Who Can Be an Expert Witness? An interview with Jordan Romano, MD

Many thanks to Jordan Romano, MD, a board certified internal medicine physician and hospitalist. Dr. Romano has more than 10 years experience providing expert witness testimony and consultation, and he mentors physicians interested in this important and potentially lucrative service. 

During our 30-minute conversation, we discussed the merits of testifying for the defense, plaintiff, necessary training, whether insurance is required, the percentage of cases that go to trial, and many other practical aspects of the expert witness role.

Dr. Romano believes that it is the responsibility of all physicians to uphold the standard of care and support the medical-legal system, imperfect as it may be. He wishes that more physicians were interested taking on the responsibility of becoming an expert witness.

For more information, please contact Dr. Romano at his website: https://medicalexpertwitness.com

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Transcript

0:08

(Transcribed by TurboScribe.ai. Go Unlimited to remove this message.) Welcome to the Art of Medicine, the program that explores the arts, business, and clinical aspects of the practice of medicine. I'm your host, Dr. Andrew Willner. Today, I'm pleased to welcome Dr. Jordan Romano, an internal medicine physician with extensive experience as an expert witness. Jordan's here to tell us whether providing expert testimony and consultation is something physicians should consider. But first, a word from our sponsor, locumstory.com. Locumstory.com is a free, unbiased educational resource about locum tenants. It's not an agency. Locumstory answers your questions on their website, podcast, webinars, videos, and they even have a Locums 101 crash course. Learn about locums and get insights from real-life physicians, PAs, and NPs at locumstory.com. And now to my guest, welcome, Dr. Jordan Romano. Thanks for having me. Yeah, so we have not yet done a program on the art of medicine about being an expert witness. So lots of questions. You know, number one, OEC, OB, and it seems to be very trendy. It's like doctors, this is, I got an email today from someone else wanting to train me to be an expert witness. So let's start with the good stuff. What's the plus side? Why do I want to do that? Well, frankly, I think it's a responsibility of physicians to uphold the standard of care. So this process, whether we like it or not, is going on without our participation or with our participation. And so I'm encouraging as many physicians as feel comfortable to start practicing in this space and offering their services as a medical expert witness because it's essential for us to uphold what we call the standard of care. And that's what any reasonable doctor would do in same or similar circumstances. And so it's incumbent upon us, and the legal system needs our help, needs practitioners' help to look at the case and comment on the case. And I think the more people that help in that process, everyone benefits. Now you're an internal medicine physician. How did you get involved in the expert witness world? Sort of serendipity. About 10 years ago, I was in the workroom, and one of my colleagues was there at the end of the day and looked kind of tired. And I said, hey, what's going on? And he said, I've got a case that I'm not sure I have time for, and we're internists. So that just kind of the language sounded weird. And I'm like, well, where's the patient? I'm happy to go see them. Or how can I help? And he said, wait a minute. How long have you been out of residency? And I told him. And he said, you know what? I think you can do this. Are you free for lunch tomorrow? And it seemed sort of clandestine. I didn't know exactly what he was speaking about. We went out for some pizza, and he told me all about it. And so that's how I got started. I think I know I'm a little daunted by the term expert. In other words, am I an expert to be an expert witness? Yeah, I will say the interesting thing about physicians, we hang out with physicians all day long. So we have that bias, right? We're like, I'm not special, but everybody around us are physicians. And we are experts at what we do. You are able to comment on what it is like to practice in your specialty. To become an expert, most jurisdictions, and by jurisdictions I mean states, have the standard that you need to be in active practice within some date range of when the alleged incident occurred that's in the lawsuit. And so to be an active expert witness, a testifying expert witness, you usually need to be in active clinical practice. And every jurisdiction will have other language around that, how much you need to practice, and that you need to practice in the same specialty or not specialty, DO versus MD. And so understanding the nuance of it, and it becomes nuanced very quickly, understanding that nuance will inform you as to whether or not you can be a testifying expert. But keep in mind, there are also non-testifying expert witnesses. So there are lawyers that need assistance in reviewing a case to know whether or not it's worth pursuing, or how, from the defense side, how defensible is a case. And so those individuals tend to get paid a little less, but they provide their services as, you know, from a 50,000-foot view, what is it like if this case moves forward? And those individuals, again, are retained to comment more strategically than necessarily from a testifying perspective. So based on what you