Testifying in Court

A truck driver with previously diagnosed sleep apnea causes a fatal car crash due to falling asleep at the wheel. A man dies of a heart attack in his sleep due to undiagnosed OSA, and his family brings suit against his primary care physician for not recognizing the symptoms.

Accidents do happen, but when they involve someone who has been—or should have been—diagnosed with OSA, or a company that has not followed fatigue guidelines, the injured parties are increasingly seeking the expert testimony of sleep physicians to bolster their case in a civil trial for damages. Likewise, the defendants of sleep-related trials may call their own sleep expert to refute the accusations of the plaintiffs. As these sleep cases multiply, more sleep physicians will be called upon to act as expert witnesses.

Jayme R. Matchinski, a health care attorney at the firm of Hinshaw & Culbertson LLP, Chicago, represents many sleep laboratories and sleep physicians around the nation and has used outside sleep physicians as expert witnesses for OSA-related cases.

Sleep physicians do not generally offer themselves to be expert witnesses. Consequently, finding qualified physicians willing to take time away from their practices can be challenging for attorneys. “Sleep medicine is still a very specialized field, especially board-certified physicians,” Matchinski says. “While there’s a good representation of sleep physicians in the practice of medicine, there are still only a select few individuals [willing to act as an expert witness]. Many attorneys look to their bar association to see if anybody else had a good experience with a physician as an expert.”

Sleep physicians who testify as experts are chosen based not only on their experience in similar cases, but also for their experience and reputation in the field. Attorneys will do their due diligence to find the right candidate whose credentials and demeanor would be impressive to a jury. That due diligence may include confirming the expert’s credentials, years of experience, conflicts of interest, and financial interest in a sleep clinic.

A physician who agrees to become an expert witness for one side should expect to review the case and to be able to render a medical opinion based on the subject’s relevant medical history, diagnosis, and treatment. Matchinski says, “A good plaintiff or defense lawyer will spend the time and legwork necessary to understand and to get the physician to understand the points that they need to get across. It’s not uncommon for the lawyer to practice with their expert witness, giving them a set of questions that they’re going to ask.” Additionally, the commissioning attorney may prepare the physician with any anticipated questions by the opposing counsel.

Depending on the jurisdiction where the trial is taking place, there are different requirements for establishing the physician as an expert in the field. Both attorneys may stipulate to the physician being an expert based on credentials and a CV that is submitted prior to trial. In some jurisdictions, the stipulation must be by both lawyers and with the judge’s consent. There may also be instances where the physician may be evaluated on the stand, with both counsel establishing or questioning the physician’s medical school education, fellowship training, board certification, etc. Consequently, it is essential that a physician’s credentials or any other background information be up to date, truthful, and accurate.

Even after being accepted as an expert witness, a physician should be prepared for their credentials and background to be rigorously reviewed by opposing counsel. Physicians must also be prepared to be giving testimony that contradicts the testimony of the opposing side’s sleep expert. In this case, the background and credentials of an expert may be compared and contrasted to the opposing expert’s years of experience and credentials.

Matchinski advises that experts be certain that they have no hidden conflicts of interest or give an opinion that would be harmful to themselves, to their patients, or to their practice. She says, “They need to feel comfortable rendering that opinion and that they’re not seen as a hired gun, as somebody who’s just been paid to render an opinion that either side wants.”

The subjects about which an expert may testify will vary widely. In a case involving a truck driver with OSA causing an accident, a sleep physician may testify about the proper diagnosis and treatment of OSA. If, for example, the truck driver did have a sleep study and was prescribed CPAP, but was allegedly not compliant, the physician may explain to the jury how compliance can be monitored.

The time spent in preparation, testimony, and travel will, of course, vary. Physicians can spend as little as 1 hour or as much as several days including travel time.

Compensation for time spent as an expert witness will also change by jurisdiction. In Illinois, the hourly rate is equal to what a physician could generate in fees in a single hour. Experts are generally credited for their time spent traveling, as well as paid for any related hotel, air, and car expenses. Matchinski usually writes a letter to the physician that sets out the expected time commitment and the estimated reimbursement to be paid.

Once physicians are established as expert witnesses, other lawyers may seek them out for other cases. Matchinski says that physicians should consider how they will be viewed not only by other attorneys, but also by the sleep community. She says that physicians should ask themselves, “Are they drawing the line as far as being a plaintiff’s expert witness or as a defense expert witness? Is it going to impact their reputation in the sleep community as far as being an expert witness for either side?”

Matchinski knows some physicians who enjoy the break from their sleep practice, while others do not wish to repeat their experience. “It’s a matter of choice,” she says.

Tor Valenza is staff writer for Sleep Review. He can be reached at [email protected].