Private consultation in forensic pathology, part 2 — getting started

For this second installment, I’m going to discuss getting started.

The first thing you need to decide is what kind of practice you want.   Most of my colleagues who do private work fall into one of three groups:

1. They are full-time private medical examiners who set up their own offices, hire investigators and autopsy assistants, and contract to jurisdictions to provide forensic pathology services.  These are Medical Examiner offices pretty much like any other office, except they are contract rather than civil service.  This is way out of my league and involves issues I’m not competent to discuss.  I don’t have a clue about building my own autopsy facility or contracting with a jurisdiction to build one for me to use, the issues of employee management, dealing with business law at that level, etc.   If you want to be that kind of entrepreneur, God bless you, but you need to find someone who has done that successfully and talk to them.  I’m not going to address this approach at all.
2. There are full time or near full time private consultants who make consultation their primary business.  Many of them also do Medical Examiner work as a contractor or employee part-time, but it’s mostly to keep their bona fides.  Because of the shortage of forensic pathologists, there have been more opportunities for locum tenens.  I know a few folk who do a lot of locums work and fill in the blanks with private consultation.  These folk also often have to deal with hiring secretaries, technicians, whatever.  Sometimes not.  I’ll talk a little about this setup, but mostly from a cautionary perspective.
3. Most of the private consultants I know do their work as an add-on to their primary job as a full-time Medical Examiner.  Their effort is in the evenings or weekends, and they use vacation time or time off without pay for consultation and private trial.   Many of these folk, including me, have a few years after retirement where consultation becomes more important, but mostly its a sideline.  This option is the focus of these posts.

I’ll start with a few cautionary statements about group number two.  Since I didn’t go that route, I’m not going to be dogmatic, but I personally don’t think the best approach for a *young* pathologist is to set up an independent practice early in his or her career, though it may be fine later on.  It’s important to think about the long term career path of a forensic pathologist.   When you first start out, you may think you know a lot of stuff, and you do — you’ve passed the boards and you know more than 99% of the people around you about your subject.   You are ready to go out there and save the world.

But you don’t know what you think you know. There’s a wonderful clip from the movie “Cold Mountain” in which an older soldier (Inman) had deserted from the Confederate Army near the end of the War Between The States, and was returning home.  He is met by a younger member of the Home Guard (Bosie) in he mountains of North Carolina.  They reach a standoff.  The older man does not want to fight, but the younger man believes he has an edge:

Inman:

It does not end well.

Here’s a story about that.  A few years ago, I consulted on a case where a man was tried for murder of his wife.  His story was that he saw his wife in the morning, took the kids to school, and returned home to find her dead.  He was charged with murder in large part (but not entirely) because his wife was in early rigor when he found her and a forensic pathologist said that it was impossible for early rigor to develop in an hour to an hour and a half.  Of course, the ‘rule’ is that it takes 6-12 hours for rigor to develop, 6-12 hours for it to be stable, and 6-12 hours for it to go away.  But that’s a rule of thumb.  There are a thousand variables that change this.  I’ve seen rigor start within fifteen minutes of death, and I’ve seen it delayed for days.  The man was eventually acquitted, but only after two trials (the first was a hung jury) and months in jail.    I’ve seen another forensic pathologist claim to be able to time an injury to within 30 minutes by evaluating the presence of inflammatory cells in a wound.  I’ve seen a pathologist mistake decompositional change for a burn wound, which led to charges of murder and torture.  And on and on.

If you are a young pathologist, you need to observe these variations, and learn when these rules apply and when they don’t.  A one or two year fellowship barely touches the surface. The best way to learn this is to work at a place that handles a lot of cases and where there are older pathologists who can act as mentors.  And that means working at a ME office (public or private) where there is the time and inclination to mentor younger pathologists a bit. My experience is that you don’t get that kind of mentoring doing locum tenens work. If you go out on your own early in your career, you won’t have the benefit of this, and your chance of making a big mistake goes way up.  You don’t want to make those kinds of mistakes ever, but you certainly don’t want to make them as a private consultant.

My advice, for what it’s worth, is to start off a little more slowly.  Work at a ME office and do some private work on the side.  See if you like it, then make the jump. More, you might meet someone who has a similar interest and form a partnership during this time.

It’s perfectly fine to do full time private work.  But my personal opinion is that it’s better to get some experience under your belt first.

Now let’s focus on what most people do when younger — work full time and do the occasional case on the side.

First considerations:

The first three things you need to do are decide how much time you want to devote to this, you need to learn to say “no,” and you have to decide about what kind of cases you want to take — particularly whether or not you want to do private autopsies.

The opportunities for this kind of work are huge, and once you start doing it, there’s a good chance you will be getting more opportunities than you can handle.  This is particularly true if you are willing to work at indigent rates, because the public defender’s office will likely put you on a list and desperate public defenders will start calling.  It turns out that I’m on lists that I didn’t even know existed,

When you realize that every time you pick up the phone it’s an offer for a few thousand bucks, it’s hard to turn it down. You might feel that if you say “no,” then they’ll never call back again.  Don’t worry.  There are plenty of fish in the sea, and you need to make sure you don’t take on more than you can handle.  Remember that you have a spouse and/or kids or friends you want to go to the beach with or whatever.  Don’t let this eat you up.  So, decide how many cases you want to carry at any given time, and learn to say “no.”

