You may select one of the
following chapters and have it e-mailed to you at no
charge:
Chapter 1
Deposition and Trial Examination Basics
Chapter 2
Deposition of the Chiropractor
Chapter 3
Trial Examination of the Chiropractor
Chapter 4
Chiropractic: Medical Science
Chapter 5
Deposition of the Neurologist
Chapter 6
Trial Examination of the Neurologist
Chapter 7
Neurology: Medical Science
Chapter 8
Deposition of the Orthopedic Surgeon
Chapter 9
Trial Examination of the Orthopedic Surgeon
Chapter 10
Orthopedic Surgery: Medical Science
Chapter 11
Deposition of the Neurosurgeon
Chapter 12
Trial Examination of the Neurosurgeon
Chapter 13
Neurosurgery: Medical Science
Chapter 14
Deposition of the Physiatrist
Chapter 15
Trial Examination of the Physiatrist
Chapter 16
Physical Medicine and Rehabilitation: Medical Science
Chapter 17
Deposition of the Neuropsychologist
Chapter 18
Trial Examination of the Neuropsychologist
Chapter 19
Neuropsychology: Medical Science
Chapter 20
Deposition of the Dentist and Oral Surgeon
Chapter 21
Trial Examination of the Oral Surgeon
Chapter 22
Dentistry and Oral Surgery: Medical Science
Chapter 23
Deposition of the Plastic Surgeon
Chapter 24
Trial Examination of the Plastic Surgeon
Chapter 25
Plastic and Reconstructive Surgery: Medical Science
Here are the first 10 pages of a
23-page chapter:
Chapter 8
Deposition of the Orthopedic Surgeon
By: KIM PATRICK HART
I. Introduction
§8:01 Common
Orthopedic Injuries
§8:02 Disability and
Expenses, but Not Causation, Are Usually at Issue
II. Reasons to Depose Orthopedic
Surgeons
§8:10 No Need to
Depose Treating Surgeon, but Get Affidavit
§8:11 Exception:
Hostile or Uncooperative Treating Surgeon
§8:12 Deposition of
Defense Orthopedic Surgeon
§8:13 Videotaping
Orthopedic Surgeon’s Testimony for Use at Trial
III. Preparing Treating Orthopedic
Surgeon for Deposition
§8:20 Time Is
Limited
§8:21 Points to
Cover During Pre-Deposition Meeting
IV. Exhibits
§8:30 X-Rays
§8:31 Illustrations
§8:32 Medical Bills
and Records
§8:33 The Client
§8:34 AMA Guide to
Disability
V. Preparing for the Deposition
of Defense Orthopedic Surgeon
§8:40 Get CME Report
and Study It
§8:41 Review CME
Transcript
§8:42 Review
Videotape of Compulsory Medical Examination
§8:43 Subpoena Duces
Tecum
VI. Sample Deposition of Defense
Orthopedic Surgeon (Torn Meniscus Case)
§8:50 Education,
Training, and Experience
§8:51 Initial
Contact and Pre-Examination Materials
§8:52 The
Examination
§8:53
Conclusions/Reports
§8:54 Causation and
Basis of His Opinion
§8:55 Past Medical
Care Appropriate and Related to Injury
§8:56 Opinions on
Future Medical Care
§8:57 Lost Wages
§8:58 Effects of
Injury on Client’s Ability to Earn Income in the Future
§8:59 Opinions on
Permanent Injury
§8:60 Current
Effects of the Injury
§8:61 Future Effects
§8:62 Areas of
Agreement
§8:63 Relationship
with Defense Attorney and Insurance Company
VII. Rotator Cuff Injuries
§8:70 What Is a
Rotator Cuff?
§8:71 Why Are
Rotator Cuff Tears So Common?
