Standard Clauses for Clinical Trial Agreements

Testifying As A Witness

MCG faculty and staff are often asked to testify as witnesses, usually regarding a patient's care. The answers to many of the frequently asked questions are given below, but please call The Legal Affairs Office at 706-721-4018 should you need any additional advice.

1. Do I have to be a witness? If you are subpoenaed, yes. In Georgia, a court can subpoena a witness with as little as 24 hours notice, so it is important that you do not ignore a subpoena (http://www.mcg.edu/Services/Legal/respond.htm). We recommend faxing any subpoena you receive to us at 706-721-8014, and we will phone you back with our advice.
2. When I am testifying, does that time count as work time or leave time? Usually work time. Paid court duty leave is given whenever you are testifying about your official duties (such as treating a patient), and whenever you are compelled to testify by a subpoena or court order, even if the case does not involve MCG. If you are testifying as an expert witness, then you will not be given court duty leave.
3. What is an expert witness? An expert witness testifies concerning their expert opinions, rather than the facts of a case. This line can become quite blurred when the witness is a physician or other professional, but as a general rule, if you are called to testify about your observations of a patient, or the diagnosis, treatment or prognosis of a patient, then you are a fact witness, not an expert witness. Expert witnesses normally have no personal knowledge of the facts in a case. Instead, they are hired to review whatever records and information is available, and to render an opinion based on their expertise.
4. Can I charge a fee for being a witness? Usually not. You may be entitled to a nominal witness fee and reimbursement for out-of-town travel, but only expert witnesses can charge a professional fee. An expert witness fee can be whatever the attorney hiring you is willing to pay. At a minimum, the fee should be equivalent to your patient charge for a similar length of time. Expert witnesses can consult and testify as an outside activity, or as part of their official MCG duties. If the work is done as part of your official duties, then you may review materials and testify during your normal working hours, but the fee must be paid to MCG (or PPG, if you bill through PPG). If you wish to be an expert as an outside activity, you must obtain approval from your Chair and the time involved cannot be MCG work time. The use of annual leave is often necessary. However, you may personally keep any fees. Remember that these amounts are income to you, and that you must report them on your tax returns.
5. What is a deposition? A deposition is an out-of-court session where a witness testifies under oath. Depositions are transcribed by a court reporter, and the attorneys and parties involved are usually present. Your testimony at a deposition can be admitted at a later trial. Depositions are designed to give the attorneys a chance to speak on the record to the witnesses in a case before trial.
6. Can I obtain advice on being a witness? Yes. The attorneys in our office will be happy to speak with you, and we can also send you some brief articles on being a witness which may be helpful. If MCG is not a party to the case where you are being asked to testify, our attorneys would not normally need to be present during your testimony. However, you may request that we come with you if you feel that is necessary

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July 24, 2007