Insights: Becoming an expert witness (Hint: It’s not quite what you see on TV)

Somewhere along the course of your career as a medical industry professional, you might be called into action as an expert witness in a court case pertaining to your specialty. What should you do, and how should you handle your time on the witness stand?

Frank Cohen, MBB, MPA, serves as Director of Analytics with Doctors Management LLC. He recently spoke to MGMA Sr. Editor Daniel Williams on the MGMA Insights podcast about the positives and potential pitfalls of serving as an expert witness – either when asked to do so, or as a potential complement to your traditional career.

Cohen, who has a long career in medical administration, has worked as an expert witness on cases for healthcare clients for nearly 25 years. He said the reality of life on the witness stand is considerably different than what folks might see on TV shows such as “Law and Order” or in endless clips from expert witnesses during famous (and infamous) televised trials.

What it takes

To serve as a witness, Cohen said attorneys look for folks who “through years of hard work and experience are in a position where they actually become recognized in their field – coder experts, finance and administration experts, or in my case, expert in statistics and analytics. They’re in a position now to provide these sort of expert opinions in a variety of criminal and civil legal proceedings.”

Cohen said an even temperament is essential to working as a potential witness, as are the ability and flexibility to commit the proper time to the specifics of a case. It’s also worth noting that it is paid work, but Cohen said newcomers to the field need to let attorneys know their time is valuable.

Most importantly, experts must be able to write compelling reports on their field of expertise, a legal avenue which has its own vernacular and implied set of rules – right down to the way that a CV should be written to persuade a judge or jury to respect your insight. 

Stay in your lane

Cohen said the age-old TV drama situation of an expert cracking under the pressure of a wily prosecutor does occasionally take place, especially when so-called experts overstep their body of knowledge. As a result, he advises potential witnesses to stick to what they know. 

“The number one reason that occurs is that an expert decides to opine outside of their area of expertise. And if you do that, you will get caught,” he cautioned. “I think one of my biggest assets to the attorneys I work with is that I know my limitations. I’ve been around this a long time, I’ve come up through the ranks of administration, and I know a lot about coding and billing. But I’m not an expert coder, so the moment that I say something about my opinion about whether a code was appropriate or not, I will be torn to shreds by the opposing attorney. My uncle Tommy was a famous attorney, and he said, “Remember, it’s not about you; it’s about the person you’re representing.” 

Cohen’s broad experience has seen him called into cases ranging from settlements related to network pricing, where he offered analytics expertise, to contract disputes, where he’s served as a biostatistician expert on various FDA trials. For those who are equally interested in sharing their very specific knowledge in the legal arena, Cohen said that expertise can pay off.

“Sometimes it’s work experience. Sometimes it’s education,” he said. “But I think if you’re also doing some research and you’re publishing, that definitely helps.”

Tell it how it is

Cohen said potential expert witnesses also have to understand the amount of time their services may be required for and work out those details before committing to a case. Above that, he cautions neutrality as the best approach in actual testimony.

“You’ve got to be careful that whatever your expectations are, you lay those out to those businesses,” he said. “I tell them what kind of travel I will do, plus what my requirements are for meetings, depositions or those kind of things. Also, my job is an independent arbiter of the facts. That’s what I do. I do my research, I explore the theory, I present my opinions and conclusions based on the facts, and that’s all I do.”

Hear Frank Cohen talk about the ins and outs of being an expert witness starting at the 18:46 mark of this MGMA Insights podcast