Deposing and Examining Doctors

How to Use the Defense Medical Examiner’s Report as Your Roadmap to an Effective Deposition

Deposing and Examining Doctors - Buy NowExcerpted from Deposing and Examining Doctors by Kim Patrick Hart

When preparing to depose the defense medical examiner in a personal injury or wrongful death case, always start with his or her examination report.

Read the Report Three Times

Begin by reading the report from start to finish.  During this first read, try to get a general feel for the doctor’s main points and the reasons for them.

Then read it a second time and specifically outline the negative opinions and the doctor’s factual basis for them.  Often you will find that the doctor has expressed opinions without giving any reasons for them.  At the doctor’s deposition, you’re going to discuss every negative opinion stated by the doctor in the report and ask the doctor specifically the factual or medical basis for that opinion.

Then review the report a third time to identify everything the report contains that might be positive to your case.  For instance, defense experts almost always agree that the treatment provided by your client’s doctor was appropriate and necessary.  Further, they will rarely suggest your doctor’s charges were unreasonable for the work done.  Other positive points that defense doctors usually agree to are the basic facts of the case.

Developing as many positive points at deposition as possible will allow you to start your cross-examination at trial on a positive note.

Developing the Positive Points

Use leading questions when reviewing the positive aspects of the defense doctor’s report during the doctor’s deposition.  This will discourage the doctor from trying to side step the language of the report, once the doctor realizes that it may benefit your client.

Here’s an example:

Question:         Doctor, was my client involved in an auto crash on August 15, 2012?

Answer:           Yes.

Question:         Can we agree he had his seat belt on at the time of the crash?

Answer:           Yes.

Question:         Did the records that you reviewed show that he was taken out of his vehicle by EMS on a back board?

Answer:           Yes.

Question:         Do they also show that he was immediately put in a neck brace?

Answer:           Yes.

Question:         Doctor, why did EMS do this?

Answer:           To protect the neck from any further damage.

Question:         Was that appropriate?

Answer:           Yes.

Question:         Doctor, can we agree my client was taken to Lake Butler Community Hospital from the scene of the incident?

Answer:           Yes.

Question:         Do you agree that all the treatment provided to him at the hospital was appropriate?

Answer:           Yes.

Question:         Can we also agree that it was necessary?

Answer:           Yes.

Question:         Finally Doctor, can we agree that all charges by the EMS personnel, radiologists, and the hospital staff were reasonable and customary for the services rendered?

Answer:           Yes.

Having established these points during the doctor’s deposition, you now can use them at trial to begin your cross examination on a positive note.

Handling the Negative Opinions

You handle negative issues in a different way.  Instead of asking leading questions, you ask open-ended questions to keep the doctor talking.  Start with very broad questions and later hone in on specifics.

For example:

Question:         Doctor, review for me every opinion you have expressed concerning my client contained in your compulsory medical report.

Answer:           First, it’s my opinion that while he initially had a soft tissue injury to his neck, this eventually healed completely after six to eight weeks.  Second, he currently needs no further medical treatment.  Third, he has not incurred a permanent injury as a result of the auto crash.

Question:         Doctor, let’s take these opinions one at a time.  Can you share with me every fact upon which you base your opinion that my client incurred a soft tissue injury as a result of the auto crash?

Answer:           After the crash, he had immediate complaints of pain.  X-rays failed to demonstrate any boney abnormalities.

Question:         Are there any other facts you relied on for your opinion?

Answer:           No.

Question:         Do you have any other basis for this opinion other than these facts?

Answer:           My training and experience as a neurologist.

Question:         What specific training and experience?

Answer:           I know from a review of literature that strained neck muscles and ligaments, usually resolve completely in eight to ten weeks especially in patients under 30 years of age.  I have verified this as being true in my own practice.

Deal with each of the doctor’s opinions in a similar way.

Locking the Doctor Into Opinions in the Report

Once you have concluded your interrogation, end with the following questions:

Question:         Doctor, have we now discussed every opinion expressed in your medical examination report concerning my client?

Answer:           Yes.

Question:         Doctor, do you have any other opinions concerning my client that are not contained in your report?

Answer:           No.

Question:         Doctor, do you have any plans to examine my client again?

Answer:           No.

Question:         Do you have any plans to review any additional medical records of my client?

Answer:           Not at this time.

These final questions are designed simply to lock the defense doctor into the opinions that are contained in the report.  If the doctor tries to go beyond the report at trial, state case law will usually allow you to prevent this new testimony if you have asked these questions.

About the Author

Kim Patrick Hart handles serious injury and death cases at Burkert & Hart in Fort Myers, Florida.  He has represented people involved in auto crashes, fall downs, and medical malpractice for more than 30 years.  A board certified civil trial lawyer, he has an AV rating from Martindale-Hubbell. He can be reached at (239) 337-4800 or by email through his website, http://www.slipandfallattorneyswfl.com/.

Deposing and Examining Doctors features hundreds of pattern questions, dozens of outlines, and over 80 four-color medical illustrations suitable for enlargement.

 

Deposing and Examining Doctors - Buy Now