§8:72 Symptoms
§8:73 Causation
§8:74 Diagnosis
§8:75 Recovery
§8:76 The Defense
§8:77 Initial
Meeting With the Orthopedic Surgeon
§8:78 Preparing the
Orthopedic Surgeon for Deposition
§8:79 Deposing the
Defense Expert
VIII. Sample Deposition of Defense Orthopedic
Surgeon (Rotator Cuff Tear
Requiring Surgical Repair)
§8:90 Background,
Education, Training and Experience
§8:91 Initial
Contact, Material Received, Material Reviewed
§8:92 Doctor’s
Report
§8:93 The
Examination
§8:94 Medical
Research
§8:95 Doctor’s
Opinions
§8:96 Injury
Pre-Existed Auto Crash
§8:97 Plaintiff’s
Rotator Cuff Tear Is Result of His Occupation
§8:98 Plaintiff Has
Made a Full Recovery
§8:99 Plaintiff Will
Not Need Future Medical Care
IX. Forms
Form 8:10
Treating Orthopedic Surgeon’s Pre-Suit Affidavit: ACL Tear
Form 8:20
Treating Orthopedic Surgeon’s Pre-Suit Affidavit: Torn Rotator Cuff
I. Introduction
§8:01
Common Orthopedic Injuries
An orthopedic surgeon specializes in treating problems
of the bones, joints, and ligaments. Orthopedic injuries are the most
common seen in personal injury work. These are the types of injuries
that normally occur as a result of auto crashes and falls. Some of the
most common injuries that require an orthopedic surgeon are:
-
Hip fractures requiring total hip replacement.
-
Knee injuries involving torn menisci, torn ligaments
or fractures requiring open reduction
or total knee replacements.
-
Pelvic fractures requiring open reduction and
internal fixation.
-
Wrist fractures, both closed and open reductions.
-
Rotator cuff tears.
-
Clavicle and shoulder joint fractures requiring
surgery.
Orthopedic injuries are so common in personal injury
work that you will soon get to know most of the orthopedic surgeons in
your area. You will have a good idea what type of witnesses they make,
whether they tend to be supportive of patients, and whether they are
philosophically conservative or liberal in terms of testimony concerning
future damages.
§8:02
Disability and Expenses, but Not Causation, Are Usually at Issue
The great thing about orthopedic injuries is that there
is usually not a causation problem. Rarely is the issue in an orthopedic
injury case whether or not the car crash or fall caused the fracture or
the need for surgery. This issue is usually quite clear. Your client did
not have a broken leg before the auto crash and afterwards he did.
The battleground in orthopedic injuries has to do with
disability and expected future medical expenses. The debate is over the
effect these injuries normally would have on a person’s life and how
that compares with the plaintiff’s complaints. Likewise, the other big
area of contention is future medical expenses. Most orthopedic surgeons
will provide testimony stating that a plaintiff will need periodic
visits to an orthopedic surgeon, X-rays, pain medication, physical
therapy, and often a joint replacement sometime in the far future. Since
juries tend to believe physician testimony on future medicals, this is
an important battleground for both plaintiff and defense lawyers.
[§§8:03-8:09 Reserved]
II. Reasons to Depose Orthopedic
Surgeons
§8:10 No
Need to Depose Treating Surgeon, but Get Affidavit
Generally, there is no need for the plaintiff to take
the deposition of a treating orthopedic surgeon. A better technique is
to meet with the treating physician after your client has reached
medical maximum improvement. In a 15-minute conference, you can usually
review the important issues of the case, including:
-
The nature of the injury.
-
The mechanics of the injury.
-
Causation.
-
Medical necessity of all treatment.
-
Reasonableness of all bills.
-
Need for medical attention in the future.
-
Cost of medical attention in the future.
-
Current disabilities.
-
Future anticipated disabilities.
-
Current effect on life and job.
-
Future effect on life and job.
After meeting with the treating physician and obtaining
his opinions, prepare an affidavit setting out the major points that you
would want to establish through a deposition.
