Deposing and Examining Doctors

Description

How to prepare and take medical testimony, plus medical information on the injuries you are most likely to encounter. Hundreds of pattern questions, dozens of outlines, over 100 practice tips, 8 specialist-written medical chapters, and 79 four-color medical illustrations suitable for enlargement. Pattern medical depositions and examinations for the injuries you are most likely to encounter Some defense doctors try to intimidate you during their depositions. They pretend they don’t understand what you are asking, state that you have misused medical terms, and suggest that you do not have an accurate grasp of human anatomy. To be effective despite this gamesmanship, you must know the underlying medicine and have a game plan. Kim Hart’s Deposing and Examining Doctors gives you both. To help you gain the upper hand with even the most persuasive compulsory medical examiners, this valuable book:

• Offers strategy and tactics based on decades of experience with doctors,
• Provides medical information on the injuries you are most likely to encounter within each specialty,
• Demonstrates those injuries with professional-quality four-color medical illustrations usable as exhibits,
• And most important, gives you deposition outlines and model questions specific to dozens of injuries.

Organized around 8 medical specialties

Each chapter is designed to stand alone so that it can be reviewed quickly in case you need a last-minute refresher before taking a doctor’s deposition. Even better, review the relevant deposition, trial, and medical chapters when you first accept a case so you understand how to best handle the medical evidence.

1.   Chiropractors

• Soft Tissue Injuries of Neck, Shoulder, and Back
• Bulging and Herniated Discs of Cervical and Lumbar Spine
• Headaches

2.   Neurologists

• Cervical Strain, Sprain, and Whiplash
• Herniated and Bulging Discs
• Post Traumatic Myofascial Pain Syndrome
• Complex Regional Pain Syndrome
• Facial Nerve Injuries
• Paraplegia and Quadriplegia

3.  Orthopedists

• Hip Fracture Requiring Hip Arthroplasty (Replacement)
• Injuries About the Knee
• Pelvic Fractures
• Distal Radius Fractures
• Fractures About the Shoulder Girdle

4.  Neurosurgeons

• Epidural Hematomas
• Subdural Hematomas
• Skull Fractures and Intracerebral Hematoma
• Laminectomy
• Spinal Fusion

5.  Physiatrists

• Soft Tissue Injuries and Illnesses of the Neck and Back
• Carpal Tunnel Syndrome
• Failed Low Back Surgery Syndromes
• Spinal Cord Injuries

6.   Neuropsychologists

• Traumatic Brain Injury
• Post-Concussive Syndrome
• Post-Traumatic Stress Disorder

7.   Dentists and Oral Surgeons

• Temporomandibular Joint Injury
• Fractured or Avulsed Teeth
• Mucosal Lacerations
• Facial Fractures

8.   Plastic Surgeons

• Soft Tissue Injuries of the Face
• Rhinoplasty
• Orbital Rim Fractures
• Skin Grafts
• Decubitis Ulcers
• Burns

15 practice tips from the book

Handling compulsory medical exams

1. Videotape the CME. “If you make it a practice to videotape all compulsory medical examinations, you soon will have videotapes of most of the doctors used by the insurance companies in your area. Give your client a copy of a previous videotaped compulsory medical examination and the transcript from that examination of the doctor who is scheduled to examine her. This will take all the mystery and surprise out of the situation and help calm your client’s fear of the unknown.” §5:43
2. Second reason to videotape. “A defense-oriented CME doctor often plays Mr. Nice Guy at the examination. He will make sympathetic statements to your client such as, “I can see you have suffered a lot” or, “I can tell that this injury has had a serious effect on your life.” If a physician is two-faced and projects Mr. Nice Guy at the compulsory medical examination but Attila the Hun at trial, showing the jury a tape of the examination can communicate to them instantly what a schemer he is.” §8:4

Adverse deposition

3. Surprise. “I often see other attorneys begin by asking the doctor his qualifications and then proceeding on to the communications between him and the defense attorney followed automatically by the CME report and the client’s history. Don’t take this approach. Before going in, know what your most important issues are. Hit the doctor between the eyes immediately with the most crucial questions in the case. This always catches them by surprise and I find you get your most honest answers this way. If you begin with his qualifications, you are simply giving him an opportunity to become relaxed and comfortable with the situation. If you hit him with the unexpected, you may catch him off-guard and receive an honest response unadorned with the usual CME doctor spin.” §5:63

Using chiropractors

4. Outline of medical records. “In preparing your chiropractor for deposition, be sure to give her copies of the medical records and your outlines. Even though outlines are discoverable, and the defense will cross-examine the chiropractor as to where she got the records and the outlines, I have never had it used successfully against me in cross-examination at trial.” §2:20
5. Palliative treatment. “If your client has been treating with a chiropractor for six months or more, defense counsel will point out in examining the doctor that despite thousands of dollars worth of treatment, the patient is still not better. Normally chiropractors handle these questions by stating that their treatment allows a patient to stay at a certain plateau and not get worse. A better approach is to have the chiropractor discuss how these treatments enable clients to continue work and try to function normally without becoming dependent on pain medication. The theme here is that a natural way of dealing with pain is preferable to masking it with chemicals. This is a theme that a jury will accept.” §2:34

