By Ronald G. Bankston and John A. Tarantino

§244 Impartial Medical Expert

Counsel will often have to deal with, cooperate with or confront an impartial medical expert or evaluator (“IME”). In many ways, the term “impartial” is inaccurate and a misnomer. In reality, this physician is most often associated with defense counsel and is part of the defense team. He or she is retained by an insurance carrier to examine the plaintiff and give an opinion on the nature, extent, duration, diagnosis and prognosis for any injuries allegedly sustained. Often the IME is retained solely to question the diagnosis and prognosis of the plaintiff’s treating physicians in hopes of diminishing the value of the plaintiff’s injuries or calling into question the proximate causation between the accident and the injury. The IME generally examines the plaintiff by way of stipulation or agreement between counsel or where the defense has filed a request under the applicable rule of civil procedure for the plaintiff to submit to such an examination. See Fed. R. Civ. P. 35. However, there are ways to use the IME to your advantage, set forth in the checklist which follows.

§244.1 Checklist of Ways to Use IME to Plaintiff’s Advantage

1. Negotiate with defense counsel or the adjuster to determine who the IME will be. In this way, you may be able to select a physician who will more likely render an impartial opinion. This gives you greater rights than if a court orders a medical examination under Rule 35. The court’s principal concern should be whether the physician is qualified to examine the plaintiff and render an opinion.

2. Obtain a list of the qualifications and background of the IME from defense counsel or from the adjuster. A resume or curriculum vitae should be obtained. It will allow you to gain immediate access to information that can be useful in the future if you should have to cross-examine this witness at trial.

3. Obtain information from the adjuster or from defense counsel on how many previous occasions the IME has examined claimants for the carrier or for the defense and on how many occasions the IME offered deposition or trial testimony on behalf of the defense. This accomplishes two goals. First, the adjuster or defense counsel will recognize your knowledge of and ability to deal with the bias and prejudice of the IME and will be therefore more likely to select an examiner who is unbiased. Second, the information you obtain can be used effectively to cross-examine the IME at trial on issues of bias or prejudice.

4. When you have learned the IME’s identity, consider the following alternatives:

(a) forward all pertinent documentation, medical records and reports to the IME to insure that he has read and reviewed them, or

(b) refrain from providing him with any information (leaving it to the defense) so that at time of deposition or trial, you can question the accuracy and completeness of the IME’s evaluation, conclusions and opinions based on a lack of review of pertinent medical records, factual information or other reports that should have been made available to him.

5. Remember that you and your client have a right to receive a copy of the IME report. Review the report carefully to determine potential areas of cross-examination for the IME. Also determine whether the report should immediately be shared with the plaintiff’s treating physician, or, alternatively, whether it may serve as the basis for a suggestion that an additional IME be undertaken.

Note: The specific strategy you undertake in this regard depends on the facts and circumstances of the case. For example, if it appears the case can settle reasonably, it may be in your client’s best interest to forward sufficient information to the IME making it more difficult for him to downplay or diminish the plaintiff’s injuries. Therefore, it is more likely that his report, even if not advantageous to the plaintiff, will contain sufficient grounds for the carrier to offer a reasonable settlement amount. If it appears that the case will probably be tried, do not to send the information and reports to the IME. Wait until deposition or trial to attack his opinion on the grounds that it was reached without having access to all necessary and pertinent information. For further information, see Moenssens, “‘Impartial’ Medical Expert: A New Look at an Old Issue,” 25Med. Tr. T.Q. 63 (1978); Gelfland, “Cross Examination of Defendant’s Doctor,” in Anatomy of a Personal Injury Trial (R. Beloud. ed 1967); Murphy, “How to Cross-Examine Defense Doctors,” 2 Trial Lawyers Q. 33 (1965); Kramer, “Cross Examination of the Medical Expert,” 13 Trial 26 (1977); Blake, “Neutralizing the ‘Independent’ Defense Medical Expert,” 34 Trial 2 at 28 (Feb. 1998). For a checklist of deposition examination regarding the impartial medical expert, see §455.1 infra.