By using an affidavit instead of a deposition, you
completely control the facts. It will also serve as a review aid in
preparing the orthopedic surgeon if his or her deposition is taken by
the defense.
FORM: See Form 8:10 Orthopedic Surgeon’s Pre-Suit
Affidavit at the end of this chapter and on the CD.
§8:11
Exception: Hostile or Uncooperative Treating Surgeon
On rare occasion, you will encounter a treating
orthopedic surgeon who will not meet with you privately to discuss his
treatment of your client. Under these circumstances, you must depose
him. Although lack of cooperation usually foreshadows negative opinions
at the deposition, it is best to get these out into the open immediately
to know exactly how bad they are so that you can take corrective steps
before trial. For example, once I had an orthopedic surgeon who did an
open reduction of a tibia fracture on my client using plates and screws.
In Florida we are required to establish that a
car crash caused a permanent injury. At deposition he took the position
that my client did not have a permanent injury even though he still had
plates and screws in his leg. Although I certainly was not pleased to
hear this at his deposition, which was used at trial, knowing his
negative opinion allowed me to schedule my own “independent medical
examination” with a hand-picked orthopedic surgeon who also appeared at
trial and testified that this was a permanent injury and that the client
would need future medical care. The case was tried and the jury believed
the second orthopedic surgeon primarily based on the strength of seeing
X-rays showing metal in my client’s leg.
§8:12
Deposition of Defense Orthopedic Surgeon
As a plaintiff attorney, you will always want to depose
an orthopedic hired by the defense to do a compulsory medical
examination. The timing of the depositions is usually determined by
economic factors. If the case appears to be a large damage case, and if
the report of the compulsory medical examiner contains unexpected
opinions, it would be wise to depose that doctor before mediation. If,
however, the compulsory medical examination is basically honest in
nature but leans towards the conservative side, it is certainly
acceptable to wait until after mediation or shortly before trial to take
the deposition.
§8:13
Videotaping Orthopedic Surgeon’s Testimony for Use at Trial
Often it is necessary to take a videotaped deposition of
a treating orthopedic surgeon for use at trial. There certainly are a
lot of advantages to doing this. First, by videotaping the testimony,
there are no surprises at trial. Second, videotaped testimony allows you
the luxury of putting the doctor on at the time and place that you need.
Third, doctors usually charge less for videotaped testimony than live
testimony at trial. Attorneys have different opinions about the
effectiveness of a videotaped deposition of an orthopedic surgeon versus
a live appearance, but I have never felt that any verdict was negatively
affected by using videotape. However, I have had many unpleasant
experiences when doctors appeared live and something came out of their
mouth that was totally unexpected.
[§§8:14-8:19 Reserved]
III. Preparing Treating Orthopedic
Surgeon for Deposition
§8:20 Time
Is Limited
Many trial practitioners suggest spending an hour or two
preparing an orthopedic surgeon for her deposition. These people do not
live in the real world. The truth of the matter is that one of the
hardest things to do is to get a busy orthopedic surgeon to actually sit
down with you for even fifteen minutes to prepare for a deposition. For
this reason, you have to be prepared to cover the essential points and
problems in the shortest amount of time. You must review the essential
issues quickly and emphasize where the danger spots are in
cross-examination in a concise manner.
If the client had a pre-existing complaint that creates
a serious causation issue, I will give the surgeon the actual records
plus my outline of the records. I find that most orthopedic surgeons
will at least read the outlines, especially if you couch the problem as
a situation where the defense attorney will try to trick them “on
cross-examination.” No one wants to look like a fool, so ways of
protecting themselves on cross-examination are always of interest to
testifying doctors.
My preference on timing is to meet with the orthopedic
surgeon a day or two before the actual deposition. This gives me an
opportunity to give him medical records on my client that existed before
the personal injury action.
§8:21
Points to Cover During Pre-Deposition Meeting
Since time is a premium and you may only have fifteen
minutes, hit the important points first:
- Auto crash caused the orthopedic injury.
