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Deposing Defense Doctors, with Forms This 45-page chapter from Dorothy Clay Sims’ Exposing Deceptive Defense Doctors provides proven strategies, forms, and questions for recognizing and countering dishonest testimony from DMEs.
I. Introduction II. Before the Deposition A. Arrange for Doctor and Plaintiff to Attend B. Review Doctor’s File C. Investigate the Doctor III. During the Deposition A. Use Technology to Your Advantage B. Three Stages of a Deposition C. Tips & Techniques D. Sample Questions IV. After the Deposition A. Subpoena DME to Trial as Adverse Witness B. Make DME’s Testimony Simple and Memorable for
Fact-Finder V. Daubert/Frye Depositions: Setting
Up the Motion in Limine A. What to Do Before, During and After the
Deposition B. Depose the DME FORMS DME Subpoena Attachment for Records Doctor Research—Staff Checklist [Sample 1] Doctor Research—Staff Checklist [Sample 2] Checklist: Items to Look for in DME’s File Attorney’s Deposition Checklist
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Deposing Defense Doctors Investigating the doctor, tips and techniques,
sample questions, setting up the motion in limine, and 5 forms by Dorothy Clay Sims Excerpted from Exposing Deceptive Defense Doctors
I. Introduction II. Before the Deposition A. Arrange for Doctor and Plaintiff to
Attend §3:01 Subpoena
Doctor
§3:02 Arrange for
Your Client to Attend B. Review Doctor’s File §3:03 Review Every
Page §3:04 Bills,
Invoices §3:05 Hours §3:06 Notes §3:07 HIPAA
Violations [§§3:08-3:09 Reserved] C. Investigate the Doctor §3:10 Overview §3:11 What to Ask
For §3:11.1 General Background Information §3:11.2 Doctor’s CV §3:11.3 Medical Abstracts §3:11.4 Research Grants §3:11.5 Books Doctor Authored §3:11.6 State Licenses & Grievances §3:11.7 Lawsuits in Which Doctor Was a Party §3:11.8 Other DMEs Performed by the Doctor §3:11.9 Prior Depositions §3:12 How to Get It §3:12.1 Google the DME
§3:12.2 Visit Legal Research Websites §3:12.3 Visit IME Websites §3:12.4 Check Blog Postings §3:12.5 Contact the Doctor’s School §3:12.6 Visit the Doctor’s Website §3:12.7 Join Listservs
§3:12.8 Call Your Local Police Department §3:13 Plan Your
Approach [§§3:14-3:19 Reserved] III. During the Deposition A. Use Technology to Your Advantage §3:20 Connect to the
Internet §3:21 Have an Expert
Listen In [§3:22 Reserved] B. Three Stages of a Deposition §3:23 First Stage:
Convert §3:24 Second Stage:
Neutralize §3:25 Final Stage:
Expose C. Tips & Techniques §3:26 How to
Establish an Authoritative Source §3:27 When the DME
Makes a Mistake, Leave Him an Out §3:28 Create a
Timeline §3:29 Polarize the
Case §3:30 Limit Doctor
to Two Choices §3:31 Expose
Doctor’s Ignorance §3:32 Discuss Pain §3:33 Force DME to
Show You the Science §3:34 Show That
Doctor Does Not Know Case Facts §3:35 How Long
Should It Take? [§§3:36-3:39 Reserved] D. Sample Questions §3:40 Initial
Questions §3:41 Examination
Questions §3:42 Questions re:
Positive Test Results §3:43 Questions re:
Prior Trial Testimony; Bias §3:44 “Briarpatch”
Questions §3:45 Background
Questions [§§3:46-3:49 Reserved] IV. After the Deposition A. Subpoena DME to Trial as Adverse Witness §3:50 Why Subpoena
the DME? §3:51 What to Have
Him Bring (and Not Bring) B. Make DME’s Testimony Simple and Memorable
for Fact-Finder §3:52 Create
Graphs/Charts From Records and Testimony §3:53 Create a
Mediation Tool [§§3:54-3:59 Reserved] V. Daubert/Frye Depositions:
Setting Up the Motion
in Limine A. What to Do Before, During and After the
Deposition §3:60 Challenge
DME’s Method §3:61 Attack (and
Defend) the Science §3:62 Subpoena DME §3:63 Prepare Your
Expert [§3:64 Reserved] B. Depose the DME §3:65 Failure to
Produce Documents at Deposition §3:66 Proving DME’s
Lack of Scientific Method §3:67 Using
Daubert/Frye
to Limit DME’s Opinions on Honesty and/or Causation §3:68 Epidemiology
(Your New Best Friend) APPENDICES Appendix 3-A: Index of Fictional Deposition
Transcripts Appendix 3-B: List of Medical and Subspecialty
Websites FORMS Form 3-1: DME Subpoena Attachment for Records Form 3-2: Doctor Research—Staff Checklist [Sample
1] Form 3-3: Doctor Research—Staff Checklist [Sample
2] Form 3-4: Checklist: Items to Look for in DME’s