said, I assume that you are also in active practice, is that correct? That's correct, yes. And what would the balance of time be? How much time do you spend as an expert in expert witness work, and how much time in the clinical service? It's different for every expert. Obviously, when you're starting out, that first year I did one case, I think it was the whole year I went just doing that case. And obviously, I'm seeing more and involved with more cases over the years. And the life cycle of cases can be anywhere from they don't pursue the case, or the case stays open and makes it to trial some years later. And so I have cases in any one of those stages very early, and others that are slated to come to trial, but they were from 2020, for instance. So again, I would say that that's the interesting thing about this work, is that over time, depending on the case anatomy, you will have cases at all stages. But still, overall, it's a vast minority of the amount of time that I spend. And I understand you do some training also for physicians, is that correct? Absolutely, yes. So, well, one of the things I was asked every now and then I get these emails from an attorney, or I guess an attorney's assistant, would I be willing to comment? Usually, it's not something that I consider myself to be an expert in. I'm an epileptologist. It might be a whiplash case, or something, a neck or back pain. It's like, yeah, it's neurology. I'm a neurologist. But not something that I see every day. Would it be appropriate for me to take a case like that? I would say it depends. Again, I think in the outpatient realm, I spoke to somebody. I'll give you an example. I spoke to someone, I think it was several years ago, who was in a similar specialty, but this was on the inpatient side. And I simply asked, do you round on patients on the consult service? Do you do a general neurology consult service? Oh, yes, of course I do. Well, there you go. There's your answer. As long as you see those patients, as long as you're familiar with what one of your colleagues would do in same or similar circumstances, then you can comment on the standard of care. Now, obviously, as you get deeper into the case, the level of experience in that niche is going to be scrutinized, but it doesn't mean that you're not qualified to comment on that person's care. But as you're noticing, there's a few different forces at work. There's are you qualified, and do you feel qualified, or do you want to take that case? If you're not comfortable taking the case, certainly that's something that can be fixed by simply putting your name out there and receiving cases that you are qualified in. I guess in the back of my mind, the other hesitation I've had has to do with, well, am I on the defendant's side or the plaintiff's side, and how will I be perceived by my colleagues depending on which side I'm on? Could you comment on that? Yeah. What I would say is you're not on a side. And I think it's something that I commonly hear from individuals not involved in expert witnessing is they feel like they're taking a side. And the answer is you're there as an agent to explain the medicine and explain what, in your case, a neurologist would do in same or similar circumstances. So you're there to explain the medicine. Yes, you're retained by either the plaintiff's or defense side, but you don't have a dog in the fight. And as long as you call a ball a ball and a strike a strike, there's no reason why more – and again, this is a common thing that comes up against individuals from entering this space. I would love to see more of my colleagues, as in physician colleagues, like yourself, involved in the space. And all you have to do is call a ball a ball, a strike a strike, and a prudent plaintiff's attorney, if you're reviewing a case, and you say, you know what? I don't think they breached the standard of care, and here are the reasons why. What are you seeing that I'm not? I don't see anything wrong with that. By the way, when you give that honest opinion, most plaintiff's lawyers, most attorneys are decent individuals, and they don't want to waste their time nor money nor the court system's time or money or their client's time and money. And what you're doing is showing them that this case doesn't have merit, and they shouldn't move forward. And so that's why that calling a ball a ball and a strike a strike is essential. And so that's why I think more physicians hopefully get to hear this message, which is you're exactly who needs to be in this space, because those individuals who are thinking that they have a case are told by some expert, unfortunately, that, yeah, there might be something here, and so they're pursuing it. And the lawyer is wasting their own time, their own money, their client's time and money, and the court system's time. And all you had to do is get up there and have somebody say, you know what, here's what I'm seeing. And I might be wrong, but you tell me why you think there's a case here. Have that robust discussion. And keep in mind as well that a lot of the stuff is not necessarily black and white. There is what they call a discovery process. You could have the records, but then there's also the testimony eventually, if the case moves forward, of the providers that were involved in the case. And so some things are crystal clear in the medical records, but there can be questions that are left over. And so, again, as you're reviewing the case and you could say – and it's one of the skills that needs to be learned