-
The injury is permanent in nature and there will be
future effects.
-
Expected future medical treatment.
-
Expected future medical costs.
-
Past medical treatment that would not have been
necessary but for the auto crash.
-
Past medical bills are reasonable in nature.
-
Current complaints of patient consistent with the
injury.
-
Effect of injury on patient’s ability to enjoy life
in present and the future.
-
Effect of injury on patient’s ability to earn income
at present and the future.
-
All notations in medical records that pre-dated the
accident that can be used to suggest that the plaintiff’s injury or
current problems pre-existed the auto crash.
-
Review the legal standard of holding opinions within
reasonable degree of medical probability.
-
Review the doctor’s patient file and pull out
anything that does not belong in the file.
-
Review all exhibits and make sure that if you are
using X-rays there is a view box in
the deposition room.
In the time remaining, make sure the surgeon understands
what you are trying to prove with his or her testimony. Be honest about
the weaknesses in your case and point out how the defense will question
the surgeon to try to accentuate those weaknesses. Make sure the doctor
understands the significance of legal terms of art such as “within a
reasonable degree of medical probability.” Doctors often do not
understand the difference in our world between possibility and
probability. Finally, take the doctor through a short but aggressive
mock cross-examination.
[§§8:21-8:29 Reserved]
IV. Exhibits
§8:30
X-Rays
X-rays are usually the best evidence in an orthopedic
case, especially if the surgeon has performed an open reduction using
plates and screws. There is just something about seeing the stark
whiteness of metal in a person’s leg or hip that communicates directly
to a juror’s heart that this is a serious injury. Early in the case you
should obtain copies of X-rays and decide which are the most dramatic.
Only use two or three X-rays during the deposition. More than that gets
to be unruly. Choose ones that show different views that dramatically
highlight the artificial bodies used during the surgery or the
seriousness of the fracture. I usually like to use one pre-surgery X-ray
illustrating how bad the initial fracture was, one immediate
post-surgery X-ray, and then one of the last X-rays taken.
Obviously to be effective, you are going to need a view
box if you are using a standard X-ray. You can however, have an X-ray
made into a positive print. This is often very effective because you can
use it at the deposition and in trial like a photograph. Once it is
placed on poster board, it is easy to bring out and use with the witness
at any time.
§8:31
Illustrations
The next most effective visual aid is a medical
illustration. There are many good companies that can prepare these for
you. The key here is to get the illustrators involved early. They will
want to do some preliminary drawings and have them reviewed by your
treating physician to make sure they are accurate. Once the treating
doctor signs off on them, the illustrators will prepare a final version
that not only helps to clearly illustrate the injury to a jury, but also
helps the orthopedic surgeon to shift into teaching mode, where he is
usually more relaxed.
TRIAL EXHIBITS:
See the following trial exhibits at the end of the
Illustration Gallery in Volume 1, and on the CD:
-
Fig 9-10 Trial Exhibit: Hip Replacement Surgeries.
-
Fig 9-20 Trial Exhibit: Tibial Plateau Fracture with
Surgical Fixation.
-
Fig 9-30 Trial Exhibit: Lateral Miniscus Tear
Repair.
-
Fig 9-40 Trial Exhibit: Knee Replacement Surgery.
-
Fig 9-50 Trial Exhibit: Pubic Diastasis and
Sacroiliac Joint Disruption.
-
Fig 9-60 Trial Exhibit: Comminuted Fracture of
Distal Radius.
-
§8:32
Medical Bills and Records
You know the defense will always ask your treating
physician to produce two exhibits. First is the treating physician’s
medical records and the second is his or her medical bills. Have a clean
copy of each available. The medical records should not have extraneous
notes on them. The medical bills should show only the charges and not
any payment by insurance companies or others. In most jurisdictions,
payments by insurance companies are considered collateral sources that
are not admissible at trial.