File Form 3-5: Attorney’s Deposition Checklist I. Introduction A fair number of attorneys choose not to depose medical experts, claiming it only tips off the other side as to the plaintiff’s strategies. That’s the claim, but that’s usually not the real reason. The reality is that many lawyers don’t want to take the time or front the money to depose an expensive expert. That’s a bad tactic both for you and your client. You need to know what the expert is going to say at trial. There may be a bomb in the case, set to blow in the middle of the doctor’s testimony, and you need to know in advance to defuse it. Furthermore, if you don’t take the doctor’s deposition, you miss a possible opportunity to limit the doctor in his or her conclusions with a Frye or Daubert motion in limine. Sun Tzu would have been great at cross-examining doctors. I’m convinced that his book, The Art of War, was the world’s first book on how to cross-examine defense medical examiners (DMEs). Sun Tzu’s theory was that war, like most of mankind’s activities, had certain financial and social patterns that one could translate into laws and use to predict behaviors. When I first began to practice law and cross-examine doctors, I found myself the victim of his fourth law, the Law of Tactical Dispositions: One may know how to conquer without being able to do it.[1]1 I knew how to cross-examine doctors; I just wasn’t able to do it. I could ask the proper questions, but the minute the doctor started talking about complicated medical issues, I was drowning. Frequently, doctors were citing complicated psychological tests to support their claim that my witness was a fraud. After receiving 30 similar opinions from the same doctor on 30 “malingering” clients in a row, I decided I’d had enough. I began taking the same tests given to my clients to see how the doctor might have manipulated the results and to get a feel for what my client was going through. I then began going around the country and interviewing the authors of the various psychological and neuropsychological tests, asking how the tests could be manipulated by unscrupulous doctors. Unfortunately, there was a very long list of examples. I started keeping a list of the ways defense doctors were creatively manipulating or outright altering the data. That list is long and continues to grow with each deposition I take. The problem was national and the problem was bad. Apparently, I wasn’t the only angry lawyer. Lawyers all over the country were furious. This chapter will teach you how to investigate the doctor and expose inconsistencies and lies. Consider the following example: A: Mr. Jones, your client is an idiot. She’s blond. I have 25 years experience practicing medicine, and blonds are among the most ignorant patients I have. Q: Doctor, did I hear you correctly? You are calling my client an idiot because of her hair color? A: Yes. That’s right. At this point, you demand that the doctor identify the articles, books and science to support his absurd opinion. Of course, he can’t provide them. You must look at medical opinions involving your cases in the same manner. Imagine how it would be to walk into a deposition and have the doctor take one look at you and walk out. It may take a couple of depositions before you get the hang of it, but you can do it. You aren’t going to take any more depositions wherein you plead for the doctor to agree with basic facts or science. You will get your concessions, but you will not be defensive. Instead, you will shift the burden of proof to the doctor, where it belongs, and make the doctor justify his opinion. You will be professional. You will be respectful and kind. However, you will also be aware of how the doctor has hidden the data or misrepresented the facts, and he simply will not want to deal with you, even if that means he has to withdraw from the case. Practice Point: Fictional transcripts on CD-ROM The CD-ROM that accompanies this book includes a set of
fictional full-length deposition transcripts of DMEs. The transcripts
address issues that commonly arise and demonstrate how to deal with
them; they show you how to put the techniques described in this chapter
into practice and give greater context to the sample questions contained
in this and other chapters in the book. See Appendix 3-A, Index of
Fictional Deposition Transcripts. II. Before the Deposition A. Arrange for Doctor and Plaintiff to Attend §3:01 Subpoena Doctor Send the DME a subpoena requesting his presence at the
deposition and requiring him to bring his entire case file, plus all
other relevant documents. See Form 3-1, DME Subpoena Attachment
