What do you ask the Defendant’s medical examiner? What are good questions to commit the Defendant’s doctor to positions and opinions for use at trial? How can you get ready to take the deposition of an experienced and seasoned medical expert? The answer is simple: preparation, more preparation and then even more preparation. The easy answer is there is never enough preparation to get ready for this type of witness. These doctors often know more about medicine than you could ever imagine. They have testified many times – sometimes, thousands of times in depositions and trial appearances. They know all the tricks, know exactly how to present themselves and how to answer every single question you could possibly ask. What’s a lawyer to do?
- Beginning the preparation. It does not matter if you represent the Plaintiff or Defendant in an injury case – each side will have their own medical witnesses. Oftentimes their opinions are diametrically opposed. The Plaintiff’s lawyer has one advantage – the defense expert usually gets to examine the Plaintiff on a single occasion. Plaintiff’s treating doctor often has the benefit of months or years of evaluations, care and treatment to base an opinion on. In the beginning, the best way that a Plaintiff’s lawyer can begin a preparation to take the defense doctor’s deposition is to read the defense medical report. It begins there. It is best that the defense examiner’s report be read through without taking notes, outlining or highlighting on the first read. The usual format for a defense report is a description of the history, then the examination followed by medical records review and finally conclusions. While the order of these may vary, most reports include these items. Once the report is read, a second reading should take place. During the second reading, the lawyer should take notes. Write down words and terms, including types of tests the lawyer is not thoroughly familiar with. In fact, it is a good idea to make a list of all tests the physician actually (or supposedly) performed. It is also important to highlight any words or terms the lawyer is unfamiliar with. The lawyer should make a general synopsis or statement of what the ultimate opinions are and how the doctor reached them. Use terminology and words that you are familiar with – not medical terminology. For instance, describing range of motion: “forward flexion “could be recorded as how far Plaintiff could bend forward. It is vitality important that when reading the defense examiner’s report, the date of the visit should be compared to Plaintiff’s treatment records. Oftentimes the patient will have a concurrent exam with his/her own doctor or a recent exam where findings such as weight, height, vital signs, presence or absence of swelling and other distinguishing characteristics can be compared to those recorded in the defense report.
- In my practice, I try to have a client visit his physician shortly before the defense exam. I have found cases where not only did their weight vary quite radically from the defense doctor’s record but also the defense doctor did not record bruising, swelling and other physical signs of injury that were present. In one case, the defense examiner failed to note the presence of a surgical scar from a recent surgery. All of these details can prove valuable later on during a deposition (or cross examination at trial).
Once the lawyer has made a list of all of the medical terms and tests listed in the examiner’s report, it is time to look them up. Make an outline or a list of each and every test and what it is for. Invariably, the defense examiner will note a full range of motion, full measurements of strength, equal bilateral strength in all extremities, and negative test results in order to justify an opinion of no permanent injury or to otherwise minimize the Plaintiff’s injuries. For this reason, we often videotape defense exams. Note how the examiner measured such things as range of motion. Did they use a goniometer or inclinometer? Was it eyeballed? Again, these will be topics for discussion at deposition. Familiarity with the type of movement involved in the individual tests will force the examiner to explain his or her actual testing. In cases where the patient has a torn meniscus in their knee or torn rotator cuff in their shoulder, certain movements and medical tests will produce pain or restriction of motion. It would be highly unlikely with such objective findings for these tests to be negative, though invariably on these defense reports they will be documented as negative.
