Non-Treating Physicians “Expert Witnesses”
Non-treating physicians may be approached by lawyers (the Crown Attorney’s office, criminal defence lawyers, personal injury lawyers, or others) to testify as expert witnesses. A physician has the choice to decide if they wish to be an expert witness.
Usually, expert witnesses have not seen the patient prior to being contacted. The physician may be asked to examine the patient and/or review medical records to establish an opinion regarding matters such as the patient’s injuries/medical condition or standards of previous medical care.
Many criminal and civil cases are resolved without the need for a trial. If a trial does proceed, the expert witness will almost always need to attend to give evidence in the courtroom.
A physician acting as an “expert witness” will provide a CV, and based on the CV, the parties may agree in advance of the court appearance that the physician qualifies as an expert. However, it may be that the physician will, at the commencement of their testimony (and with the guidance of the party who retained them), explain their expertise to the court to assist the court in determining if they should be considered as an expert. During that process, the party who challenges whether the court should consider the physician an expert will be entitled to question the physician on their expertise.
Once the court has determined that the physician qualifies as an expert, they are usually given a set of facts resembling the actual case and is then asked hypothetical questions based on those facts. The expert provides their professional opinion based on their examination of the patient, their review of medical records and/or their knowledge of similar previous cases.
The role of the expert witness is not to act as an “advocate” for a party to the legal proceeding. The court may question an expert witness’s impartiality if they are viewed as advocating for one or the other party by going beyond providing an objective opinion based on the factual scenario(s) put in front of them.
Again, a non-treating physician is under no legal obligation to agree to act as an expert witness.
The fees payable to an expert witness are generally a matter for negotiation between the expert witness and the lawyer seeking the expertise. In addition to arranging compensation for time spent in the courtroom, physicians should also arrange compensation for examining the patient, preparing medical reports, travel and waiting time, meetings and/or discussions with lawyers, and any out-of-pocket expenses that may be incurred. The physician should also ensure that their fees are not contingent on being deemed an “expert” because, as noted above, this determination may only be made in court after a considerable amount of time and effort has already been expended by the physician. These payment arrangements should be made in advance and should, whenever possible, be confirmed in writing.
Where an expert witness has been asked to testify on behalf of the Crown in a criminal case, their fees are generally paid according to a set schedule of fees, which will vary from time to time. However, nothing prevents expert witnesses from seeking reimbursement above these amounts.
Payment arrangements should be confirmed prior to agreeing to act as an expert witness, and the lawyer/law firm should confirm they are responsible for the payment of fees (and not the client).
There is no schedule of fees for providing services as an expert witness. As a general rule, you should ensure your fees cover your “opportunity cost” for taking time away from other productive duties. For determining your hourly rate, please see [link to Section 8: Determining Your Hourly Rate]. Using your hourly rate, here are suggested calculations for some services commonly provided by expert witnesses:
|Expert testimony in court (to be applied to the greater of the actual time or the requested time||Agreed hourly rate|
|Cancellation of court appearance with less than 48 hours notice||4 hours (half day) at agreed hourly rate|
|Preparation for court appearance: meetings, telephone calls, exchange of correspondence with lawyer||Agreed hourly rate|
|Travel time, waiting time for court appearances||Agreed hourly rate|
|Mileage expense for travel to/from court appearance||$0.50/km|
|Photocopying/administrative costs for reproducing records/documentation||See Section 16 — Transfer of, and Access to, Medical Records|
|Out of pocket expenses for meals, accommodation and travel||Physician’s cost|
An expert witness will rarely receive a subpoena – a court order compelling attendance in court – as they have agreed to act as an expert in advance and have secured satisfactory remuneration for this expertise.
Treating physicians are often served with a subpoena (or a “summons”), a court order requiring them to appear as a witness in court.
The subpoena will set out the time, date and place of the required attendance. Usually, the subpoena also directs the physician to bring “any documents or materials which are relevant to the action”. Upon receipt of a subpoena, it is recommended that the physician contact the lawyer who served the subpoena to answer such questions as what documents/materials they should bring with them to court, and what time they are actually expected to be needed in court.
The physician may have a fully booked slate or office on the date indicated in the subpoena. This can also be discussed with the lawyer who served the subpoena. For scheduling matters, legal counsel and courts will generally be as reasonable as possible in trying to accommodate schedules and provide advance notice of when actual attendance in court is necessary. There is often flexibility regarding the date and time indicated on the subpoena (which is usually the start of the first day of the trial).
Trials move at a very different pace than a typical day in a clinic or on a surgical slate. Even where you have been given a time to attend, the witnesses testifying before may take more time than expected, or there may be a legal issue to be resolved. Generally, you cannot enter the courtroom until it is your turn to testify, so bring along reading material and be prepared to wait.
A subpoena is a court order to attend at a trial. Serious sanctions can be imposed if you ignore a subpoena. Without proper confirmation from the lawyer who served the subpoena, preferably in writing, you should never assume that your attendance is not required.
A subpoena is not an authorization to breach patient confidentiality. A subpoena alone does not grant the physician authority to speak to the lawyer who issued the subpoena, nor to agents such as police officers about the contents of patient records or any aspect of a patient’s care before appearing in court. A physician may only discuss patient care with or provide patient records to a third party if they have their patient’s authorization to do so, or if they are required by law (such as through a court order explicitly requiring them to do so).
Only once the physician attends in court, is sworn in and directed by the judge to answer questions will they be protected from an allegation of breach of confidentiality.
Court schedules and witness requirements can change quickly. Sometimes subpoenas are served only as a precautionary measure and you may not be needed as a witness after all. Sometimes the case settles or for some other reason does not proceed and the parties may forget to advise you. For this reason, whenever you are called upon to testify it would be wise to contact the lawyer who issued the subpoena a day or two before the attendance date to determine if your appearance is still required.
The party who has subpoenaed the treating physician to testify in court is only obligated to pay the physician the attendance fee prescribed by statute (currently less than $30.00 per half-day of attendance). There is no reason that the physician cannot attempt to negotiate a more reasonable level of compensation. The physician should contact the lawyer requesting their attendance in advance to seek agreement on an attendance fee. Of course, the degree of success in this area will vary, and the physician may have to accept only the prescribed attendance fee.
Occasionally, the boundary between a treating physician and an expert witness becomes blurred. In cases where the treating physician has provided ongoing care to a patient, a lawyer may request, in addition to providing testimony in court, the physician also provide services such as a further examination and/or diagnostic testing of the patient for court purposes. The physician may also be asked for a medical report and opinion concerning the patient’s recovery, or to meet with or speak on the telephone with the lawyer for the purpose of preparing for trial.
Such services would normally be considered to be those provided by an expert witness. As such, the physician should request compensation as an expert witness. If the lawyer requesting such services refuses to pay, the physician who has been previously served with a subpoena is still legally obligated to attend court to provide testimony and bring all documentation cited in the subpoena. However, if the lawyer will not agree to pay a reasonable fee for the other services that have been requested, the physician is under no obligation to provide those services.
Where a treating physician is asked to testify in court, but is not served with a subpoena, they should confirm payment arrangements with the lawyer who has made the request in advance of the court appearance.
For guidance on providing reports and forms in a timely manner, click here.