for Records. If you are dealing with a doctor with sociopathic or narcissistic tendencies (see Ch. 1, Diagnosing the Doctor, §1:20, §1:40), set the deposition in your office. This gives you control from the beginning. Plus, you know you can access the internet at your office. Many doctors’ offices have equipment (an MRI machine, for example) that may interfere with the internet access on your aircard. See Chapter 27, §27:35 Aircard. Other benefits of having the deposition at your office include (1) you have access to articles and books in your office, and (2) you and your client are in familiar surroundings. The DME with sociopathic traits won’t care where you have the deposition, as long as you pay him—a lot—to travel to you. The narcissistic doctor, or the doctor with narcissistic traits (e.g., one who has both sociopathic and narcissistic traits) will raise hell because you’re not the boss of him; he gets to set the rules. If the doctor refuses to travel to your office, then take the deposition at the doctor’s office. Pay close attention to his waiting room and how he treats his staff and his patients (if he has any). A defense doctor with obsessive/compulsive traits (see Ch. 1, Diagnosing the Doctor, §1:05) will want to have the deposition in his office because he will have a greater sense of control. Furthermore, your office definitely won’t be as clean as his. Despite these potential objections, if you have no other way to take the deposition and have access to the internet, then set the deposition in your own office. The DME is a professional who is charging for his time, and there is no sound reason why you cannot set the deposition where you wish. Do not agree to have the deposition at some location other than your office or the doctor’s office. If the doctor does not want to have the deposition at his office, find out why. Go there. Look at the office itself. See what he’s hiding. Often, you may find the doctor doesn’t really have an office at all. He just rents space by the hour because he doesn’t really treat patients. §3:02 Arrange for Your Client to Attend Consider your client. If you have a sympathetic, likeable client, have the client attend the deposition in person, and seat the client right next to the doctor. If the doctor is going to call the client a malingerer or exaggerator, make him do so face-to-face. If your client has physical limitations, explain that it is perfectly fine to ask for a break or stand up and walk around during the deposition, as needed. If, on the other hand, you have a difficult client or your client has a brain injury or a condition that may interfere with sitting for a long period of time, have the client attend by phone, and have him or someone on his behalf connected to the internet. Communicate privately with your client via instant messaging. This way, if the doctor makes a statement you need to verify with your client, he is immediately available. This can be tremendously helpful because often it is the client who catches the doctor in a lie or incorrect statement. Even brain-damaged clients can have great insight. Plus, if the client attends by phone, the doctor cannot make absurd claims about the plaintiff, such as “I saw the plaintiff sit comfortably for the two-hour deposition, and he did not appear to be in pain.” This is especially important in cases involving brain injuries because the defense doctor could claim that your client is not brain-damaged because he was able to comprehend the doctor’s testimony and slipped you multiple notes during the deposition. Caution:
Don’t hide your client’s presence. Make sure you clearly announce in the beginning of the
deposition that the plaintiff, or anyone else for that matter, is in
attendance, and get it on the record. Some doctors will refuse to conduct the deposition with the plaintiff present. Too bad. The plaintiff is a party and gets to attend. If the doctor refuses to let the plaintiff attend, get the judge involved. When you send out the notice of deposition, make sure you indicate on the notice that the plaintiff will be attending live or by phone. That way it will be even more unreasonable if the doctor waits until the day of the deposition to refuse to let the patient attend. Unless the patient is unstable or disruptive, there is no reason a judge should bar the plaintiff from listening and being present. Call the judge’s chambers right away and tell his secretary you have an emergency. (You do this, of course, on speaker-phone, with defense counsel in the room and available to speak to the judge so as to avoid any ex-parte issues.) Tell the judge of the defense witness’ behavior and ask that the witness be stricken unless the plaintiff can attend. Why do you need the plaintiff there? Because the plaintiff may need to give you vital information in the middle of the deposition, and most defense attorneys won’t allow you another shot at deposing their experts after you