by Kim
Patrick Hart and 8 medical specialists
Deposing difficult doctors
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:
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Offers strategy and
tactics based on decades of experience with doctors,
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Provides medical information on the
injuries you are most likely to encounter within each specialty,
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Demonstrates those injuries with
professional-quality four-color medical illustrations usable as
exhibits,
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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
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Soft Tissue
Injuries of Neck, Shoulder, and Back
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Bulging and Herniated Discs of Cervical
and Lumbar Spine
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Headaches
2. Neurologists
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Cervical Strain,
Sprain, and Whiplash
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Herniated and Bulging Discs
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Post Traumatic Myofascial Pain Syndrome
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Complex Regional Pain Syndrome
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Facial Nerve Injuries
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Paraplegia and Quadriplegia
3. Orthopedists
4. Neurosurgeons
5. Physiatrists
6.
Neuropsychologists
7. Dentists and
Oral Surgeons
8. Plastic Surgeons
15 practice tips from the book
Handling
compulsory medical exams
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
Updated annually. ISBN
1-58012-115-2. Price: $129.00
B7
View and Print the Brochure
Related Titles:
Deposition Checklists and Strategies
Guerilla Discovery
Handling
Federal Discovery
How to Prepare for, Take, and Use a Deposition
Model Interrogatories
Triple-Threat Discovery Forms
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