in front of an attorney.

But I will be transparent with you about the distance between where you are and where you want to go.

The moving parts of your own practice that can change the estimate along the way.

An excellent approach is to put yourself into the place of the expert witness estimating the cost of their own services to an attorney–and an approach to scope. 

  • 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.)

Scope Drives Cost

For my services I estimate cost based on similar scope-driven considerations:

  • 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 who is the most cost-effective person to pursue it?
  • How much time do you realistically have to do tasks that you might believe will save you money to DIY? Can you perform them correctly for max effect?

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 practice, your future practice and even your own rate billed to attorneys.