conference with your client. Raise this option with the defense attorney, with the judge on the phone: You: “Your honor, Dr. Smith will not permit my client to be in the room when he is undergoing his discovery deposition. We have the right to have the plaintiff present under Rule ___ of the Rules of Civil Procedure. (Have your rule book handy, just in case.) It is vital to our case that the plaintiff be able to hear Dr. Smith’s testimony and advise me as to incorrect or misleading statements that may be made by the doctor that only the plaintiff would know (i.e., if he’s had prior surgery, etc.). Now, defense counsel, Mr. Jones, has refused to advise his witness to proceed. Mr. Jones, if you’ll be so kind as to permit me to come back and re-depose the doctor at no cost to me, after I’ve conferred with my client, then I don’t mind if my client’s not in the room.” Defense attorney: “Uh, your honor, we object. It’s too stressful for the doctor to have the plaintiff in the room. He just doesn’t feel comfortable testifying. We won’t agree that plaintiff’s counsel can come back either.” You: “Judge, Dr. Smith is a surgeon. He’s used to life-and-death situations. I cannot believe he can’t handle the stress of the plaintiff hearing his testimony. My client will be able to read the transcript later anyway, so he can’t avoid having the plaintiff finding out. The plaintiff will also be sitting in trial observing him while he testifies, so there is no harm, no prejudice if you grant my oral motion to compel the doctor to permit my client to attend this deposition or strike him as a witness altogether.” Judge: “Well, the rules provide that the plaintiff can sit in. I suggest, Mr. Jones, that you conference with your witness and advise him of this or you run the risk that your witness may be stricken and, at this late date, I’m not inclined to give you time to get another witness.” Practice Point: It’s your job; if you can’t do it, get another job Many lawyers either don’t think to do this or are afraid
to do this. If you are afraid, get out of trial work. You are the only
person who can prevent the doctor riding roughshod over the case, your
client, you and even the entire justice system. Do it. B. Review Doctor’s File §3:03 Review
Every Page First, check every page. Look for pain diagrams your
client may have completed. Check for letters sent by defense counsel.
Where are the doctor’s handwritten notes? Some doctors throw them away.
Many doctors will throw away medical records provided to them by the
defense so you can’t see markings or highlighted areas made by the
doctor. Practice Point: Get a stipulation; consider spoliation claim I believe this is the intentional destruction of
evidence. Even when I advise doctors in a deposition never to do it
again, they do. Why? Because they don’t want to be pinned down on some
pesky fact in the notes that was left out of the report. That is why you
want the doctor to agree, before the examination, that he will destroy
nothing. See Chapter 2, Form 2-7, Stipulation re: Parameters of Defense
Medical Examination. Consider a spoliation of evidence claim if they do. Some doctors won’t read the records at all, but
instead will rely upon a medical timeline provided to them by the
defense attorney (and conveniently left out of the file). Imagine a case
in which the doctor repeatedly claims he has read all the pages in the
records. You know he has not. No pages are folded over; there are no
markings on the pages; the rubber band around the voluminous records is
still clearly where it has always been. How do you handle this? Pick up
the documents and advise the doctor that you are putting them in a bag
for your fingerprint expert to examine the next morning. See if he
changes his story. §3:04 Bills, Invoices Look for billing statements and invoices. Often the real bill sent to the carrier or defense counsel is still on the doctor’s computer. See generally Form 3-4, Checklist: Items to Look for in DME’s File. §3:05 Hours
Look for hours tabulations or timesheets. If the doctor charges by the hour, then where is a listing of his time? Did he document and charge for time spent with the attorney? Are there other bills as well—e.g., bills for drinks at a bar with the lawyer; notations of phone calls to third parties? §3:06 Notes Does the file contain letters or sticky notes from
the doctor’s staff? Examine the file itself. Some doctors write notes
that can be significant on the file. See if the file has a number. If it
doesn’t, ask the doctor how he stores his files. I had one doctor claim