Direct examination

6. Logistics. “I like to have my client present during the doctor’s testimony. I find treating physicians tend to be far more sympathetic when patients are there during their testimony. But more importantly, the doctor can use the patient as a demonstrative aid to show how surgery was done, where surgical scars are located, and any current limitations in motion.” §1:34
7. Direct examination list. “At trial, the short list of essential points is crucial. It is designed to include everything that is legally necessary to avoid a directed verdict. I review it immediately before tendering the witness for cross-examination. It is my final checklist to make sure that all points that need to be covered have been. The essential points list for treating physicians should include….” §9:31
8. Medical records. “Many plaintiff attorneys routinely introduce into evidence a copy of the doctor’s entire medical record chart. I rarely put these records into evidence. Most doctors’ charts talk matter-of-factly about devastating injuries and paint a glowing picture of a terrific recovery. If the medical chart is read by the jury during deliberations, it can weaken the testimony of your doctor concerning the serious future disabilities your client will suffer. Certainly, the defense has the right to put the medical chart into evidence, but I usually do not and more often than not, the defense does not either.” §9:22
9. Recovery. “I like to keep the questioning about the recovery period brief. Often you will see a plaintiff’s attorney on direct examination ask the orthopedic surgeon to read all of his post surgical office notes. I think this is one of the biggest mistakes you can make. Not only is it boring, but often it paints a rosier picture of recovery than is true. Keep in mind that all surgeons would like to believe that their patients had a spectacular recovery after they worked their magic. So you often see in post-operative visits, phrases like “ is walking well today,” “having no problems,” “thrilled with the outcome.”” §9:52
10. Future medical bills. “The easiest money to obtain from a jury is past medical bills and future medical bills, followed closely by past lost wages and future lost wages. You will want to spend a lot of time before trial discussing thoroughly with the orthopedic surgeon what he feels the future medical costs will be. But do not try to push the orthopedic surgeon beyond the area in which he feels comfortable. If you do, it will affect the surgeon’s credibility and he will be susceptible to effective cross-examination.” §9:57

Demonstrative evidence

11. Trial exhibits. “I recommend that your medical bill summary sheet and verdict form be blown up and put on poster boards for virtually every personal injury case. I use the medical bill summary sheet during the direct examination of my client and treating neurologist, and in closing argument. I use a blowup of the verdict form as my outline for arguing damages once the issue of liability has been discussed. I walk the jury through every question and write on the exhibit the dollar amount of damages that I recommend be awarded for each element of damages. Invariably, after my closing statement, the defense lawyer gets up, takes the poster board and turns it against the wall. By doing so, he underlines for the jury my suggestions for damages. The jury will often take one last look, fearful that they won’t see these figures again. §6:03

Cross-examination

12. Review previous CMEs. “If you take the time to get the compulsory medical examinations in other cases, you will also find that the doctor’s wording is almost identical in each one. In fact some of these doctors actually have a computer template that they use instead of dictating separate findings on each new compulsory medical examination. When you find 10 CMEs with identical language and point that out to a jury, it is quite effective.” §6:52
13. Points of agreement. “No matter how much of an advocate the defense physician is, you will find things in his report that you can agree on. For instance, this is a perfect time to re-emphasize the points in your client’s history that bear underlining, such as cause of the crash, the severity of the impact, and the fact that your client was wearing a seatbelt. Beginning the cross-examination with five to ten leading questions with which the compulsory medical examiner admits he agrees is a great way to give the impression that there really is not much of a debate about the injury. It also sets up a great closing argument technique.” §9:75
14. Unseen records. “I was a defense lawyer for ten years. Because their livelihood is based on hourly billing, defense lawyers are kept exceedingly busy. That means they can often forget to do the little things like sending the compulsory medical examiner all the x-rays and records. When you depose a defense doctor, identify all the items he was sent. Invariably, there will be something your treating doctor has that the defense doctor does not have. During cross-examination, highlight the records the defense doctor did not have to review and use them as another reason why your treating physician has a clearer picture of what is really going on with your client.” §9:79
15. Fun with numbers. “I usually finish my cross-examination by laying out for a jury how often this doctor does compulsory medical examinations and what he makes from them. Fortunately for us, doctors usually answer one question at a time without thinking about the long-term consequences of what they have just said. It is not unusual for a compulsory medical examiner to estimate that she does approximately two examinations a week and charges $500 each for them. The doctor will usually admit to having her deposition taken 20 times a year at a cost of $1500 per deposition and her trial testimony five times a year at approximately $3000 an appearance. The doctor will then in the next breath tell you that this work is less than five percent of her total income. When you do the math, it doesn’t match up and a jury usually sees that.” §6:63