When deciding how many cases to carry, remember that even dormant cases can raise up and bite you.   I normally only carry two or three “active” cases at a time. But… dormant cases often take years.  A common pattern is to have a flurry of activity early on — you look at the medical records, go over the autopsy and investigation findings, do the literature search, write a report, etc.  Then you don’t hear anything for a year.  Maybe the case is dead.  Maybe not.  Then a year later, they’ll call you and want you for a deposition on short notice.  Then you don’t hear anything for another year, and — boom — they want you for trial in God-knows-where.   I got contacted a couple of weeks ago for two trials next month.  Both were over four years old, and I hadn’t heard from anybody about them in almost two years.  Then, suddenly, everybody wants me — -and *both* trials had been scheduled for the same week.  I went from having an almost completely open month to having to juggle three trials, two of which were in conflict.

The third thing to think about is whether or not you want to do private autopsies.  I don’t.   In my entire career, I’ve done two private autopsies, both so-called “second autopsies.”  Here’s the thing.  The infrastructure cost for doing a non-autopsy private case is pretty minimal.  You need a microscope, a way to search and get literature, a place to sit, and time.  If you are going to do an autopsy, you need to arrange a location, histology, toxicology, ancillary testing, etc.   Maybe it’s just me, but I’m not a fan of doing gross-only autopsies.  I’ve seen people have issues with getting tox paid for, etc. Because of the logistics problem, a lot of the second autopsies I’ve seen have been a little incomplete.  I don’t like doing autopsies in funeral homes.  And on and on.

I know there are people who *love* doing private autopsies.  And, you can charge a lot for them.  But they are not my cup of tea.  I hope that folk who like to do private autopsies either comment here or on one of the mailinglists.

Finally, when it comes to case mix, you may well eventually specialize in certain kinds of cases.  I’ll write about that later, but early on, you probably want to experience as many different kinds of cases as you can. So don’t specialize early on. It will make you a better consultant and, more important, a better Medical Examiner in your day work if you get broad experience.  Later, you may want to specialize, but my personal opinion is that you shouldn’t limit yourself too much early on.

So, now you know what kind of commitment to make, and you are ready to start.  How do you get your first cases?

Referrals:

You don’t need to advertise.  You don’t need the million dollar web presence.  You don’t need to splash all over social media.  Just talk to your friends.

Everybody who does this at the sideline level gets more requests for help than they can handle.  I don’t advertise.  I don’t push my service in any way.  But  I get three or four pings from lawyers a month.  I usually turn down three of the four.  I welcome the calls, and I appreciate the referrals I get from colleagues, because there’s a lot of kinds of cases I just don’t want to take, and this allows me to be a little selective in the cases I accept.  But I refer most cases on to someone else, just like many of them were referred to me.

Because most of us only accept a portion of the cases we offered, the lawyers who call us are extremely grateful if we can point them to someone else.  I have a list of a handful of colleagues that I routinely send out when I decline a case.  I have two lists, actually. I have one list of folk in my region.  Some places put restrictions on out of state or out of region experts, especially if the state is paying for it.  I used to get a lot of calls from California, for instance, but don’t any more.  I sent an email to ask why, because I was concerned that I had screwed up somewhere.  They told me that, no, they were happy with my work, but they had received guidance that the jurisdiction would not pay for interstate travel.  I have another, broader, list for folk without those restrictions.

If you are thinking about doing private cases, that almost certainly means that you are working at a place that is friendly to it.  That, in turn, suggests that some of your colleagues are also doing private work.  Ask them for referrals.  The same thing is true for nearby offices.  Talk to your colleagues in the next county or regional office. Talk to your colleagues from fellowship.  Talk to your friends when you have drinks with them at the next NAME or AAFS or regional FP meeting.  You should very quickly start getting the occasional referral.

Don’t worry if it takes awhile.  There are months when I *don’t* get those three or four cases I turn down.  Some cases I might not think are appropriate for a younger pathologist — some cases are frankly pretty risky to take.  But they will come.   Once you get one case and do a decent job, the lawyer you worked for will tell his or her friends.  And you are on your way.

Work with lawyers, not private individuals:

Some folk get all excited about getting an online presence.  They plant flags in social media.  They put up a web page. They advertise with expert witness referral services.  Etc. etc.   All of that is fine (except perhaps the referral service, but I’ll talk about that later).   I don’t do any of that.  I have a blog, obviously, but I don’t focus that on getting business.  What I’ve discovered is that the more I’m “out there,” the more likely I am to get cases I don’t want to take.  If you are doing this full time and are trying to bring in all the possible business you can, that’s one thing.  But if you are just doing this as a sideline, you will be turning down cases soon enough anyway.

My experience is that if you are out there in public-facing media, you are a *lot* more likely to get contacted by families, plaintiffs, and defendants directly.  That can be a problem.

Here’s a big piece of advice:

Starting off, do *not* deal directly with non-lawyers.   A family member who is expert-searching is often searching for a particular outcome, not expertise.  When they cut you a check, they think they are buying someone to testify in their favor, regardless of what your conclusion is.  I’ve had family members convinced that their terminally-ill relative was neglected, abused, or “murdered,” and when I came to the conclusion that the decedent just died of her disease, they were furious and refused to pay.  Families don’t know how court really works.  They don’t know what is and is not acceptable behavior. It can be a huge hassle.  When I get a call from a defendant or family member or someone wanting to sue a hospital, I always tell them to have their lawyer call me.  I try only to deal with counsel.

Don’t get me wrong, I *have* taken cases directly from individuals.  And I know a couple of people who do a fair number of private autopsies for medical malpractice cases.  But those cases, for me, have much more often been problem cases.

Next installment:   Insurance and incorporation