If you’re looking to make some extra cash on your own time, and add some oomph to your resume, this is what you need to know to be an expert witness.
How to get the job as an expert witness:
- Sometimes (rarely) a job falls into your lap. This is how my first one came to me.
- Talk with potential patients – if they tell you a story about a friend or family that recently had an eye problem that is in litigation, ask if you can offer your help as an expert witness.
- Talk with potential lawyers – the lawyers that advertise for an auto accident or worker’s comp claims are likely to have a few cases a year with eye complications, opening the market for you to step in. Call and let them know what you can do for them. Straight up medical malpractice lawyers usually already have an ophthalmologist on retainer.
What the job offer as an expert witness looks like:
- On the phone, the lawyer will give you a 30-second summary of the case, tell you what they want your opinion on, and ask:
- What is your rate?
- How long do you think it will take you?
What to charge as an expert witness:
- The lawyer just forwards your fees on to the client, so they usually don’t blink an eye at high rates. They expect rates to be high because they expect you to not only be credentialed but to be an expert in your field.
- If it’s your first case, you want to keep it to get it on your resume. I recommend listing:
- $50/hr for review and report
- $150/hr for deposition, with 2hr minimum
- $150/hr for trial testimony, with 4hr minimum
- Once you’re established with one or two cases as experience, up your rate to at least:
- $100/hr for review and report
- $200/hr for deposition, with 2hr minimum
- $200/hr for trial testimony, with 4hr minimum
For how long it will take, you can guesstimate based on the case. I said, “Probably just a few hours.” Keep it vague, so if they give you a larger case than you expected, you’re ok.
The more complicated the summary sounds, estimate more hours.
What to do for the “Review and Report”
- The lawyer will send you all the records they have – medical, police, etc.
- I had a complicated case with about 400 pages of records
- Don’t be overwhelmed – most of the records are fluff. The hospital record alone was 200 pages, and about 150 of that was the nurses saying nothing had changed in his major medical history in the past 20 minutes, over and over.
- Keep track of the time you are working on the case. It’s easy to work on and off without keeping track, but then how will you know what to charge?
- Make personal notes of what you’re reading. You will forget details and need to refer to them later. Get the timeline down on an excel sheet, so you know what happened in order.
Four documents to submit to the lawyer
There are FOUR separate documents you have to submit back to the lawyer:
1) Cover Letter
Like a normal cover letter, include your address, the lawyer's address, date, etc.
Re: (plaintiff’s name)
Date of Loss: (date of incident)
Dear (lawyer’s name),
Thank you for inviting me to review (plaintiff’s name)’s records to determine in reasonable medical probability the causes of his/her (specific eye problem) and ocular complications, in relation to his/her (date of incident) motor vehicle accident. I am enclosing my review and professional opinion. Please do not hesitate to contact me if you need more information or clarification.
(Your contact info)
My qualification as an expert witness is based on my education, training, and experience as a doctor of optometry, and my experience diagnosing and treating patients with traumatic eye injuries and co-managing ocular surgeries. I am a practicing optometrist, certified by the National Board of Examiners in Optometry, and am licensed by the (state) Optometry Board. I have drug prescribing authority as a therapeutic optometrist and am certified to treat glaucoma as an optometric glaucoma specialist.
Assignment and Assumptions
I have not met with or been engaged in a treating doctor-patient confidentiality relationship with (plaintiff). My opinion is being provided for clarification of medical causation purposes, not for medical treatment or prescription purposes.
(Plaintiff) was involved in a (type of incident) on (date). (2-5 sentences briefly summarizing in layman terms what happened; ex. “Mr. X began experiencing a vision problem the same day as the accident. He saw his eye doctor the same day and was diagnosed with a corneal abrasion. He thereafter suffered multiple complications with his eye.”)
I have been retained by (lawyer or law firm’s name) to review his/her medical records and offer an opinion regarding the probable relationship between (plaintiff’s) (eye problem), subsequent ocular complications, and the (type of accident) itself, to a reasonable degree of medical certainty.
Evidence Reviewed, and Research
I have reviewed (plaintiff)’s records and correspondence submitted to me by (lawyer), including historic and current eye exam records and images (etc) from his (list types of doctors, ex. Primary eye care, retinal specialist, hospital, police report, etc). I have reviewed a number of published studies regarding the ocular complications that (plaintiff) experienced.
- (List, with numbers, the records you have, and the studies you reviewed.)