§8:33 The
Client
Finally, don’t forget your most obvious piece of
evidence, your client. If you are worried at all that an orthopedic
surgeon may cause you difficulty either on the permanency of the injury
or causation, have your client present at the defense deposition. An
orthopedic surgeon will rarely tell injured victims to their faces that
the car crash did not cause their injuries or that he or she does not
believe the patient is truly having problems. If the surgeon has not
been straightforward with the patient while treating her, the surgeon
will be more reluctant to cause difficulties on these issues at the
deposition.
If you are taking the deposition to be used at trial,
having your client there gives the surgeon a live exhibit to work with.
During a videotape deposition, I often have the orthopedic surgeon show
on my client’s body where the surgery was, demonstrate the scar and
explain why it is the size it is. I have the surgeon demonstrate on the
exterior of the body where the bones that were fractured are, and then I
have the surgeon do a range of motion to show my client’s current
limitations. The use of a client in a videotaped deposition really helps
to spark interest, not only for the jury but also for the treating
physician. Doctors are used to working with and manipulating bodies
every day. As soon as they have a patient in hand, they seem to become
more relaxed and caring. One caveat, though: warn the surgeon that
you intend to bring your client with you. Some physicians have a problem
with this. If you are dealing with a cooperative treating physician,
there is no need to push the issue. If, however, the treating physician
is uncooperative, there is no need to warn him that you are bringing
your client; simply do so.
§8:34 AMA
Guide to Disability
One other piece of evidence you may want to have present
at an orthopedic surgeon’s deposition are copies of pages from the AMA
guide to permanent and partial disability or your state guidelines. By
going over the guidelines with the doctor in your pre-deposition
meeting, you can help build the foundation for his opinions concerning
permanent ratings.
[§§8:35-8:39 Reserved]
V. Preparing for the
Deposition of Defense Orthopedic Surgeon
§8:40 Get
CME Report and Study It
Most jurisdictions require the defense to provide you
with its doctor’s compulsory medical examination. [Fla. R. Civ. Proc. 1.36
(b)(1).] Many rules require you to produce copies of your treating
physician’s records if you make this request. This usually isn’t a
problem since the defense has often received all these records before
the compulsory medical examination.
Your first step in preparing to depose the doctor is to
review the report and identify the areas in which the doctor agrees with
your treating physician and the areas in which he disagrees. Remember
that at trial, you want to keep your cross-examination of the compulsory
medical examiner brief. You want to emphasize the points of agreement.
The compulsory medical examination report is the place where you can
identify those issues.
§8:41
Review CME Transcript
Many jurisdictions allow a court reporter to be present
at the compulsory medical examination. Take advantage of this. Review
the transcript carefully, comparing it with the compulsory medical
examination report. Note discrepancies and be prepared to bring them out
at the deposition.
§8:42
Review Videotape of Compulsory Medical Examination
Many jurisdictions allow the plaintiff to videotape a
compulsory medical examination. Again, you should do this. Do not be
afraid of the cost. You will be thankful in the end. Often
defense-oriented CME doctors try to play Mr. Nice Guy at the
examination. They will say sympathetic things to your client such as,
“Oh, I can see you have suffered a lot,” or, “Oh, I can tell that this
injury has had a serious effect on your life.” Then, after being all
sweet and kind at the examination, they will deep-six your client and
find no permanent injury.
An effective cross-examination technique both at
deposition and trial is to play these statements to the doctor and get
the doctor to admit that he made them. Jurors are less likely to
trust the doctor who has just told them under oath that there is nothing
wrong with the plaintiff when they see a videotape in which the doctor
sympathizes with the plaintiff and tells the plaintiff how injured he
is.
§8:43
Subpoena Duces Tecum
Serve the CME doctor with a subpoena duces tecum
requiring him to produce items that you want to attach to his or her
deposition. These should include:
-
The doctor’s curriculum vitae.
-
Copies of all records that the doctor has received
from the defendant.