he kept his patient’s files in his garage. Practice Point: Expose “professional courtesy” practice If the doctor claims to keep his files at home, it
usually means he doesn’t have a real medical practice and only rents
space in another doctor’s office when he does exams for the insurance
company. He will claim, however, that he has an active practice. In that
case, ask him if he engages in “professional courtesy,” meaning the
doctor treats other doctors or friends for free (e.g., he takes a look
at his golf buddy’s sore elbow). This may violate federal law and is not
the same as having an active practice. See generally §3:45, Sample
Questions re: DME’s Background. §3:07 HIPAA Violations In some cases, especially those involving psychiatric or psychological issues, the doctor will have testing conducted by a third person, and reviewed and scored by yet another person, or may even send it off to an organization for computer scoring. That same doctor will do so without the knowledge or permission of the lawyer or his or her client. This may constitute a HIPAA violation. See www.hhs.gov/ocr/hipaa. Practice Point: Treating doctor also must comply with HIPAA Make sure your treating doctor knows he cannot talk to
the defense attorney or the defendant in your client’s case, as this
also may violate HIPAA. [§§3:08-3:09 Reserved] C. Investigate the Doctor §3:10 Overview
A good background check on the doctor being deposed may take some time and could be costly; it can take 7-15 hours to properly investigate the DME’s background. However, the cost is worth it and you only need to investigate each doctor once. Plus, after you read this chapter, you can have your staff do the investigation for you. Forms 3-2 and 3-3 are checklists you can give your staff to assist in background research. Have the staff member initial each area of investigation after it is completed. If you just give your staff the list and they do not initial the sections, you will get roughly two-thirds the work product. Secretaries get interrupted, take breaks, etc., and forget where they left off in the investigation. When the research is completed, Bates stamp it and bind it in volumes limited to 100 pages each. We use a local printer who charges only $1 a volume to bind it. Label each volume in very large font (e.g., 36 point), like this: Background material Volume 1 of 51 Dr. John Doe, M.D. When deposing an uncooperative DME, pull out every volume of research you have on the doctor and place it where the doctor can clearly see it. (Don’t do this at the beginning of the deposition because the doctor may feel threatened and you will lose your opportunity to get concessions. See §3:23, et seq., Three Stages of a Deposition.) Why do this? First, you are wordlessly informing the defense attorney that you have the goods on his witness, and you are prepared. Consequently, if he is going to use a doctor with this much baggage, he is going to have to cull through 5,000 or more pages of what may be very damaging material to see if he needs to file a motion in limine. But that’s only if you let him have a copy of the material. Second, this can eliminate confirmatory bias. Confirmatory bias exists when a doctor reaches a conclusion by excluding all evidence contrary to the conclusion he or she wishes to reach. The doctor can’t be so cavalier with his opinions when he sees you have multiple depositions in which he’s testified. He’s going to have to be consistent with his prior testimony. How do you store this data on your computer? You scan it via OCR (see Chapter 27, Technology, Outsourcing and Cross-Examination) so you can simply type in a word in the search function and go right to that testimony in your document, which you can have loaded on your laptop for trial and deposition.
Practice Point: Wear it on your sleeve I actually wear the doctor’s background information.
That’s right. I wear the doctor’s background on a flash drive built into
my watch. The watch costs $49.99, and you can buy one from
www.thinkgeek.com. See www.thinkgeek.com/gadgets/watches/a8bc/. This
black, plastic watch isn’t pretty, but it is durable and cheap and will
rescue you more times than you can imagine.
Practice Point: Run your office like McDonald’s Ray Croc was 52 years old when he went into a hamburger
restaurant and realized that the work was repetitive and broken down
into small components and, thus, each burger was perfectly reproducible.
How does that apply to your office and cross-examining doctors? Each
time you research a medical issue, save the research under a topic you
can identify later. Do the same thing with every doctor you depose.