and that I teach, which is how do you tell the attorney that you don't think that they're – you don't see a path forward in the case. One of the questions is, listen, based on everything I reviewed, but here's how I could see that there would be a breach. If they didn't do this phone call, if the record showed that there was a phone call and it wasn't acted on, things that wouldn't necessarily be in the medical record, but there might be a text message evidence of. And so that's the sort of conversation that needs to happen. It's very rare in these cases that it's upfront black and white. There's usually a, again, more likely than not type of situation, and you need to educate the lawyer on what a typical practice is like, and they're interested in hearing your honest opinion. And so for that reason alone, I think we should have many multiples of the number of expert witnesses that we currently have because it's – what I just described to you is not an untoward process. It's not an uncomfortable process. It's an honest assessment of records and a situation, and that's something I think that if they heard that, hopefully more physicians would feel comfortable in. A couple questions. One, I have a malpractice insurance, which covers me as a physician. This would be outside of the domain of what my malpractice covers. Do I need some special insurance or professional insurance or liability insurance that covers me if – I don't know. I don't know anything about this world, but presumably somebody could say that what I did was negligent or something like that. Is there some insurance for expert witness people? That's a fantastic question. The answer is yes. You can get what's called errors and omissions, E&O insurance. And what it will cover you in is in the very unlikely event that an attorney says, for instance, you get on the stand and you change your testimony or you – I'm doing air quotes now for those just listening – you cost them the case by not performing well. And so they could sue you for subverting their legal case's efforts. It is extremely rare, and therefore, when you go and look at errors and omissions insurance, it is not terribly expensive if you do want to or do choose to cover it. Lawyers don't necessarily recommend it or not recommend it. And if you speak to any expert witness, as many of them don't have it as do, I think it really just comes down to your own comfort level. Do you have it? I certainly do, yes. OK. I'll take that as a – I mean put your money where your mouth is. I think that counts. Now, from television, I know that when you're asked to testify, the lawyers, the opposing attorney, that his job is to discredit you, and that doesn't look like a lot of fun. Does that actually happen? I just got out of a six-hour deposition. They're rarely that long, I would say, my average deposition, which is, again, testimony under – for those who don't know expert witnessing, usually you look at records, and then either the case is filed or not filed, you're identified as an expert witness. And as you pointed out, the opposing side gets an opportunity, if they so choose, to get your opinions taken under oath, and that's called a deposition. Not every state has that process. Different states have a slightly different process, but generally speaking, there's an opportunity to get your opinions under oath in a – and most of the time these days it's via Zoom. It can be uncomfortable if you're not prepared. There are lots of individuals who walk into those situations completely unprepared. I did years ago in my first one, and that's why I offer mentorship because the – a lot of people just think, well, I just have to answer their questions. But these lawyers are trained in asking questions in certain ways, and there are rules to the game that you need to be aware of and certainly will help you answer questions and anticipate what questions are going to be asked of you because there is a general script, if you will, of the process of a deposition. And the other thing I would say is in terms of discrediting you, for instance, I'm doing something that historically wasn't done. This is a space that a lot of people don't speak about. And so just by you posting this conversation, I'm asked about my podcasts and conversations that I have and have been handed transcripts of conversations that I've had during my deposition as, again, as a way to discredit me when really what I'm doing in these situations is trying to encourage individuals such as yourself to become part of that medical expert witness community because I think it's essential. And I think that not enough people do talk about it, and so you can have misconceptions off of something that, again, isn't easy to find information on. Thanks for that. And how often does a case – I don't know. I say yes. They send me 10,000 pounds of patient documents digitally, I guess is the way it works these days. And I read it, spend a few hours, and then I presume I have to write some kind of report. How often would I just write a report, write a report and talk to the attorney? Talk to the attorney and actually end up in court? So you ask – it seems like a simple scenario, but there's actually a lot of different parts to that. What I would say, the vast majority of time, they just want to have a quick conversation to start to make sure you're the right fit because there is an exchange of money. Most people do charge a retainer, and most experts do charge – if you're a neurosurgeon, $1,000 an hour. If