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Fact Witness vs. Expert Witness: Differences in Responsibilities and Pay

Doctors in our online physician communities are often called upon to provide testimony in legal proceedings, such as cases involving malpractice claims, product liability, or personal inquiry lawsuits. If a physician has a connection to the case and has previously seen the patient or is familiar with the case in some capacity, but is not a named defendant, the line between a fact witness versus an expert witness can be blurry. If asked to testify, it’s important to understand the difference, as each role is different in  purpose, scope, compensation, and legal obligations. We cover this below.


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The differences in characteristics between a fact witness vs expert witness, including qualifications required, basis of testimony, compensation & more


What is a fact witness?


A fact witness is someone who testifies about firsthand accounts of what they personally observed or did. For doctors, this is typically because they’ve had clinical interactions with a patient.


As the name implies, fact witnesses are asked to testify about what they saw, heard, did, or documented. The scope of the testimony is typically limited to the facts of what they personally witnessed in the case. Fact witnesses focus on their treatment and/or involvement, without offering medical opinions outside of their direct observations. They do not provide a medical opinion as a probable cause, and they don’t review any material outside of their own medical records for the patient.


This is the most common type of witness typically called during a trial. You may be subpoenaed to be a fact witness and provide your account as it relates to the fact. Generally speaking, you cannot refuse to provide testimony if you’re subpoenaed to be a fact witness, and you cannot ask for payments commensurate to expert witnesses unless the scope of what the attorney is asking you to do falls more into the category of an expert witness (in which case you should point that out to them and ask to be compensated accordingly).



What is an expert witness?


Expert witnesses are experts brought in by attorneys on the case to provide their expert opinion regarding the case.


They typically do not have firsthand knowledge of the case and did not witness the incident that led to the lawsuit. An expert witness is hired by legal counsel to offer professional, unbiased advice on the case evidence presented to them. They are often called in to provide clarity on complex subjects, helping explain the medical and legal intricacies of the case to the jurors, who do not have a medical background.


They are typically retained and paid for their time and involvement in reviewing the case and for providing their expert opinion.


Expert witness work is a popular side gig for members of our online physician community. If you’re interested in this type of work, you can explore our related resources:


Expert testimony is held to a higher standard in order to be deemed admissible for consideration in the case.


The identities of any expert witnesses must be disclosed, and expert witnesses typically provide a comprehensive written report that outlines a summary of their review of the case materials and provides a basis of their expert opinions drawn.



Fact witness vs expert witness: limits on a treating physician’s testimony as a fact witness


The distinction can limit what a treating physician can and should say as part of their testimony. For example, a fact witness can state that:

  • They diagnosed the patient with a torn rotator based on a physician exam they conducted and seeing the results of an MRI scan.

  • They prescribed physical therapy and scheduled a follow up appointment with the patient.

  • The patient reported continuing pain and limited range of motion at their follow up.


A fact witness, however, does not have to:

  • Speculate as to what caused the injury

  • Predict what future treatment the patient may require beyond a treatment plan already provided to the patient in question

  • Provide an opinion on any potential treatment or possible malpractice by another treating physician the patient saw


If a treating physician called as a fact witness begins to offer testimony outside of the accepted scope, their testimony can be treated as expert testimony and deemed inadmissible for not being properly disclosed and documented as highlighted above.


Additionally, if a lawyer is asking you as a fact witness to do things that an expert witness does, you can ask them to pay you as an expert witness.



What do fact witnesses get paid?


This is a grey area that is in part jurisdiction dependent. Compensation can range from nothing to including payment for lost wages. Generally speaking, many fact witnesses will be offered an ‘appearance fee,’ or ‘attendance fee,’ which will provide a (very minimal) rate per day or hour (often less than $100 for the day). If there is travel involved, including hotel, transportation, etc, this may be covered as well. Some jurisdictions may be able to pay you for time spent preparing.


Some jurisdictions will pay you for the opportunity cost of lost wages, but this can be hard to ask for as a physician.


Lawyers will tend to stay well within precedent in these situations because it can discredit testimony or cause legal issues if it seems that you are being paid for your testimony when you are classified as a fact witness. Being paid for testimony is not allowed, nor is being paid based on the outcome.



What do expert witnesses get paid?


This is a lot less regulated, and essentially you can get paid what the market and your level of expertise permit. Many physicians get paid $500/hour or more doing this line of work as a side gig, with varying fees depending on the exact activity.


Learn more about what expert witnesses get paid.



What treating physicians should keep in mind when called to testify


While in principle there are key distinctions between the roles and responsibilities of fact witnesses vs. expert witnesses, in reality the courts have not always remained consistent and gray areas may exist where a treating physician isn’t sure what rules apply.


When providing your testimony as a fact witness, an attorney may ask you for your medical opinion outside the scope of your personal observations or records with the patient. This isn’t to say that you cannot answer their question as presented, but it does present a gray area for fact witnesses.


When preparing for a testimony, it’s best to work under the guidance of the attorney who contacted you for the case, as they should help prepare you for what to expect. A few additional points to keep in mind as a fact witness:


  • Ask for their guidance for any questions or topics the opposing counsel may present that you should avoid, and how to respectfully and appropriately address those questions if they arise

  • Review your records in advance to help refresh your memory of the case

  • Focus on your direct involvement with the case: the diagnoses you made, treatments you provided, what the patient directly told you, and what you documented

  • Do not analyze, interpret, or give opinions on the case when asked about your interactions with the patient

  • Only answer the exact question asked of you

  • If you aren’t sure of the specific question they are asking, ask for clarification before responding

  • If you don’t know the answer to a question they ask, or you don’t remember, don’t be afraid to say so



Conclusion


Fact witnesses and expert witnesses have different roles in a legal case, and they approach a case from two different perspectives. A fact witness is typically a treating physician who had direct interactions with a patient and provides their firsthand account of their interactions and treatment. An expert witness is typically a paid expert hired by an attorney in the case without any personal knowledge who reviews the case materials and provides a comprehensive summary, as well as an expert opinion, which is well documented in an official report. Physicians called as fact witnesses who provide opinions and speculate outside the scope of treatment may have their testimony thrown out as inadmissible.



Related resources for physicians


Explore expert witness work:


Explore resources for physicians involved in legal cases:


If you have questions on topics we haven’t covered yet, reach out to the hive mind in our online physician community. 


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