Hiring the right medical expert witness is a crucial element to many medical malpractice and personal injury cases. Thankfully, the ability to conduct depositions and other legal proceedings over Zoom and other video conferencing platforms has allowed litigation matters to move forward during the COVID-19 pandemic. The flexibility allowed by remote proceedings has translated directly to lowered costs for expert witnesses, as less or no travel is required to attend. Historically, attorneys have often prioritized convenience, or likely more accurately, the cost savings allowed by proximity when selecting expert witnesses for a given case. With clients to please, it can be hard to justify retaining an expert who would require a plane ticket and accommodations for any medical examination, deposition, and/or trial. Since the onset of the pandemic, however, many experts have transitioned their practice to be fully remote, thereby affecting the bottom-line cost of a case. The cost savings allowed by remote interactions and proceedings should affect an attorney’s selection of medical expert witnesses as well.
A year and a half ago, it would have been hard to imagine how a Compulsory or Independent Medical Examination (CME/IME) could be conducted via Zoom. However, millions of physicians, physician assistants, nurses, and rehabilitation providers have demonstrated the ability to competently provide healthcare services, including conducting examinations and making diagnoses, via telehealth. Today, a medical expert witness should be able to do the same, and many already have. Evaluee interviews were often previously conducted in the home, and now they are conducted via telephone or video conference. Depositions which may have previously required travel reimbursement now do not. All of these factors lower the cost of expert witness services for a case; what to do with the cost savings is the question.
The most obvious answer may be to lower the overall cost of the lawsuit, and there are instances where that may make the most sense, especially if the client has a hard and fast budget. However, consideration should be given to using that savings to retain the expert witness best suited to the individual case with less regard to a particular geographic location. The savings accrued from lack of travel may be invested into the retention of an expert witness with more experience, and therefore more efficiency, specialization, education, or training. These experts may come with a higher hourly rate, however their unique qualifications may be exactly what the case needs. Additionally, it allows for a wider pool of expert witnesses which can reduce the perception that an expert is contracted too frequently by a particular attorney or firm.
Because so many aspects of litigation are being conducted remotely, expert experience and comfort levels with conducting medical evaluations and examinations remotely should be an important consideration when choosing the expert to retain. An attorney should inquire as to whether the expert has previously conducted a CME or IME in the course of business since the onset of the pandemic, or whether they have been a practicing clinician throughout the pandemic. Practicing clinicians will have invaluable on-the-job experience in conducting medical evaluations via video conferencing platforms, which is a necessary skill for medical expert witnesses today.
It bears noting that not all cases are well suited for remote proceedings. Some jurisdictions may have limitations on the use of virtual examinations. There are also complex cases, especially those involving neurological injuries, which would be better served by an in-person examination. That said, there are also benefits to the virtual examination or evaluation beyond just cost savings. The evaluee may be more comfortable being in their chosen environment versus a medical office and may be more relaxed with the elimination of fears related to exposure risks.
When choosing a medical expert witness for a case, it is more important than ever to seek out experts who have remained abreast of changing technologies and software platforms that allow for not only remote depositions, but remote examinations and evaluee interviews, and who have experience with remote evaluations. With the costs incurred for travel no longer being a guaranteed aspect of expert witness selection, finding the medical expert witness best equipped for the case at hand is now easier than ever, allowing attorneys to offer their clients higher quality without higher cost.