-
Copies of all films the doctor has received from the
defendant.
-
Copies of all medical articles, computer research,
and medical research that the doctor reviewed in preparing to
examine your client or before preparing his or her report.
-
A list of all cases in which the doctor has done a
CME for the defense law firm or the insurance company he represents
for the past three years.
-
A list of all cases in which the doctor has
testified on behalf of the defense law firm or the insurance company
in the last three years.
-
The amount of money the doctor has received from
either the defense law firm or the insurance company for doing
compulsory medical examinations, depositions, trial testimony or any
other medical legal work in the past three years.
[§§8:44-8:49 Reserved]
VI. Sample Deposition of Defense
Orthopedic Surgeon (Torn Meniscus Case)
§8:50
Education, Training, and Experience
Q. Please state your name.
Q. What is your occupation?
Q. Do you have a specialty?
Q. Where do you practice?
Q. Can you share with me your
educational background, beginning with your graduation from high school?
Q. What was your residency in and
where did it take place?
Q. Are you board certified, in what
specialty, and when?
Q. When did you enter private
practice?
Q. Where have you practiced since
then?
Q. Are you admitted to practice in any
hospital?
Q. Which states are you licensed in?
Q. What professional organization do
you belong to?
Q. What professional journals do you
receive and read on a regular basis?
Q. Can you explain to us what the
specialty of orthopedic surgery involves?
Q. Can you describe what an orthopedic
surgeon does on a day-to-day basis?
Q. Did you bring a copy of your
curriculum vitae?
(Review the curriculum vitae. Question the doctor about
any aspects of his past training or experience that may be particularly
relevant to your injury. Then attach the curriculum vitae as an
exhibit.)
§8:51
Initial Contact and Pre-Examination Materials
Q. When were you first contacted to do
a compulsory medical examination on my client?
Q. Who contacted you?
Q. Were you contacted by phone or
letter?
Q. What were you told about my client?
Q. What were you asked to do?
Q. Were you provided any medical
records or X-rays to review?
Q. What were you provided?
Q. Were you provided any summaries or
outlines of the medical records?
Q. Did you read the actual medical
records or just summaries?
Q. Were you provided any facts by the
defense concerning the auto crash?
Q. May I see all correspondence,
medical records and other documents that were sent to you before you
examined my client?
(Attach as an exhibit.)
Q. Do you have any email
correspondence or any computer notes concerning my client?
Q. Would you please print a copy of
all email messages and computer notes that you have? (Attach as
an exhibit.)
Q. From your review of the medical
records and films, did you reach any initial opinion concerning
my client?
Q. What opinions did you reach
concerning my client solely from a review of these records and films?
§8:52 The
Examination
Q. When did you examine my client?
Q. Where did the exam take place?
Q. Who was present during the
examination?
Q. When did the examination start?
Q. When did the examination end?
Q. How long did the examination take?
Q. Are there any records of the
examination other than the Compulsory Medical Examination report that
you sent to the defense
attorney?
Q. May I please have copies of all
office notes generated by this examination? (Attach as an exhibit.)
Q. Before the examination, did you
request my client to fill out any documents?
Q. May I have copies of all documents
filled out by my client? (Attach as an exhibit.)
Q. Did you begin your examination by
taking a history?
Q. At the time you took a history, did
my client tell you:
-
Before January 1, 2000, she had never had any
problems with her right knee?
-
On January 1, 2000, she was in an auto crash?
-
At the time of the auto crash she was wearing a seat
belt?
-
At the time of the auto crash she was in a car that
had airbags and they were activated during the
auto crash?
-
That her right knee struck the side of the dashboard
at the time of impact?
-
After the auto crash she had a cut and was bleeding
from the area of the right knee?
-
That immediately after the auto crash, she had
swelling and pain in the right knee?
-
That she sought medical attention and was eventually
referred to an orthopedic surgeon who did arthroscopic surgery
removing the lateral meniscus of the right knee?