Once the defense examiner’s report is thoroughly reviewed and outlined and the attorney has a working knowledge of the medical terminology and testing described therein, the next step is to do some basic homework about orthopedic exams, neurologic exams or the exam described in your particular case. I like to go online to the website of the organization that the expert belongs to. For instance, the American Academy of Orthopedic Surgeons has an excellent website which provides a treasure-trove of information about routine orthopedic exams, orthopedic findings, conditions, complaints, symptoms, signs and the tools of the trade. It also explains terminology in lay terms and helps the practitioner understand what a doctor may be looking for. Oftentimes defense examiners do not record a positive finding on a specific test or exam intentionally. When this specific test or exam is a routine part of the overall assessment within that specialty, the absence of such documentation can prove devastating to the examiner’s credibility. For instance, in a trial with a well-known defense neurologist, I had videotaped the examination. One particular routine neurologic test was given; not surprisingly, because it was positive and indicative of a traumatic brain injury, the examiner failed to report it. At trial, I asked the examiner whether that specific test, a mini-mental status exam, was routine in neurological assessment. He indicated it was. I asked him why it wasn’t documented in his report. He indicated it was only documented when positive. I then played the videotape of the exam where, in fact, it had been positive. His explanation was, “I must have forgotten to document that – it could have been a transcription mistake”. The jury didn’t buy it.
The next search I like to do in getting ready for a deposition of a defense examiner is to just simply google the doctor by name. A few years ago, I came across a book the defense examiner had published on a bizarre topic called fingerology. I asked the examiner about it a trial and he launched into an extensive narrative on this almost crazy science he believed in. Over the years I have also had instances where doctors have been arrested, including one notable physician in West Palm Beach that was convicted of sexual assault on a female patient. You never know what you will find on the expert’s Facebook page or practice website page. Oftentimes defense examiners brag on their websites about how good they are in conducting defense exams. I like to cross-examine these folks about their websites which sometimes contain outrageous statements.
Another great tool for the attorney preparing for a doctor’s deposition is thorough expert witness and/or boecher interrogatories. Get the doctor’s trial lists and deposition lists. In some cases, I have called other attorneys that have deposed these doctors and asked for copies of their deposition transcripts. Sometimes I consult trial lawyer’s list serves or such services as Trial Smith to order prior trial testimony or depositions. This is case dependent – on a small case it does not make sense to spend a fortune for copies of old depositions; the costs cannot be justified. On the bigger case, it may make sense.
Rule 26 disclosures are a valuable source of information for those defense experts that have testified in Federal Court. Doing a case name search with the expert’s name on Westlaw can often yield a great amount of material on the expert. Occasionally – rarely – you may come across an order or a trial ruling limiting or striking the expert’s opinion. You may find deposition or trial testimony where the expert contradicts him or herself from the opinions stated in your medical report. The problem that most lawyers have with preparing for an expert’s deposition is the almost unending amount of information and prior testimony that seasoned defense examiners have. In one case, I read 20 prior depositions to prepare for an expert’s deposition. There were many, many more out there – I stopped at the 10-year mark in order to have some limit. Case law has limited the practitioner’s ability to get access to prior IME reports based on privacy concerns. I also believe that too much emphasis is placed on financial discovery; unless it’s truly out of the ordinary, I do not believe that a jury is going to be swayed by an expert that makes a lot of money doing this work. More interesting will be the percentages of Plaintiff and defense work the expert does. When an expert testifies that they do 50/50 Plaintiff and Defendant, it’s usually not true. A case list search where the expert has testified often reveals its heavily weighted in favor of the defense. Some of the most useful discovery about the defense expert is grassroots, organic discovery from friends and colleagues. Some of the best materials I have received have been from fellow lawyers who have had recent cases involving the defense expert and have done their own research. There are folks that are willing to share a cache of information that makes life simpler for preparation. Don’t be shy when asking for this sort of favor but be willing to share if asked in the future.