you're a pediatrician, $400 to $500 an hour. But it's not inexpensive to retain expert witness services. So usually you're going to start with a phone conversation, feeling out your expertise level, your comfort level in the expert witness space, and making sure you are a good match. Once you are retained officially, typically that is you looking at some records. If you're a radiologist, it could be you looking at imaging. That can vary. I like your joke about the 10,000 pounds. Sometimes that happens. Sometimes it's just a small period of time. It's an emergency room visit that they wanted to look at, and so they really wanted you to focus on something small, and it's really only a couple hundred pages that they want you to look at. Depending on the jurisdiction, and this is where it gets very nuanced, there are jurisdictions where they don't have depositions, where they only have reports from expert witnesses. And so, for instance, and this is why having mentorship and being educated by someone about how this works is very important. For instance, there are jurisdictions where you will only write a report, and there will be no deposition. And that's why the report that you write is essential because that is a tool that will be used directly as your testimony as you move to trial. There are other situations where they actually – keep in mind, if you're writing a long report, the retained attorney, defense or plaintiff, is spending a lot of money to pay you to read the records and write a report. So I would say it is not seldom but in the low double digits, depending on your specialty, let's say, where you would write a report. There are certain specialties, for instance, radiologists, who may write reports more frequently. Myself, as an internist, hospitalist, it's probably low double digits, somewhere between 10% and 20% of the time am I ever asked to write a report. In terms of cases, again, depending on the specialty, being asked to be deposed and depending on how many cases you take, somewhere, again, between – call it 15% plus or minus 5% in terms of depositions. In terms of cases that you're deposed in that go to trial, it's probably, again, 15% plus or minus of the cases that you're deposed in. So going to trial, although it's kind of fun to watch on TV and you're like, oh, that must happen all the time, it's actually a pretty rare event for medical expert witnesses. If you do go to trial, do you just get a letter and says, okay, trial's in three weeks and 8 a.m. on Monday and you're supposed to be there, how does that mesh with your normal routine or is there some wiggle room there? I would say working backwards, there's always some wiggle room. In this day and age, people can record your testimony ahead of time, although the studies that lawyers have done have shown that obviously being in person is perceived by juries to be beneficial. So keep in mind there's a lot of windup. You have to schedule a lot of things to make a trial happen. There's what they call a docket, so it's the schedule of the courtroom, and that's planned out well, well in advance. And just because you're scheduled a couple months down the road doesn't mean that the case will, and the term, the lingo that's used is will the case go, meaning will it happen when they say it's going to happen. Then, depending on the jurisdiction, and this is where all the nuance gets into it, then there's how long is the trial scheduled for? Is it a two-week trial? Is it a one-week trial? And then that gives you a little wiggle room, and so you could tell the attorney, okay, can you tell me which of those two weeks I can block off? And by the way, when I block something off, I get bookended, meaning if I block off the third week in March, the second and the fourth week in March end up getting filled up with clinical duties. So once I pencil you in, it's more like permanent marker. And so as you get closer to the trial date, it becomes more solid as to when you're going to testify, but generally speaking, there's enough wiggle room that you can have a preference, if you will. But it does come up from time to time. For instance, I have a lovely trip to the Bahamas that I had to cancel because a trial popped up, and they said it's unlikely going to move. They've moved it twice, so the judge is going to likely insist that the trial occurs. And I wasn't privy to exactly why the trial was moved those couple times. It just said, hey, the trial date was pushed, but I had to move on vacation. And so those are real sorts of situations that can occur, but I take this as an honor and a privilege, and I take it very seriously. And I'm retained by a group of attorneys who represent an individual, and I think it's disingenuous of me to sit there and say I'd rather be in the Bahamas than help this individual who I was retained to evaluate their case for. So I'm there to evaluate the case. I'm there to be present when they ask me to be present. And so that meant postponing a family vacation. I wouldn't say necessarily canceling it. Okay, so it does take – it's something that you have to be willing to make a priority to do properly, it sounds like. Well, and keep in mind too, right, the – when I sign up for – to be retained for a case, this is a case I don't even know specifically the one that I'm alluding to. But let's just say it was a couple years ago I was retained. So I didn't anticipate being in the Bahamas two years ago. And so that's the other piece that's interesting and needs to be navigated as you sign