Comment: By using leading questions to develop
the history contained in the compulsory medical report, you can
emphasize facts that are important to you.
Q. After taking a history, did you
conduct an examination?
Q. What did you do?
Q. Did you take any range of motion
measurements?
Q. Where are these recorded?
Q. Did you use any machine or device
to test the range of motion or strength of the right leg and knee?
Q. What machines were used, where are
the findings, and what were the results?
Q. Did you do anything else before
reaching the conclusions expressed in your report concerning
my client?
Q. What were the results of your
examination?
Q. How were these results reached?
§8:53
Conclusions/Reports
Q. Are all your medical opinions
concerning my client contained in your written report?
Q. Please state each opinion or
conclusion you have reached concerning my client and the basis for
your opinion.
§8:54
Causation and Basis of His Opinion
Q. Do you agree that at the time of
surgery, my client had a torn lateral right meniscus?
Q. Do you agree that more likely than
not this torn meniscus was caused in the auto crash of
January 1, 2003?
Q. If the torn meniscus was not caused
by the auto crash, what caused it?
Q. When did it occur?
Q. What fact do you base this opinion
on?
Q. How did you obtain these facts?
§8:55 Past
Medical Care Appropriate and Related to Injury
Q. Have you reviewed all my client’s
medical records from the date of the auto crash until now?
Q. Do you agree that all the medical
treatment that she has received for the injury to her right knee
was appropriate and
necessary?
Q. Please review the list of my
client’s medical bills.
Q. Do you agree that these are
reasonable charges for the work performed by my client’s doctor
in this community?
Q. Do you agree that but for the auto
crash, my client would not have incurred treatment to her right
knee, nor the medical
bills related to that treatment?
Q. If not, please identify what caused
my client’s torn meniscus and the need for medical care?
Q. What evidence supports your
opinion?
§8:56
Opinions on Future Medical Care
Q. Do you agree, within reasonable
medical probability, that my client will incur medical expenses in the
future for:
Q. State the basis for your opinion
that my client will incur no future medical expenses.
Q. Is this opinion based on:
a. Witness testimony, and if
so, what?
b. Your review of medical
records, and if so, which ones?
c. Your review of medical
literature, and if so, what specific articles are involved?
§8:57 Lost
Wages
Q. Do you agree, from your review of
medical records and my client’s deposition provided to you by the
defense, that she missed
approximately three months from work?
Q. Do you agree, within reasonable
medical probability, that she was unable to perform the normal duties
of a waitress during this
time?
Q. Do you agree, within reasonable
medical probability, that but for her injury and the medical attention
it
required, she would not
have missed this time from work?
§8:58
Effects of Injury on Client’s Ability to Earn Income in the Future
Q. Do you agree that in the future my
client may have difficulty doing her job as a waitress because of
her knee injury?
Q. Do you agree that she will have
more difficulty standing on her feet for eight hours a day than if she
had not had a meniscal
tear?
Q. Do you agree that she will have
more problems with knee swelling than before the meniscal tear?
Q. Do you agree that she will have
more difficulty walking than before the meniscal tear?
Q. Do you agree that she will have
more problems with turning quickly than she did before the
meniscal tear?
Q. Do you agree that she will have
more difficulty walking up and down steps than she did before?
Q. Do you agree that as a result of
these things, within medical probability she is likely to miss some
time from work?
Q. If not, why not?
§8:59
Opinions on Permanent Injury
Q. Do you agree within reasonable
medical probability that my client has sustained a permanent injury as
a result of her torn
meniscus and subsequent surgical removal?
Q. What percentage of disability does
the AMA Disability Guide attribute to this type of injury?
Q. How did you calculate this
disability?
Q. What percentage of disability is
attributed to this type of injury under our state disability guidelines?
Q. How did you calculate this
disability?
Q. Do you agree that there is a
permanent scar related to the arthroscopic surgery performed?
