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The Meat and Potatoes of Medical Malpractice Costs

Summary: Expert Witnesses – The Expensive Necessity in Medical Malpractice Lawsuits

Remember the song “Mammas Don’t Let Your Babies Grow Up To Be Cowboys” by Ed Bruce?  One part of the song’s lyrics is as follows, “Mamas’ don’t let your babies grow up to be cowboys.  Don’t let ’em pick guitars or drive them old trucks.  Let ’em be doctors and lawyers and such.”  I agree, but I would take it one step further.  I say, let them be expert witnesses.  They will be set for life.

As a practicing medical malpractice attorney, I only work with the most highly qualified and competent doctors to obtain opinions regarding the necessary elements of medical malpractice: (1) standard of care; (2) causation; and (3) damages.  These doctors have all graduated from some of the most reputable institutions and are board certified in their specialty.  I have the upmost respect for (most) all of them.  However, wow, are they expensive!

The following examples do not include any additional costs:

  1. We retained a board certified urologist to review a phalloplasty case who charged almost $36,000.00.  The urologist’s fees were $500.00 per hour for any time expended whether it was to review records, preparation, research, reports, travel, conferences, telephone time, or the like.  The time was pro-rated to the one-quarter hour.  The urologist’s deposition fee was $650.00 per hour (which, thankfully, was paid by opposing counsel) and $650.00 per hour for attendance at trial.
  2. We retained a board certified psychiatrist to review a case who charged over $6,000.00.  Although that might not sound like a lot, the problem was that the psychiatrist had given me a positive opinion prior to his deposition and said the exact opposite during the deposition.  You can imagine how happy that made me and, yes, he still insisted on being paid, seemingly oblivious of the fact that his services were worthless.
  3. We retained a board certified neurosurgeon to review a case.  The neurosurgeon’s fees were $1,000.00 per hour for medical record review, radiological studies, medical report preparation and phone consultations.  The neurosurgeon’s deposition fee was $1,500.00 per hour with a 2-hour minimum charge.  The fee for one half day of trial testimony in California was $7,500.00, one full day of trial testimony in California was $15,000, and one full day of trial testimony out-of-state was $15,000.00.  The hourly rate for traveling by airplane was $1,000.00, and by private car was $1,500.00.  Again, this guy is a neurosurgeon (someone who performs, among other things, brain surgery) and he is worth every penny.  However, that is a lot of money.

In medical malpractice cases, in order to bring a viable lawsuit against a health care practitioner (“HCP”), be it a medical doctor, doctor of osteopathic medicine, nurse, psychologist, dentist, podiatrist or ….(the list is quite long), an expert has to be retained.  Whether or not a HCP has performed below the standard of care is not something that a lay person (a person without professional or specialized knowledge in a particular subject) would know.  Therefore, without exception (or none that I know of), an expert of the same pedigree as the potential defendant has to be hired to review the medical records and opine whether there has been malpractice.  See Post #25: Just Because a Doctor’s Actions or Inaction Fell Below the Standard of Care, It Does Not Mean That He or She Was Negligent.

Most of my clients have been (and continue to be) astounded by the cost of pursuing a medical malpractice lawsuit.  Unless the client can qualify for a fee waiver, it costs $435.00 to file a lawsuit in the San Diego Superior Court if pursuing an amount over $25,000.00.  There are then the costs of serving the complaint, obtaining medical records, and deposition transcripts that can cost anywhere from the low $100s to $2000 or more each.  If depositions have to be taken out of town, more than a car ride away, there are airline fares, hotel charges and meals for one of us to attend (unless it is the type of deposition that it is not necessary to appear in person and can do so by Skype or the like).  There are also miscellaneous fees such as overnight mailings, filing fees paid to the court for hearings during the course of a lawsuit such as fees for ex parte hearings, and fees paid to litigation support services who file pleadings for us with the court.

However, again, the bulk of the costs are the fees paid to expert witnesses.  Although defense counsel (meaning the insurance company) has to pay for the hourly rate for the time spent deposing our experts, the remainder of the time (preparing for the deposition by, among other things, re-reviewing records and doing research) is a cost to plaintiff.  Similarly, it is a cost to plaintiff for the hourly rate for the time taken to depose the defense experts.  The difference is that the remainder of the time charged by defendant’s expert witness, that is, reviewing records, preparing reports, etc. as stated above, is paid, not by the defendant but by his insurance company.  Thus, the defendant has a war chest, so to speak, whereas the plaintiff, not so much.

Benjamin Franklin said there were only two things certain in life: death and taxes. I would have to add expert witnesses, as long as medical malpractice cases as well as other lawsuits that require experts are filed.  So, again, become an expert witness or, short of that, a funeral director.

Published By: Patricia I. James, Esq.

**No portion of this Post is intended to constitute legal or medical advice. The views expressed are solely those of the author**