6. Remember that generally the defense will only be entitled to one physical examination of an injured plaintiff and will not be entitled to conduct psychological examination without leave of a court. A psychological examination is regarded as more invasive than a physical examination., but courts will generally allow permission for a psychological examination by an IME whenever the plaintiff has placed his or her mental condition at issue. However, do not assume that in every case where plaintiff’s mental condition is arguably at issue that a full psychological exam is warranted. Rather, a psychological exam should only be justified “when there is a specific claim or mental or emotional injury, either independent of or in excess of that usually associated with physical injury, or when the plaintiff intends to call expert witnesses on the issue of psychological injury.” Blake, supra at 29; see also Davis v. Superior Court, 9 Cal. Rptr. 2d 331 (Cal. Ct. App. 1992).

Note: If the court allows a psychological examination, attempt to obtain permission to attend the examination. You may be able to negotiate this arrangement with defense counsel in lieu of arguing a motion for a psychological examination (particularly if you believe that the motion will be granted). But see Cal. Civ. P. Code § 2032(g) (West 1983 & Supp. 1997) (plaintiff’s counsel may attend a physical, but not psychological or mental examination). If a psychological examination takes place, make sure that you obtain a copy of the IME’s written report and carefully review the history, findings, all diagnoses, prognoses, and conclusions and review each of them carefully with your own psychological expert. Also, be particularly careful that the examination does not turn into a “deposition” by the IME. Tell the plaintiff what to expect and what should and should not be discussed. For example, the IME should not be discussing liability and compensation issues, and any discussion of the facts should be limited simply to how the injury occurred and whatever its physical and psychological effects may be. Finally, if you are allowed to attend the examination, be careful not to put yourself in a position of having to testify as a witness in order to contradict or impeach the IME. Rather, try to have someone else attend, an associate or legal assistant, with that person taking contemporaneous notes so that, if necessary, he or she can be called as a witness at trial.

§245 Subsequent Treating Physician

In cases where the plaintiff claims medical negligence (see Ch. 9, infra) the plaintiff will have a subsequent treating physician. Counsel must be prepared to deal with the fact that a subsequent treating physician may prove to be a beneficial witness for and ally of the defense. See Smith & Lindamood, “The Subsequent Treating Physician: Defense or Plaintiff’s Witness?” 25 Trial5 at 65 (May 1989). In their article, Smith and Lindamood advance four reasons why the subsequent treating physician’s testimony will aid the defense case:

First, this witness is more familiar with the facts of the case than anyone else the defendant could ask to review the records.

Second, he is frequently a friend or an acquaintance of the defendant doctor, who lives in the same community, or has a similar medical practice or specialty.

Third, he is often someone the insurance carrier or defense lawyer knows.

Finally, the subsequent treater and the insurance company are usually hostile toward medical negligence cases and therefore willing to participate in the “conspiracy of silence” that exists in much of the medical community. Id.

The following checklist should be reviewed by both plaintiff and defense counsel in any medical negligence or malpractice case involving a subsequent treating physician.

§245.1 Checklist on Dealing with the Subsequent Treating Physician

1. Prepare for the physician’s deposition:

(a) Will the subsequent treating physician likely testify that the defendant acted with a proper standard of care in treating the plaintiff?

(b) Alternatively, will the subsequent treating physician refuse to offer an opinion regarding the standard of care issue?

(c) What explanation will the subsequent treating physician likely give for the patient’s injury? (e.g., “an unfortunate result,” unrelated congenital, physical or mental problems, patient neglect, abuse or actions contra-indicative to defendant physician’s advice.)

(d) Will the subsequent treating physician be hostile? (i.e., has he been named as a defendant in a medical malpractice case; does he believe that the plaintiff’s suit will lead to higher malpractice premiums, increased regulation, etc.; is he biased against plaintiffs who bring medical malpractice claims?)

Note: If you can demonstrate that the subsequent treating physician is a hostile witness, you will be allowed under the Federal Rules of Evidence, and under most state counterparts, to examine the subsequent treating physician at deposition or trial by leading questions, as if on cross-examination. See Fed.R.Evid. 611(c); J. Tarantino, Trial Evidence Foundations §120 (1986).

2. Controlling the subsequent treating physician:

(a) Examine the physician thoroughly on the plaintiff’s condition as presented to him in the initial visit. This can help establish a breach in the standard of care, for “if the defendant had followed the appropriate standard of care, the plaintiff would not have required the subsequent treater’s services.” Smith & Lindamood, “The Subsequent Treating Physician: Defense or Plaintiff’s Witness?” 25 Trial 5 at 65 (May 1989).

(b) Examine the physician on all communications received about the case or the plaintiff’s injuries from the defendant doctor, or any other defense representative (e.g., times, dates, parties present, reasons for communications, substance of matters discussed).

