Obtaining better outcomes in medical litigation – Lesson 7

Medical illustrations, invoices, and records

Excerpted from Deposing and Examining Doctors by Kim Patrick Hart

Most trial attorneys will tell you that it is absolutely crucial for your doctor to appear live at trial. In the ordinary negligence case, I disagree. I prefer videotape and have not called an orthopedic surgeon live in years.

Videotape gives you more control of the testimony. You can take it at a time that is convenient for your doctor. It will be taken usually at the doctor’s office, in a place where he is comfortable and feels in charge. The doctor will be less nervous and will often come across more caring and professional.

Trial lawyers love control. Videotape gives you far more control than a live presentation. If during the videotape deposition your doctor says something you do not like, you can choose not to use the videotape. If some portion of the testimony appears dull and unnecessary, you can edit that portion out. It also gives you the freedom of presenting this testimony at trial whenever you want with the knowledge of exactly how long it will take to present.

§9:02       Examples: Live Testimony Gone Wrong

I believe two simple examples will demonstrate clearly why I prefer videotape over live presentations. I learned to be a trial lawyer by initially doing defense work. I was defending an automobile accident case that had been set for trial on a Thursday and Friday.  The plaintiff’s attorney subpoenaed for trial his treating neurologist. Unfortunately, the neurologist had previously scheduled a ski trip that began on that Thursday. He called the plaintiff’s counsel and asked him to videotape his testimony rather than making him miss his trip and appear live at trial. The plaintiff’s attorney, believing that a live presentation was crucial to his case, refused. The initial question and answer at the trial went something like this:

Plaintiff’s Attorney: “Doctor, would you please state your name?”

Neurologist: “My name is Dr. X. I am happy to be here today at this trial to let this jury know that there is absolutely nothing wrong with Mrs. P and that the injuries she is claiming are not real.”

Later, after I started doing plaintiff’s work, I made the mistake of calling a neurosurgeon live. He seemed to be very cooperative and though he did not want to appear live, he did not seem that resistant. His direct examination went fine, but on cross-examination the defense lawyer showed him a picture of the two vehicles involved in the auto crash and asked, “Doctor, does the vehicular damage you see in this picture suggest a crash that would have enough force to cause a herniated disc?” To which my doctor answered, “No, it doesn’t.” I later found out, when talking to him, that he was upset about having to appear live at trial and he deep-sixed me on purpose. Once you have had a few experiences like these, videotape looks pretty good.

Timing and Scheduling

§9:10       Videotape Testimony

If you are going to take the orthopedic surgeon’s testimony by videotape, I prefer to schedule the deposition within two weeks of the trial. I normally arrange for the doctor to examine my client, either immediately before the deposition or within several days of it. The advantage of having him do it immediately before the deposition is that your client is then available to be used as an “exhibit” during the videotaping.

§9:11       Live Testimony

If you are going a call a doctor live, notify the doctor’s office of the trial date as soon as it is set. Unfortunately, most trials are scheduled for a two- or three-week trial docket and your case can be called at any time during that time frame. Explain this to your doctor by letter and determine which days and times are best for him to testify. Assure the doctor that you will do everything in your power to keep any inconvenience to a minimum.

At your pre-trial conference, obtain an agreement from all parties that expert witnesses can be called out of turn. Most defense lawyers will agree to this because they have the same scheduling problems you do. This gives you the flexibility to call your doctor at a time that is most convenient for him during your two or three days of trial.

When calling doctors live, I find it best to put them on either first thing in the morning, right before or after the lunch break, or at the end of the day. These time periods seem to be least intrusive on the doctor’s schedule.

Trial Exhibits

§9:20       Medical Illustrations

Whether you are calling the doctor live or by videotape, do not forget your trial exhibits. In larger cases, I like to hire medical illustrators to prepare exhibits for use while examining my orthopedic surgeon. You should plan on giving these people at least six weeks of preparation time before your testimony is needed. Most send one or two preliminary sketches to be approved by your orthopedic surgeon before they are prepared. These exhibits prove to be excellent teaching aids for the doctor and help him to more clearly communicate the nature of the injury and treatment. I also find that trial illustrations help the doctor look more competent and relaxed when explaining things to the jury.

§9:21       Medical Bills

The other major exhibit I use with treating physicians is their medical bills. I normally do not put the actual bills into evidence. There is really no purpose for this and it can have bad results. Often in these bills there are references to collateral sources such as health insurance, auto insurance, or write-offs of portions of the bills. You do not want the jury to know about these things.

A better technique is to prepare a medical bill summary sheet simply listing the providers and the total of the bills. Then have the defense stipulate that it can be admitted into evidence. The defense will usually agree to this.

§9:22       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 and often will, but I usually do not, and more often than not, the defense does not either. Medical records may also contain comments that do not particularly encourage the jury to see your client in the best light. Offhanded comments in orthopedic records concerning drug habits or sexually transmitted diseases can be devastating.


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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 Doctors. This 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:

  • Chiropractic

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