Q. Do you agree that but for the auto
crash my client would not have incurred permanent injuries and
scarring related to her
torn meniscus and its repair?
§8:60
Current Effects of the Injury
Q. From a review of my client’s
deposition, are you aware that she is currently having problems with:
-
Standing on her feet eight hours a day?
-
Swelling in the knee area after standing on her
feet?
-
Pain in the side of the knee joint when climbing
stairs?
-
Unexpected giving away and weakness in the knee?
-
Pain in the knee?
Q. Would you agree that these
complaints are consistent with having a torn meniscus and subsequent
surgery?
Q. If not, what is your explanation
for these problems?
§8:61
Future Effects
Q. Do you agree that because of her
torn meniscus tear and subsequent repair, my client runs a greater
risk in the future of
incurring:
-
A torn meniscus on the opposite side of the knee?
-
Arthritic changes in the joint of the knee?
-
Ligamentous damage to the knee?
-
Swelling in the knee?
-
Pain in the knee?
-
Instability of the knee?
Q. Do you agree that in living her
day-to-day life, because of this meniscal tear and subsequent surgery
my client is more likely
to incur:
-
Difficulty standing for long periods of time?
-
Difficulty in walking on uneven surfaces?
-
Difficulty in walking steps?
-
Difficulty in kneeling?
-
Difficulty in squatting?
-
Difficulty in lateral motion?
-
Pain in the knee?
-
Swelling in the knee?
-
Difficulty of the knee?
-
§8:62
Areas of Agreement
Q. Doctor, would you agree with me:
-
That before January 1, 2000, my client never saw a
doctor or complained of right knee pain?
-
That on January 1, 2000, she was involved in an auto
crash?
-
That at the time of that auto crash she was wearing
her seat belt?
-
That as a result of that auto crash her right knee
struck the center console of her car?
-
That my client was seen in the emergency room
immediately after the auto crash and was found to have a swollen
right knee and a cut on the lateral side of the knee?
-
That my client was referred to an orthopedic surgeon
whom she saw within one week of the
auto crash?
-
That the orthopedic surgeon who treated her is board
certified in that specialty?
-
That the orthopedic surgeon performed an MRI of the
knee?
-
That the MRI showed a tear of the right lateral
meniscus?
-
That the orthopedic surgeon did surgery?
-
That after surgery my client participated in
physical therapy for six weeks?
-
That my client missed three months of work from the
date of the auto crash to the date that she was able to return to
work after the surgery?
-
That my client’s total medical bills for treatment
related to her right knee are $10,532.00?
§8:63
Relationship with Defense Attorney and Insurance Company
Q. Have you ever done a compulsory
medical examination at the request of this defense lawyer or his
firm before?
Q. How many times?
Q. What is your usual charge for
compulsory medical examinations for this lawyer and his firm?
Q. Is the price any different than
what you charge for other law firms?
Q. Have you ever done a compulsory
medical examination for the insurance company who insures the
defendant in this case
before?
Q. How many have you done in the past?
Q. What do you usually charge?
Q. How many compulsory medical
examinations do you average each year?
Q. Have all these been done for
insurance companies or defense law firms?
Q. Have you usually charged the same
amount for each examination?
Q. What did you charge to examine my
client?
Q. How much are you charging for this
deposition?
Q. How often are your depositions
taken each year?
Q. What do you charge for trial
testimony?
Q. On average, how often do you go to
trial?
Q. Have you ever done a compulsory
medical examination for a plaintiff’s lawyer or an injured person?
Q. Have you brought the list of all
cases in which you were asked to do a compulsory medical examination
for the defense law firm
or insurance company in this case for the last three years? If not, why
not?
Q. Have you brought a list of all
cases in which your testimony was given either in deposition or trial
for
the last three years? If
not, why not?
Q. What percentage of your yearly
income is related to doing compulsory medical examinations,
depositions, and trial
testimony?
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