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Can an Expert Witness Appearing in a Medical Malpractice Case Charge a Contingency Fee

In a medical malpractice case in New York, can the medical expert who comes in to support your case ask for a contingency fee as a payment? A contingency fee would mean a percentage of the settlement or compensation awarded to you by the jury.

Medical Expert cannot Charge a Contingency Fee

The answer is, no, the medical expert cannot charge a contingency fee for testifying in support of your case. Contingency fee would mean that the doctor would only be paid if you win your case. If the doctor were to charge contingency fees, it would mean that he has vested interest in seeing that you win your case. This would mean that the doctor would do everything possible and say almost anything in order to see you come out on top even if that means defying medical logic.

This is not a situation the legal system wants to put medical experts in and they would rather avoid that type of situation entirely.

The Defense can Destroy the Witness's Credibility

In such an instance, it will be very easy for the defense attorney to turn around and destroy such a doctor's credibility at the time of trial. Here is an example of what would happen when the defense attorney is cross-examining such a doctor during the trial.

Lawyer: Doctor, you are being paid for your time here, is that not true?

Doctor: Well, I am not being paid for the time here, I am being paid for the time out of my office, away from my patients to come into court.

Lawyer: Ok doctor, but you are still being paid, correct? The plaintiff is going to pay you money to come to court and explain to the jury your opinions on this matter right?

Doctor: Yes.

Lawyer: How much are you being paid today? Are you being paid on an hourly rate?

Doctor: No, I am being paid a contingency fee.

Lawyer: Really, what is that?

Doctor: I am going to get ten percent of whatever the client wins in this case.

Now, it is easy for the lawyer to show to the jury that the doctor has a stake in winning this case. During the closing arguments, the defense attorney will turn to the jury and explain how this doctor is going to say virtually anything in order to get this case won, because if the case is lost the doctor is paid absolutely nothing. The lawyer will show to the jury that because of the vested interest of the doctor in the case, he has a strong reason to be biased. This will destroy the doctor's credibility and undermine your case.

Best Practice

Therefore, the best practice in a medical malpractice case or any personal injury case, is to pay the doctor or expert witness an hourly fee. An hourly fee can be paid for reviewing your medical records, discussing the case with your lawyer, and for coming into court to testify on your behalf. This way, the doctor does not have any stake in the outcome of the case. He will be paid whether you win or lose the case, and the defense lawyer cannot raise the issue of credibility in this manner or legal frame of view. 

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