Lawyers PI Program
 
“Building a PI Practice”

 #53

 From the Desk of:

 Mark Studin DC, FASBE (C), DAAPM, DAAMLP


"Testifying & Deposition"

 

Testifying and rendering a deposition are two of the easiest processes for a doctor to do. It is also the “scariest” thing for a doctor who has never experienced this before. I receive numerous calls per week asking, “How do I do a deposition?” or “What should I expect in a trial?” The answer is always, "It’s easy," and I spend the next few minutes going over the basics with the doctor. After 15 minutes, the doctor is comfortable to go through the process and you will be too after you read this.

 

The first thing you must remember is who knows more about the spine…the doctor or the:

 

  1. Stenographer
  2. Plaintiff’s Lawyer
  3. Defendant’s Lawyer
  4. Judge
  5. Jurors
  6. Bailiff

 

I just covered every person in the courtroom or the deposition and no one knows more than you regarding the spine or healthcare. You are the expert. Therefore, all you need to know is the specifics of the patient’s case and the rest is easy.

 

The first time you testify in either a deposition or courtroom is always a little frightening because it is new and you don’t know what to expect. Usually you expect the worse and don’t sleep the night before, at least that was my experience. The reality was my first testimony was a nightmare…I was terrible, but you don’t have to be!

 

The reason I was terrible is that I wasn’t prepared. My paperwork was a nightmare, I didn’t review enough of the case and in retrospect, I should have known every question asked. Needless to say, the lawyer who is still in practice and it is 17 years later, has never and will never consider me for an expert witness or refer a client to me. What’s worse is that through the years he has leveraged many of my active patients who he represented, to seek healthcare in other facilities so that both myself and my paperwork wouldn’t negatively impact his practice.

 

During the first decade and a half of practice, I rendered horrible work to the legal community. Many of whom I have met with and shared with them the “new and improved Dr. Studin” to gain their respect and referrals, but this one guy to this day, will not even give me the time of day. I have often referred to him as the “ass,” but in reality, I was the ass because I did not adhere to the 6 P’s. I was not prepared and my paperwork, quite frankly…sucked!

 

When I go to court, I bring with me the entire chart because the defense lawyer and the courts already have an advanced copy of all of your records and have picked through them to determine where the weakness is in your potential testimony. On what to prepare for a deposition or trial, see the chart at the end of this consultation for a complete list.

 

By creating a concise narrative as I have shared with you in the prior 52 consultations, this will prepare you for 90% of the questions that both the plaintiff’s (your patient’s lawyer) and the defense’s lawyers will ask. It is critical that you have your narrative prepared well prior to the court or deposition date. If you haven’t created one, then do so and make sure that you get it to the lawyer at least 30 days prior to the case so the lawyer can submit it to the courts and be accepted for evidence.

 

When you first get on the witness stand you will be sworn in, and then credentialed. This process can take as little as 5 minutes or a minimum of 3 hours depending upon how bad the defense lawyer wants to discredit you as an expert. It is here that your curriculum vitae (CV) becomes critical. With a well prepared and “appropriate” CV, this process becomes benign and will allow you to testify to the true condition of your patient. The defense lawyer will use this as an avenue to raise doubts about your expertise by pointing out areas that are NOT your specialty.

 

Years ago, I testified in Manhattan, NY and was on the witness stand for 14 hours over 2 days. The first 3-4 hours was on my CV. The defense council wanted to know every detail about my CV and when we got to MRI’s, he requested from the judge that I be disqualified from testifying or remarking in any way about the MRI results. He wanted to preclude me from using it as part of my diagnosis and from relying in any way on the results as part of my testimony. His argument to the judge was that since I am not a radiologist, and he does not have the opportunity to cross examine the expert (radiologist) and the MRI information hasn’t been admitted into evidence prior, then it should not be permitted as “hearsay.”

 

Hearsay Evidence

Evidence that is learned from someone else. It does not derive its value from the credit of the witness testifying but rests upon the veracity of another person.

 

As you can see, hearsay is not admissible in any court in the nation and the defense counsel had a very strong argument to the courts (judge) in my case. The plaintiff’s lawyer objected to the request for my testimony to be restricted and the judge asked him on what grounds. His reply was to refer to my CV and the following entry:

 

Diplomate Studies in Applied Chiropractic Science, Radiography and MRI principles, procedures and interpretation.Life Chiropractic College West, New York, NY, 1992

 

Based upon that entry, the judge asked me 1 question, “How many MRI’s have you interpreted?” Based upon my answer of 1000’s and my credentials to allow me to be an expert based upon education, he qualified me as an expert on MRI and allowed my opinion to include MRI findings.