- Medical records from (doctor) (dates of service)
- Medical records from (doctor) (dates of service)
- Police report of (type of accident) (date)
- Martínez-Castillo V., et al. Epiretinal membrane after pars plana vitrectomy for primary pseudophakic or aphakic rhegmatogenous retinal detachment: incidence and outcomes. Retina. 2012 Jul;32(7):1350-5.
- You’ll want to reference a lot of studies. If they question you in court about the plaintiff, the more studies you can refer to, the less you have to defend yourself. If the fact that ERM’s show up after vitrectomies is simply part of your expert “opinion,” the lawyer can tear you apart with questions about how many you’ve dealt with, and what else causes ERM’s, to look for some shadow of a doubt. But if you submit a journal article as evidence, then that is not your opinion. It becomes evidence that you refer to and don’t need to defend.
Persuasive Observations of Evidence
- (List, with numbers, key facts from records that are the most important in determining cause and effect. Also, summarize the study findings.)
- Medical records from (doctor) show that on (date), (plaintiff)’s best correctable vision was 20/20 in each eye.
- Police reports show (plaintiff)’s accident occurred on (date), and that (describe trauma).
- Medical records from (doctor) show that on (date), (plaintiff) had an (eye problem), and was referred for same-day surgery to (describe surgery).
- Martínez-Castillo V., et al. show that of patients who undergo vitrectomy for retinal detachment, about 9% develop an epiretinal membrane afterward. Visual acuity improves after surgical removal of the epiretinal membrane, although eyes with the macula detached had lower final best-corrected vision.
It is my professional opinion, and to a reasonable degree of medical certainty:
(Footnote numbers in parenthesis refer to evidence numbered above)
- (Plaintiff)’s (eye problem) was caused by physical trauma from the associated (type of accident) that occurred on (date).
- (Plaintiff)’s epiretinal membrane which was removed on (date) was caused by his retinal tear and detachment, which were caused by the associated (accident). (5)
- Conditions that continue to affect (plaintiff)’s vision include: (problem 1, problem 2, etc.)
- (Plaintiff)’s macula-off retinal detachment caused permanent functional damage that will permanently affect his vision
- The prognosis for complete restoration of vision in his right eye is very poor.
- With 20/400 vision in his right eye, binocular depth perception is functionally lost.
(All of the opinions above are my own, based on the material and assumptions given, and on my experience, education, and training, to a reasonable degree of medical certainty within the optometric field. If there is more material that has not been provided me regarding (plaintiff)’s eye care, I reserve the right to review such evidence and amend this report.)
Attached and made a part of this report is my Curriculum Vitae (Exhibit A).
My fee schedule is $(x) per hour for this case. To review all materials to date and prepare this report, I have been compensated approximately $(x). Charges for deposition and trial testimony are substantially higher because they require an interruption of my normal optometry practice.
Just a simple copy of your updated resume.
(Law firm contact info)
Date of Loss: (date)
Contractor: (Your contact info + SSN, so they can pay you)
Expert Witness Services Provided:
|[date]||Review of Medical records and preparation of report||4||$100||$400|
I attest the above information is true and correct.
Here is an example of a case I was involved in as an expert witness:
- X started out with perfect vision and wore monovision contacts.
- He was rear-ended at a stop sign. Later that day, his near eye was blurry. He assumed it was a problem with the contact lens, and scheduled a “contact lens follow-up” for one week out.
- The car crash had caused two problems:
- Macula-off retinal detachment and tear
- Epiretinal membrane (ERM).
- He had surgery to repair the detachment and remove the ERM.
- The retina surgery caused three complications:
- Cataract formation
- Epiretinal membrane (ERM) – a second one formed again on the same eye
- Neurotrophic keratitis (they clipped the long posterior ciliary nerve during surgery)
- He then had cataract surgery, and it caused two complications:
- Posterior capsule opacity (PCO)
- Cystoid macular edema (CME, Irvine-Gass Syndrome)
- The CME became chronic, unresolved even after a year of treatment.
- The neurotrophic keratitis caused a central scar to form.
- In the end, his vision was 20/400, with potential acuity of 20/50 with a corneal transplant and RGP.
- The question: With a reasonable degree of medical certainty, was the retinal detachment caused by the car crash, and if so, were all of the post-op complications foreseeable expected risks caused by the surgeries associated prior to their onset?
- If so, the defendant’s car insurance company is going to pay a lot of money for all the surgeries, and for the loss of vision in one eye.