(c) Treat the physician as hostile: move to strike nonresponsive portions of answers, be prepared to address and be knowledgeable about plaintiff’s medical problems; have learned treatises available for cross-examination and impeachment purposes, etc.

(d) Examine how the subsequent treating physician’s care and treatment of the plaintiff has differed from the defendant’s care and treatment.

(e) Obtain admissions from the subsequent treating physician that the services he rendered are within the standard of care and the costs for them are reasonable.

Note: If the subsequent treater’s care differed from the defendant’s care this fact may be an implicit recognition that the initial care was substandard. Moreover, the necessity of the subsequent care and treatment and the reasonable cost for them are important, as “plaintiff’s lawyer will often find that the inferior care the defendant originally provided increased the medical cost and necessity of the plaintiff seeking the subsequent treater’s services.” Id. at 66.

(f) Examine the subsequent treater carefully on the patient’s injury and have him describe the injury in detail.

Note: This testimony will aid plaintiff’s expert (generally a testifying but non-treating physician) in further understanding the nature and extent of the client’s injury. Id.

(g) Examine the subsequent treating physician on issues of present and future disability.

Note: If the subsequent treater testifies that the plaintiff suffers present, or will suffer future disability, then “a good approach is to allow the witness to deny that the plaintiff’s future problems are related to the subsequent medical care that he provided.” Id. Or, otherwise stated, the subsequent treater will be confirming that the plaintiff’s future damages and future problems have resulted from the defendant physician’s substandard care.

3. Resolving doubt:

(a) Require that the subsequent treater define any medical terms, phrases or jargon used.

(b) Have the subsequent treater read from any important parts of the medical chart so counsel will not misunderstand about the treater’s care, treatment and notes.

Note: It is particularly important that any illegible handwritten notes be “interpreted.”

4. Recognizing authority:

(a) Ask the subsequent treater to identify texts, treatises or articles he or she considers authoritative on the medical conditions relevant to the case.

(b) Ask the subsequent treating physician if he or she recognizes the defendant physician as an expert in the areas relevant to the plaintiff’s case.

(c) Ask the subsequent treating physician if he or she recognizes the plaintiff’s experts as authorities in the areas relevant to the plaintiff’s injuries.

5. Examine the subsequent treater carefully on his or her qualifications and experience.

(a) If the testimony is beneficial to the plaintiff, his or her qualifications and experience as an expert will aid the plaintiff’s case.

(b) If the testimony is not helpful, and supports the defense, question the subsequent treater on any prior expert testimony he or she has rendered for the defense at deposition, trial or any previous consultation in defense cases.

(c) Finally, ask the subsequent treating physician if he or she has been contacted by the defense to serve as an expert witness on its behalf, and if so, whether he or she has agreed or declined to serve as an expert witness.

6. Establishing the client’s credibility.

(a) Ask the physician if he or she has ever refused to treat a patient who was considered to be untruthful.

Note: This question, according to certain commentators, “serves two purposes: to show your client’s veracity and your physician’s honesty and morality. Physicians typically can answer this question based on their experience with many patients in clinical settings and [t]hey have been able to observe behavior patterns with the objective tests and observations made clinically do not comport with the patients’ subjective complaints.” Jones & Subar, “Proving What Seems Unprovable,” 32 TRIAL 12 at 47, 49 (December 1996).

(b) Ask the physician whether the client’s symptoms or behavior would in any way lead him or her to question the client’s honesty.

(c) Ask the physician whether the patient’s complaints and the physician’s findings are consistent.

Ronald G. Bankston is a partner in the Houston, Texas office of the litigation firm of Godwin Pappas Ronquillo, LLP, and has been a practicing trial lawyer for 30 years. Mr. Bankston is Board-Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. He was first certified in 1985, and has been re-certified every five years since, most recently in 2005.

Mr. Bankston is admitted to practice by the State Bar of Texas and Supreme Court of Texas, the U.S. District Courts for Southern and Eastern Districts of Texas, U.S. Court of Appeals for the Fifth Circuit and the U.S. Court of Claims in Washington, D.C. He is a member of the American Board of Trial Advocates (ABOTA), a Life Fellow in the Texas and Houston Bar Foundations, a Sustaining Member of American Association for Justice and Texas Trial Lawyers’ Association, a Member and Past Director of Houston Trial Lawyers’ Association, and a Member of the Attorney-Mediators Institute and the Association of Attorney-Mediators.

