I often have receive calls from
MediGraph Subscribers wanting to discuss the subject of expert witness
testimony. Callers want to learn of my experience in this area to help prepare
for this task and address the uncertainty surrounding this responsibility.
Because this area of PT often goes un-addressed I will present some thoughts
from my experience with appearing as an expert witness, including the
As physical therapists it is reasonable to assume that we may have to testify in
a proceeding involving a patient. This statement is especially true when
treating work related injuries, personal injury patients (motor vehicle
accidents, slip and falls, etc.), or other injured patients where liability is
an issue. Having appeared as an expert witness and having coached others that
have appeared, testifying under oath can be intimidating on the first
encounter. The uncertainty of not knowing what to expect is the most disturbing
aspect of this task for those that will appear for the first time.
For clarity, the party that is suing (usually the patient) is the plaintiff.
The party being sued (usually the insurance company) is the defendant. When
appearing as an expert, one side is your ally and the other is your adversary.
Usually, but not always, the party that pays for your appearance is your ally,
as they believe your testimony will support their position. The goal of the
attorney that is your ally is to establish your credibility. The goal of the
attorney that is your adversary is to destroy your credibility. Sadly, the
authenticity or factual nature of the case is often not as important as
counsels'' ability to make you appear believable or unbelievable. For
example, in one of my first appearances as an expert witness I was testifying on
behalf of a patient that I treated (the plaintiff) three years prior to my
testimony (it took three years for the case to be heard in court). The patient
was asked in a prior deposition, "Mr. X, how many times did you receive traction
or exercise for your condition?" This patient replied, "I don't
remember exercising or traction." As stated previously, the patient, a
laborer, was treated three years prior to his deposition. He could not recall
receiving therapeutic exercise or traction. When my testimony was rendered,
counsel asked me:
Counsel: "Are these your records?"
Counsel: "Is this your bill?"
Counsel: "You claim that you provided traction and therapeutic exercise to Mr
X on 12 occasions."
Counsel: "But under deposition Mr. X denied ever receiving those treatments.
Are you certain that you provided these treatments?"
Consel: "How can you be sure when the patient has no recollection what so
TKane: "Because my documentation reflects those treatments."
Counsel: "So, because these treatments appear in your notes, we are supposed to
believe that you gave these treatments even though Mr. X states he
cannot remember what traction or therapeutic exercise is?"
At this point, plaintiff's attorney (the patient's counsel) objects, stating
that Mr. X is not an educated man, he is not a physical therapist, this
treatment was rendered three years ago, to ask Mr. Kane to asses Mr. X's
ability to recall, blah, blah, blah. The point here is to illustrate that
opposing counsel will attempt to discredit your testimony and destroy your
credibility no matter how truthful your statements or intentions. This kind of
tactic is especially true in a jury trial where the members of the jury are far
more impressionable than an arbitration hearing before a judge or panel, where
the audience is not so easily swayed by such tactics. After gaining experience,
my answers to this type of question changed. I would respond truthfully but
with greater understanding of how this portion of expert witness testimony
works, preventing myself from falling into that well placed trap. This is just
one example of what expert witness testimony experience. There are many others,
including those surrounding FCE testimony.
Regarding fees for expert witness appearances, my fees varied depending on the
situation. There are a few variables to consider, including:
- How complicated is the case? Testimony in a straight forward history
(fracture, post surgical rehab, etc.) will require less preparation time than a
more complicated course of treatment. Your prep time should be reflected into
- Where will this testimony occur? Fees vary based upon such variables as a
video deposition in my office, in the attorney's office, before an
arbitration panel, or before a jury?
- How much will it cost to pay someone to handle my patient load when I am
Generally, the minimum fee that I charged for my testimony was $750. For a
Deposition in my office I charged $750-$1000. For a deposition in an
attorney's office I would charge $1000-$1250. For a jury trial
appearance I will charge $1500-$1750. Jury trials usually involve more delays
and waiting. This degree of uncertainty from a time perspective when compared
to the other areas presented above should be considered.
I hope this brief overview proves helpful. As with other issues from
MediGraph Subscribers, my
consultation in this area as well as any other areas is free of charge. Feel
free to call.
Tom Kane, PT