Obtaining better outcomes in medical litigation – Lesson 3

Obtaining affidavit, two meetings

Excerpted from Deposing and Examining Doctors by Kim Patrick Hart

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.

§8:10       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 8:20 Treating Orthopedic Surgeon’s Pre-Suit Affidavit: Torn Rotator Cuff





BEFORE ME, the undersigned authority, this day, personally appeared Dr. Bobbie Bones, who, after being first duly sworn, deposes and says:

  1. My name is Bobby Bones and I am a Board Certified Orthopedic Surgeon, practicing in Fort Myers, Lee County, Florida.

  2. On August 15, 2007, Frank Hamm was referred to my office from the emergency room of Cape Coral Hospital. At that time, Frank Hamm experienced left shoulder pain, caused by a motor vehicle accident on August 15, 2007. X-rays taken on that day suggested internal derangement of the right shoulder with a possible rotator cuff tear. I ordered an MRI arthrogram of the shoulder.

  3. The MRI showed a full thickness tear of the supraspinatus tendon with a 4cc retraction. I recommended shoulder surgery to Frank Hamm and this was performed on September 23, 2007, at Cape Coral Hospital. I performed an arthroscopic debridement of the labrum and an open rotator cuff repair of the left shoulder. This was the largest rotator cuff tear I have repaired so far in my career.

  4. It is my opinion, within reasonable medical probability, that Frank Hamm’s shoulder injuries were caused by the auto crash of August 15, 2007, so it can be said that but for this auto crash, he would not have incurred these injuries or required surgery.

  5. It is my opinion within reasonable medical probability that Frank Hamm has incurred a permanent injury related to his shoulder as a result of the auto crash of August 15, 2007. I believe he has a 5% permanent partial disability related to this shoulder injury using the AMA Guidelines for Disability Impairment.

  6. It is my opinion, within reasonable medical probability, that Frank Hamm, in the future, will have episodes of occasional pain and stiffness related to this injury. On those occasions, he will require Cortisone shots and physical therapy. His injury will inhibit his ability and enjoyment of recreational sports such as football, basketball, and baseball.

  7. I have reviewed the medical bill list attached to this affidavit. It is my belief within reasonable medical probability that all of these bills were incurred because of injuries received by Frank Hamm in the auto crash of August 15, 2007 and are reasonable for the services given.

FURTHER, Affiant sayeth not.


Bobby Bones, D.O.

Subscribed and sworn to before me as personally known this ___ day of _________, 20__.


Notary Public,

My commission expires:

§8:78       Preparing the Orthopedic Surgeon for Deposition

If you took the time to look through the cases in a state wide verdict reporter system, you’d quickly discover that orthopedic surgeons are the main treating doctors in most personal injury cases. This makes sense because the usual result of serious trauma is a broken bone.

As a result, orthopedic surgeons have their depositions taken constantly. Most of them have set up office procedures to schedule legal matters only on certain days. For many of them, it’s a nuisance. So they try to spend as little time as possible both preparing and attending their depositions.

That’s why it’s so important to insist on two pre-deposition meetings with your doctor. They don’t have to be long, as little as 15 minutes can be effective, but by seeing her twice within a week of the deposition, you underline the importance of her testimony and make sure that she is prepared to handle the weak spots of your case.

Once you get the attention of your treating orthopedic surgeons, they are usually very cooperative. Most want to help their patients. They also like the idea of being prepared to handle aggressive cross-examination from the defense. They take pride in their work and don’t want to look foolish.

My preference is to meet with the doctor initially a week before the deposition. If I can get as much as a half hour of her time, I’ll take it. If not, I’ll settle for 15 minutes.

At the first meeting, I review the affidavit the doctor has previously signed in the case. I recommit her to the issues that are important to my client. I make sure that she feels comfortable with the opinions she has expressed in the affidavit and has no problem repeating them during her deposition.

I also make sure that I have a complete copy of her medical bills and records.

Next, I review the weaknesses of our case and solicit her thoughts on how to best deal with them. In a rotator cuff situation, this usually involves dealing with the defense’s expected argument that the problem is pre-existing. If my client has been a manual laborer all of his life and does work that requires repetitive arm movements above the shoulder, I share that with the doctor. I warn the doctor that the defense will try to use that fact to suggest that this rotator cuff tear was the result of irritation to the tendon over a long period of time.

I bring to this first meeting not only my client’s past medical records, but a chronology of them that is easy to review. I point out to the doctor that my client had no previous shoulder complaints and was fully engaged in his occupation up until the day of the auto crash.

This places the treating physician in a position where she can honestly say that although the client’s career may have made him more susceptible to this kind of injury, it is clear from his previous medical records that he did not have a rotator cuff tear before the auto crash.

It is also helpful to review film and surgical reports. MRI findings often allow your doctor to testify that your client would not have been able to work if the tear had existed before his accident. Further, observing the tear during surgery, the orthopedic surgeon can express the opinion that it looked like it had occurred recently.

These same techniques can be used even if your client has had previous complaints of shoulder pain. For instance, it is not unusual for working men and women to see a doctor for shoulder problems sometime in their lives. Often initial treatment is cortisone shots. Normally, this takes care of the situation and the doctor does not see the patient again. If that is your situation, the doctor can easily testify that one or two previous complaints of shoulder pain do not suggest your client had a previous rotator cuff problem. There are many other shoulder ailments that can cause pain. If your client had a massive tear before his auto crash, a cortisone shot would not have solved the problem and he would have come back to the doctor still complaining of pain.

Prior to the deposition, it is always important to make sure your doctor understands what her office actually charges for medical procedures. Most truly do not know. They have to ask their bookkeepers. During her deposition, you want the doctor to be able to testify what the average costs of office visits, x-rays, cortisone shots and physical therapy are, so make sure your treating physician has this information before she is deposed.

The above advice came from…

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How to challenge the compulsory medical examiner

Do not try to out-doctor the physician.  Instead, change the playing field to an area where you are the expert.

Defense doctors know they were hired to minimize damages, and will answer open-ended questions in a way that helps their client’s cause.  Do not expect them to give a fair or even honest answer.

You must control them by asking leading questions and using their written CME report and deposition to hold their feet to the fire.  Begin your cross-examination with points of agreement regarding causation and injury, creating bits of evidence that can be woven into your final summation.  Look for inconsistencies in the doctor’s testimony and bring them out in cross-examination.

These strategies and other proven approaches are detailed in Kim Patrick Hart’s Deposing and Examining DoctorsThis practical book supplies pattern questions and outlines for medical depositions and examinations regarding injuries commonly encountered by trial lawyers.  The pattern questions are supported by tactics, medicine, and four-color illustrations.

Covers depositions, trial examinations, and medicine for:

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