Are you getting “value” from your experts?

June, 2011
By Charles A. Pilcher MD FACEP

What is value?

Based on the repeat business I get from numerous defense and plaintiff attorneys, I must be providing you with value. “Value” is defined as quality divided by cost. When I read depositions, it’s apparent that attorneys are not always getting uniform value from their experts. The physicians who choose to participate in our system run the gamut in both expertise and charges for their services. Both testimony (quality) and hourly rates (cost) range from superb to appalling. Thus, “value” is even more variable.

How much does “value” cost?

I recently ran a “value calculation”on my own services, using my charges for the past 20 closed cases on which I have been consulted. Fifteen cases were for plaintiff attorneys and 5 for defense attorneys. Twelve of the 15 plaintiff cases resulted in the attorney choosing not to file a lawsuit. Charges billed for those cases averaged $976.00. For the 3 plaintiff cases in which a settlement was reached, my average billed charges were $2266.00. For the 5 defense cases (all resulted in a pre-trial settlement), my average billed charges were $2155.00.

When one hears of experts charging 3-5 times more than that in retainer fees alone just to look at a case, one has to ask if attorneys are truly getting value from those opinions. Are they getting quality, and at what cost?

The plaintiff attorney reaction:

If you are a plaintiff attorney, you may view these figures as “leaving money on the table.” I find that most plaintiff attorneys are perceptive enough to know a good case from a marginal one. You don’t want to waste your time and your – or your client’s – money on a case that is unlikely to be resolved in your client’s favor. After I have given you my opinion, you are free to seek a second opinion from whatever higher priced “hired gun” you choose, but that has only happened once.  I also always offer to speak with your client about my findings and have done so on several occasions. I believe that because of the value you perceive in my opinions, you are able to serve your clients better. As one attorney has told me, “Every client I see has come to me after a bad medical result. The last thing they need on top of that is a bad legal result.”

The defense attorney reaction:

If you are a defense attorney, you may view these figures as ridiculously low. Defense attorneys are usually spending “other people’s money” to tap published, high-powered, high-priced, academic experts to support your positions. The problem with these experts is that they often have “tunnel vision” as to the standard of care, espousing an approach as “the only way this should ever be done.” These experts leave themselves wide open for a well-reasoned challenge from an experienced clinician with a firm grasp of the actual standard of care in the community. In medicine, there often is “more than one way to skin a cat.” You may also be asking why all 5 cases were settled. In every one, I felt the matter defensible, but insurers chose to settle rather than risk a potentially more expensive jury verdict.

Are you getting value?

In a sense, a good portion of my work for plaintiff attorneys keeps physicians from being sued – and I am proud of that. But when substandard care exists, and it does, I am equally proud of having the courage to speak up on behalf of an injured plaintiff. Similarly, when working for the defense, I provide an opinion based on both the strengths and weaknesses of the record, which I trust encourages aggressive defense or settlement as circumstances warrant.

There is a lot of talk in medical circles and in government about getting value – better quality at lower cost – from our healthcare dollars, by eliminating waste in the system. The same can be said for malpractice cases. In medical practice, patients often make their own diagnoses and demand certain tests and treatments, rather than asking for a learned opinion from an experienced clinician. Some malpractice attorneys do the same. Whether defense of plaintiff, they may think they know more than they do and are willing to pay huge sums to find testimony that supports their opinion – to the detriment of themselves and their clients.

Value is the goal. Are you spending more than you need to obtain an opinion that is of less quality than you and your client deserve? Are you getting value from your experts?

If I can help you answer that question, please consult my CV and contact me. I have undoubtedly worked with an attorney whom you know and can contact for a reference. Word of mouth referrals have allowed me to work with over 100 attorneys in Washington, Oregon and elsewhere in the past 30 years.

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