Compulsion of Expert Testimony

I am a treating physician but not named in the lawsuit — how much testimony can I be compelled to give in response to a subpoena?

Wisconsin courts recognize a broad qualified privilege for expert testimony known as the Alt privilege, which holds that you cannot be compelled to give expert testimony absent a showing of compelling circumstances by the person seeking your testimony.  However, you can be compelled to give fact testimony or, in other words, testimony regarding your observations and actions as a treating physician.

The Rule in Wisconsin

Generally, no person has a privilege to refuse to give evidence.  This is because parties involved in litigation are entitled to evidence held by any person, unless the person from whom the evidence is sought has a privilege not to provide such evidence.

If you are a treating physician, you can be compelled via a subpoena to testify as a fact-witness.  As a fact-witness, you must testify to your observations, decisions and actions taken in the treatment of the patient.  Note that you can bill for your time spent testifying, so long as you are not also a named defendant in the case.  For more information on billing for your time, please see the “Billing for Medical-Legal Services” section.

Pursuant to the Alt privilege, however, you cannot be compelled to give expert testimony.  Expert testimony requires scientific, technical or other specialized knowledge that is not within the range of ordinary training or intelligence.  If you are subpoenaed to testify as a fact-witness or treating physician, you are testifying as an expert in the literal sense simply by virtue of your position as a physician.  You are not, however, necessarily being asked to provide an “expert opinion” in the legal sense.

How do I know if I am being asked to provide “expert testimony”?

Expert testimony is testimony beyond the scope of your own observations, decisions and actions.  Questions that intend to elicit expert testimony may include:

  • How a reasonably prudent physician would have handled a patient’s care;
  • Whether another physician met the standard of care in his or her treatment of the patient; or
  • Whether some act or omission caused the patient’s injuries.

You may not choose to give expert opinion testimony in response to some questions, but not others, as it could be argued that you have waived your Alt privilege by providing any expert testimony.

Can I ever be compelled to give expert testimony?

Absent a showing of compelling circumstances by the person seeking your testimony, you cannot be compelled to give expert testimony.  Additionally, the party seeking your testimony must present a plan for reasonable compensation.  If you choose to voluntarily provide expert testimony, you also have the right to be compensated.

If I testify will I violate my duty of confidentiality to my patients?

Note that regardless of whether you are served with a subpoena for your testimony, you still have an ethical duty of confidentiality to your patient and you should not discuss confidential patient information, even with the patient’s own attorney, without a waiver from the patient allowing you to do so.  Similarly, you are prohibited by law from releasing your patient’s medical records without either an authorization signed by the patient or a court order.  Please see the section discussing the use of a subpoena duces tecum for more information about the release of patient records.

Is the law about compelling expert testimony the same in every state?

No.  Often, physicians who practice at the University of Wisconsin Hospital and Clinics (UWHC) and Meriter Hospital are treating physicians for patients who do not reside in Wisconsin.  It is important to know that the laws in other states governing expert witness testimony may differ from Wisconsin law.  For instance, in Illinois, a treating physician may be compelled to render an expert opinion when such an opinion was developed in the course of treating the patient.  Nonetheless, if your treatment of a patient took place in Wisconsin, you are subject to Wisconsin law and, thus, you are protected by the Alt privilege.  This is true no matter where the patient resides or where the lawsuit was filed.  In those instances in which an attorney from another states seeks to compel your expert opinion testimony, OLA will address the Alt privilege with him or her on your behalf.

How do I bill for court appearances or other activities associated with medical-legal services?

Physicians may bill for court appearances and other activities associated with medical-legal services, including depositions, legal testimony and medical chart reviews.  If the physician is providing medical-legal services in his or her capacity as a treating physician, Wisconsin law authorizes payment of a nominal fee to the physician. However, it is within the discretion of the party seeking the medical-legal services of a treating physician to pay the physician’s hourly rate rather than the statutory rate.  A physician may also collect his or her hourly rate if the physician is asked to provide testimony as an expert witness.  Preparation of invoices and billing of the party requesting the medical-legal services shall be the responsibility of the clinical department.