up as an expert witness. If you're working 100 percent clinical and you're working 80 hours a week, you're probably not going to have the time to be a testifying medical expert witness. It will be certainly challenging to thread that needle. I've seen people do it. It can be challenging. So it's more appropriate for who? Which type of physician? Well, what I like to say is if you're just out of residency, the most important thing in the first couple years is establishing yourself as an attending physician, just getting used to being an attending physician. You can be an expert witness when you're out of residency, but the vast majority of individuals are further along in their careers than just starting. And so they're individuals who are further along and may have administrative time or bought-down time or just more wiggle room in their schedule. If they're more senior, they're in a position where maybe they're not working the nights and weekends that maybe the younger clinicians are. And they have the ability as being more senior in their practice or in their group to step away for other endeavors. So, Jordan, would you say that having gray hair enhances my credibility or is it a negative? What do you think? It's a fantastic question. I would say it all depends on – I've seen it cut every different way. And the analogy that I'll give is for 13 years, I'd been on staff at Harvard Medical School and I'd been at Mass General. I've been picked because – and I've had this told to me flat out by attorneys. We picked you because you're a young physician and we think a jury would respond to that. And I've had people – I had one case where it was a defense case, and they had me come to the trial. I was ready, like at the hotel, ready to come. And at the 11th hour the night before, she said, we're not going to call you. And I didn't realize this. It's called a pocket expert witness. I didn't follow the case closely. They had essentially two internal medicine experts, and they called this other person. And who was the other person? It was a woman with some salt and pepper hair. And they were playing a demographic game with their jury. Now, does that happen all the time? It certainly doesn't. I think they're really just looking for individuals that can communicate well, et cetera, and explain the medicine. So I'm sort of playing tongue-in-cheek in your question. But there is some validity to that, that some individuals, depending on how they see the case going, may pick someone based on where they trained, where they currently practice, what type of practice they are, and who they are and how they present themselves as a person. So in that case where they didn't use you, do you still get paid, or are you just kind of a loss? No, I was certainly paid to be there. Yeah, absolutely. So I was preparing for the case as if I was going to testify. And keep in mind, things settle at the 11th hour too. I've had trials where I had the flight booked, my bags packed, and the night before they said, we just settled the case. And it's unfortunate because – well, I guess it's fortunate for the process because you're not spending the court's time. But there is a lot of windup and then sometimes a little like, oh, geez, it's unfortunate because you were ready to be put into that situation. It's like if they cancel the test that you prepared for. It's like, wait a minute, I was going to ace this test, and now they decided they're not going to do it. That's right. And I will say from doing this work, you certainly – one way of knowing that you are quite good at this is when you are deposed. When you're faced – not challenged, but when you're in a situation where you're being questioned by opposing counsel, and after that event and maybe after the case settles, opposing counsel or somebody who knew the opposing counsel reaches out to you to retain you, then you know you're doing a good job. And so that's why being in those situations, being in a trial situation can be quite beneficial as an expert witness because others get to see how seriously you take the work. OK, you convinced me. Tomorrow I'm going to be an expert witness. How do the attorneys out there know that they should call Dr. Willner? Fantastic question. What I would say is there's several different ways that you can get your first case. The easiest thing to do is probably just join – is just talk to other individuals. So we're talking now, and we have a connection. Now, that's favorable to you because I have a pretty deep network to help you get your first case. But generally speaking, if you're in social media and you can probably through a quick search find other individuals, and by just chatting it up with them, there are situations that happen quite frequently. For instance, I have a network around me where I'll be busy or maybe that week, several months down the road where I'm at trial. If I get called anytime around that with a case, I'm going to pass that case on to someone else. And so that is going to happen a lot. It's not necessarily the lawyers finding you. You just need to find somebody that can't take a case. The other option that you have is there are lots of companies that allow advertisements. So there's several companies. I advertise with one company, and I have for years. And you pay usually a couple hundred dollars a year or more, depending on the type of ad. And you can just put a small ad describing yourself and your education and your experience level. There are brokers, if you will, that help.