Plaintiff’s Own Medical Records. In recent years I have found that defense examiners have been preparing lengthy chronologies of Plaintiff’s medical records. Frequently, the defense expert’s slant on these records is biased and even non-factual. Exposing the defense expert’s bias in the preparation of a medical chronology and “catching” the defense expert in a mistake or misstatement of Plaintiff’s medical records can be very useful. This requires some preparation since it will be necessary for the Plaintiff’s attorney to have detailed knowledge of the Plaintiff’s medical records in order to compare the “side-by-side” version of the defense examiner’s chronology. The synopsis the defense examiner makes usually highlights the history given in the record and the findings. Since medical records are frequently repetitive templates, the defense examiner will often try to zero-in on relevant findings; frequently omitting findings which differ from the expert’s efforts at minimalizing Plaintiff’s injuries. The questioner must go through Plaintiff’s treatment records and should do so in sequential or chronological order. The defense examiner will typically prepare a synopsis by provider and not in chronological fashion. I like to make a timeline by encounter history not by provider or facility.
Highlight the positive history, complaints, findings and limitations that tend to show the Plaintiff’s ongoing injuries and difficulties. When questioning a defense examiner, take the expert through Plaintiff’s care from the initial first responder’s records or treatment up and through MMI. Try to get the defense examiner to concede to admissions concerning the Plaintiff’s objective findings; oftentimes the defense examiner’s testimony concerning treatment records where there are consistent and ongoing complaints over months or years, consistent and ongoing objective findings, continued limitations on range of motion, weight lifting restrictions and other physical findings can be played to the jury to make the examiner sound like Plaintiff’s treating doctor. After a while, defense examiners will start to question the veracity of the records, findings or overall documentation without any basis other than a statement to the effect that” they did not see the Plaintiff exhibit these signs or symptoms on their one-time evaluation”. Often, Plaintiff’s own treatment records, especially those that are close in time to the defense exam will vary significantly from the defense examiner’s records. This gives the Plaintiff’s attorney a chance to argue that the client consistently had documentation of ongoing injuries with both objective and subjective findings over a lengthy period – except on the day the defense examiner saw the Plaintiff. In essence, it places the defense examiner in the role of accuser. The defense examiner must essentially accuse the Plaintiff of faking or malingering, accuse the Plaintiff’s treating doctor of falsifying his or her records, or at least embellishing them, and accuse the physical therapist of providing unnecessary treatment that was unreasonable or excessive. Thus, the defense examiner becomes the only one “telling the truth” – everyone else is either lying or exaggerating. In a situation where the Plaintiff has had multiple encounters with various healthcare providers that have the same or similar documentation of Plaintiff’s injury vs. A one-visit defense examiner that reports significantly different findings, Plaintiff’s counsel’s argument is strengthened, and the defense examiner is made to look biased and untruthful.
General Statements of Fact. The relationship of a defense examiner to the Plaintiff is unique. The defense examiner is a physician hired by the defense to purportedly provide an expert medical opinion. The defense examiner gets the opportunity to review all of the Plaintiff’s treatment records, radiographic studies and unrelated medical records. Frequently the defense examiner will examine the Plaintiff and take x-rays in order to provide their own diagnosis. It is helpful to point out to the jury some of the differences between the defense examiner and Plaintiff’s own physicians. I like to ask some very basic questions in order to highlight this. Examples of routine questions that apply to every case are:
- Doctor you were hired by the Defendants in this case, true?
- No doctor/patient relationship exists between you and the Plaintiff?
- There is no confidentiality between you and the Plaintiff – you report to a third-party?
- You will not be making any efforts to help the Plaintiff or make him/her better?
- You will be paid by the Defendants in this case?
- You knew, before you ever saw the Plaintiff, that it would be in the Defendant’s best interest for you to say the Plaintiff has no permanent injuries, correct?
- You know that if you find the Plaintiff sustained injuries related to the accident that would be bad for the side that hired you?
- If you were to find that the Plaintiff suffered injuries related to the accident, chances are you would not be called to give a deposition or testify at trial and therefore lose out on the thousands of dollars you would charge for that.
- It is in your financial interest to say that the Plaintiff did not suffer permanent injuries, correct?
- Doctor, are you telling us that giving a deposition or testifying at trial and being paid close to $1000 an hour is not in your financial best interest?
- You would agree doctor that if you were to start finding Plaintiffs did suffer permanent injuries from accidents that in short order no defense lawyers would be hiring you to do their exams?