In addition to his private practice, Mr. Bankston has also served as Special Assistant Disciplinary Counsel for the Texas Commission on Lawyer Discipline. He is also Academic Advisor and Lead Instructor at Rice University in the Rice University Paralegal Certificate Program.

A veteran as lead counsel in more than 100 jury trials, Mr. Bankston has spent his adult life counseling and representing individuals, families, small businesses, professionals, corporations and governmental entities. As a trained mediator, Mr. Bankston is often selected as a mediator by opposing parties and their attorneys, and he receives frequent appointments as a mediator by District Judges in Houston. He has provided mediation services to a wide variety of parties and attorneys, and his experienced “voice of reason” and patient persistence has facilitated the resolution of many especially difficult, complex disputes.

Mr. Bankston has served and been recognized as a Distinguished Faculty Member for the Houston Bar Association Continuing Legal Education Program, and a Guest Lecturer and Instructor in Trial Advocacy at the University of Houston Law Center. Mr. Bankston has also been an invited Lecturer on Personal Injury, Mediation, Product Liability, Premises Liability, Construction Liability, Water Park and Aquatic Safety Liability and Rental Equipment Liability.

Featured in Who’s Who in American Law, Mr. Bankston is also AV-rated by the national Martindale-Hubbell Legal Rating System, the highest rating for legal ability and ethical conduct, and has also been recognized nationally by Martindale-Hubbell as a Preeminent Attorney in the fields of Personal Injury, Product Liability and Toxic Tort.

John A. Tarantino is a trial attorney and principal in the law firm of Adler Pollock & Sheehan P.C. with offices in Providence, Rhode Island and Boston, Massachusetts. He has served as Chair of the firm’s Litigation and Executive Committees and presently holds the office of President. Mr. Tarantino lectures frequently on trial techniques in national, state and local bar and trial lawyer associations, from both the plaintiff and the defense perspective, and is the author of several legal texts including Litigating Neck & Back Injuries, Trial Evidence Foundations, Commercial Premises Liability, Premises Security: Law & Practice, Strategic Use of Scientific Evidence, Personal Injury Trial Handbook, Estimating & Proving Personal Injury Damages and Environmental Liability Transaction Guide. He has authored over 200 articles, columns, essays and reviews on discovery, procedure, trial strategy, product liability, liquor liability, premises security, forensic evidence, commercial law, criminal law, legal ethics, professionalism, environmental law and insurance coverage.

Mr. Tarantino is a member of the United States Supreme Court, Rhode Island and Massachusetts bars, the ABA, ATLA (Defense Member), DRI, American Judicature Society, the National Association of Criminal Defense Lawyers, the American Inns of Court (holding the rank of Barrister), the American Law Institute, the Defense Counsel of Rhode Island, the National Italian-American Law Society, the Justinian Society and the St. Thomas More Society. He is also a member of the Trial Practice and Litigation Sections of the ABA, serves on the ABA’s Subcommittee on Organizational Sentencing Guidelines and has served as Vice Chair of the ABA Committee on Scientific Evidence.

From 1984 through 1993, Mr. Tarantino served as Chair of the Public Relations Committee for the Rhode Island Bar Association. From 1997 through 1998, during the Rhode Island Bar Association’s Centennial Year, he served as President of the Rhode Island Bar and previously served as that Association’s President-Elect, Vice President and Treasurer. He is also a former Chair of the Rhode Island Bar Association’s Ethics and Professionalism Committee, has served as Chair of the Bar Association’s Ad Hoc Committee on Lawyer Advertising, and served as Co-Chair of the Committee on Judicial Independence. He continues to serve in the Rhode Island Bar Association’s House of Delegates. He served as President of the New England Bar Association from 2002 through 2003, and served as President of the Defense Counsel of Rhode Island from 2003 through 2004. He is a member of the National Conference of Bar Presidents.

Mr. Tarantino was named “Lawyer of the Year” for 2002 by Lawyers Weekly USA, one of the ten lawyers in the United States to receive this honor and recognition. He is also recognized in Best Lawyers of America in the fields of personal injury litigation, as well as commercial and business litigation; and he is recognized in Chambers USA America’s Leading Business Lawyers in the field of litigation. Additionally, his peers have honored him, selecting him as one of the “Best Lawyers in Rhode Island” in the field of litigation. He is a Fellow of the American College of Trial Lawyers and a Fellow of the International Academy of Trial Lawyers.