Order the transcript digitally and save it in a file so that, in a year
or two, you may have an arsenal of material related to that particular
doctor. When you get good quotes from the defense doctor in a case, save
them and identify them by the page number in the deposition. That way
you don’t have to reread everything the next time you depose him. I have
some doctors on whom I have 60 volumes of material, but I don’t have to
read all 60 volumes each time I depose that doctor. Instead, I can
reproduce that burger faster and cheaper because I saved my salient
points in a document I call “Questions for Dr. Smith,” and each time
some new nugget comes in on the doctor, I dump it in that document. §3:11 What to Ask For §3:11.1 General Background Information Get as much information on the doctor as you can, even if it might seem unrelated. Lexis and Westlaw offer background research, which provides:
§3:11.2 Doctor’s CV Obtain the doctor’s CV well in advance of the deposition. A good website to help you track it down is www.almexperts.com. After you have the CV, look for what is not included. For example, many doctors who do significant forensic work for the defense provide free services to their referral sources. They often will give in-house seminars to insurance companies and law firms. They are smart enough to leave that out of their CVs because it shows bias. However, they are also smart enough to admit the truth when you ask them about it, because they know it is not unusual for a defense attorney who attended one of these seminars to switch sides. Use this to your advantage: Q: Doctor, is your CV accurate and correct as to your education, speeches and publications? A: Yes. Q: Are you biased towards the defense? A: No. Of course, not. After he affirms his CV is current and correct, point out it’s not: Q: Doctor, you give private free speeches to the defense attorneys, don’t you? Q: You left that out of your CV didn’t you? Q: When you said your CV was accurate and correct and reflected your accomplishments, speeches etc, that was not the truth, was it? Q: In fact, you didn’t want us to know you are pandering to the defense, trying to get referrals from them by offering them your time for free, right? Q: You charged me $600 an hour when I deposed you, and you made me pay up front, didn’t you? You didn’t offer to give me anything for free, did you? Look up the awards and organizations listed on the doctor’s CV by going to the relevant websites. If the doctor claims to have won, for example, the “Outstanding Physician Award of Micanopy”, your research may reveal that the honor is awarded by an organization committed to, among other things, cost-savings to the employer. The doctor could be speaking to organizations oriented towards employers or carriers, which assists him in increasing his forensic work. Ask these organizations for outlines or copies of the doctor’s speeches §3:11.3 Medical Abstracts From the CV you can get the names of articles the doctor published. Abstracts of all these articles should be available at www.pubmed.com. It’s free to look online. If you want to purchase the article, you can do it online and usually get it the same day. You can also subscribe to www.mdconsult.com and find many full articles, rather than abstracts. Order anything that is remotely related to your topic. I’ve even used articles way off topic because the doctor was so contradictory that he disagreed with his own studies. Compare the abstracts to the doctor’s CV. You may find that what the doctor listed as articles may be letters to the editor, or articles authored mainly by others, or articles that don’t exist. Occasionally, the DME has published something in a journal or book that is so clearly biased, he left it off his CV. Find it and point it out. §3:11.4 Research Grants More and more doctors are making supplemental income by doing research and applying for NIH grants. The DME’s writing in his NIH file can provide you with tremendously valuable information. Send a FOIA request to the NIH, seeking all documents related to grants awarded to the DME, including information from any subsequent progress reports that were funded. §3:11.5 Books Doctor Authored Rather than buying the doctor’s books new, create an account at www.amazon.com and order one used. You can cut your cost in half this way in some cases. §3:11.6 State Licenses & Grievances Write to the state medical board in every state in which the doctor is licensed to ask for his or her entire state file and for any grievances. (Check the internet first because some states have this information online.) Why do you want the entire file? Because you may find hidden treasures in the details. For example, let’s say you write to the board of psychology, requesting a file. They may send you documents from the doctor’s prior supervisors alleging competence. Perhaps there is a box next to “neuropsychological evaluations” that is not checked, indicating no one vouched for the doctor’s competency in that field. Point this it out in deposition when neuropsychology is an issue. What if a state has revoked a doctor’s license, but no one knows about it? Most states require doctors to provide information about license revocation when they apply for licenses in another state, but I have had cases in which the doctor did not include a revocation from another state. Caution:
Go to the source—the state medical board Many websites purport to provide grievance information on physicians. However, they may get their... (continued in pamphlet)
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