- You would lose out on your lucrative line of defense expert work if you were to find that Plaintiffs sustained permanent injuries from accidents, correct?
- Doctor it’s true, is it not, that it is in your personal, financial best interests to say the Plaintiff did not sustain a permanent injury so that you can generate more fees by testifying in the case and more business from defense counsel in the future?
- Doctor, you knew you would never be prescribing any medication for my client, correct?
- Doctor, you know that you were never going to provide any treatment for my client?
- Do you hold yourself out as an expert in medical bills?
(Follow-up question if “yes”)
- Have you ever been hired to testify for a medical billing company?
(Follow-up question if “yes”)
- Have you done work for insurance companies evaluating medical bills?
(Follow-up question if “no”)
- Yet you are testifying in this case about the reasonableness of my client’s medical bills, correct?
- Do you do the medical billing in your office?
- What percent of your medical expert witness work is for Plaintiffs?
- What percent of your medical expert witness work is for Defendants?
- Do you ever testify as an expert in medical malpractice cases?
(Follow-up question if “yes”)
- Do you testify for defense and Plaintiff and if so, what are the percentages?
- Have you ever testified in a medical malpractice case at trial?
(Follow-up question if “yes”)
- Was it for the defense, for the Plaintiff or both?
- How many depositions have you given in the last five years?
- How many independent medical exams, defense exams, court appointed exams, defense medical exams, whatever you want to call them, do you do in an average year?
- What are your total charges in this case?
- Are your total charges in this case average for your services in a case as a defense medical examiner?
(Follow-up question if “no”)
- What about this case was unique or special that made you charge more money than a regular case?
- Did you charge the defense hourly for medical records review? and, if so, how much did you charge in this case?
- Did you know how many pages of records you reviewed on behalf of the defense in this case?
- Did you make any notes concerning Plaintiff’s medical records other than what is contained in your report?
- Did you dictate your report contemporaneously with your examination?
- Did you write down or dictate each of your range of motion findings during the exam?
- Did you use an instrument to measure range of motion? (If so), What kind?
- Was there anyone present during Plaintiff’s exam besides you and me?
- How much time did you spend on Plaintiff’s actual physical examination?
- How much time did you spend on the history portion of Plaintiff’s examination?
- Did you have a conference with defense counsel before Plaintiff’s examination?
(Follow-up question if “yes”)
- Did you make any notes about that conversation?
(Follow-up question if “no”)
- How long did that conversation last?
- Did you text message, email or otherwise electronically communicate with defense counsel on this case? (if so) Where are those communications and how can I get a complete copy of them?
- Do you accept letters of protection in your office?
(Follow-up question if “yes”)
- What is the purpose of a letter of protection?
- Do you charge the same amount of money for an examination of a patient that is not in litigation as you do for a defense exam? (if not) Why not?
- What percent of your defense exams do you find that the Plaintiff has sustained a permanent injury as a result of an accident?
These are just some routine questions that I use in order to get some baseline answers that may prove helpful at trial. Many jurors are familiar with the concept of an “insurance doctor” – a physician hired by an insurance company to deny future medical care or reduce medical bills. Few people outside of the realm of litigation could ever imagine the cottage industry that defense examiners have created. Oftentimes hearing that a defense doctor makes hundreds of thousands of dollars a year working these cases is enlightening. What we have found in speaking with jurors and others involved in litigation is that vast earnings from defense work alone is not as significant a fact as Plaintiff’s lawyers are led to believe. Most jurors realize that doctors make a lot of money. How they make their money is often not that important. The Plaintiff’s lawyer should be working to expose the defense examiner’s bias on as many fronts as possible. Business relationships with defense counsel and the insurance industry, cynicism, inaccuracies in records, misstatements, exaggerations, underreporting, percentages of defense work and general arrogance of the defense examiner are all arrows in the Plaintiff’s lawyer’s quiver. Expect to spend a good deal of time to prepare for this important deposition.