 

The next hurdle was regarding MRI’s was to allow my narrative to be accepted as evidence on MRI findings although I would be reviewing the actual films in court. My narrative read, "I have reviewed the following MRI “FILMS” and conclude the following..." If I would have written that I had reviewed the following MRI’s and concluded the following, it could have been challenged and most likely not allowed because my paperwork was vague, as I didn’t clarify that I reviewed the films and not just the report.

 

Sound picky? You bet, but this is how the courts function and what the lawyers have to go through in prevailing in a case. This is only one very small example of why lawyers want to work with some doctors and not others. They are focused equally on both the findings, and how those findings are articulated on paper. Even with positive findings, many times those results will be inadmissible. In other words, it as if they never existed because the lawyer cannot get them into testimony or evidence. Be prepared, your CV is critical.

 

After you are credentialed, the plaintiff’s lawyer will ask you to go through the case, the examination and the findings usually asking you to explain how each test was performed and the significance of the positives. This is a major reason why I have you include on your narratives, how each test is performed and the significance of a positive. Not only does it help the lawyer understand when you first give them the narrative, but I can’t tell you how many times, on the witness stand I forget exactly how Bechterew’s Test (i.e.) is performed. It’s all laid out for me on my narrative, as if I created my own “cheat sheet” for trial.

 

You could then be asked to go through every visit and explain your SOAP note for each visit. The benefit of a chiropractor testifying over an orthopedist or neurologist is that we have our hands on our patients multiple times weekly as a rule. We understand the continuum of care and have witnessed the loss of function as a result of bodily injury. A good lawyer will get that out of you. The defense lawyer upon cross examination will try to discredit you from your paperwork if in fact you state that the patient has a loss of function, but it was not documented on your SOAP Note. Therefore, your SOAP Notes become a critical component of the documentation for a medical-legal case as it will follow you in to the courtroom and be used against you if it is incomplete.

 

Your narrative will cover the “personal, social and work functional losses” as described in the consultations, however there needs to be references in your SOAP notes that will substantiate those losses described in your narrative. In the SOAP note, you need to create an entry (if clinically present…of course) stating difficulty in bending or sitting or lifting as a result of the pain or whatever difficulties your patient has shared with you in the Subjective portion of the SOAP note. In the Assessment portion, you can certify that to be true by stating that the patient’s limitation to bend is corroborated by the persistent spasticity or lack of motion or pain upon exertion in the lumbar spine. This sets the foundation for certifying the validity of your claim in the narrative.

 

You are not likely to be taken apart on the medicine. Cross-examination is not a chiropractic school oral exam. This is especially true if you practice "traditional" medicine/chiropractic, with well-established methods of treatment which have been generally accepted in the chiropractic community and literature. In this case, the defense attorney is unlikely to "argue the health care" with you.

 

If your practice includes "less traditional" methods (i.e. treatment methods that may be experimental or less accepted in the community and literature), the defense attorney may ask you to explain the treatment, the literature on testing and support for such treatment, and whether others in the chiropractic community practice in a similar manner. Be prepared to answer these questions as best you can. Your job is not to convince the opposing attorney, but to convince the jury that your treatment is effective. If your treatment helped your patient, the jury will probably not care if it was non-traditional.

 

When answering question, make sure you just answer the question and do not offer 1 piece of additional information when being crossed examined by a defense lawyer. As an example, here is a typical case and a question:

 

“Your patient, Mrs. Jones was a seat belted river on January 27, 2008 at 10:41 AM, at the intersection of Route 347 and Main Street, stopped at a traffic light and suddenly without notice, was struck from the rear by a green mid-sized Honda.“

 

The lawyer has you on the witness stand and asks you the question, “Can you tell me what happened on January 28, 2008 at 10:41 AM to Mrs. Jones?”

 

Your answer is…and you are allowed to look at your notes…I made the same mistake…I said, “At the intersection of Route 347 and Main Street, stopped at a traffic light and suddenly without notice, Mrs. Jones was struck from the rear by a green mid-sized Honda.“

 

Again, I ask you the same question, “Can you tell me what happened on January 28, 2008 at 10:41 AM to Mrs. Jones?”

 

You will probably say the same thing even if I ask you 50 times…The answer to the question is, “Yes, I can tell you what happened to Mrs. Jones on January 28, 2008 at 10:41 AM.”

 

This is not a trick question; it is how you should frame your answers to keep them as narrow as possible in answering everything truthfully.

 

In every case, expect the defense attorney to challenge you based on what he or she thinks you do not know, such as the details of your patient's history. The attorney may assume that your opinion on causation is based solely on what your patient told you, and that you do not have all your patient's pre-accident medical history documents, records from other healthcare providers pertaining to this accident, police or incident reports, etc. The attorney will not expect you to have thoroughly researched the other material. This is why it is imperative to include a thorough and accurate section in your narrative called “Past Medical History.” Many of you write, “Non-Contributory.” Everything is contributory according to most defense lawyers. Omit nothing. For example, your chart notes may indicate that your patient reported having no neck pain before being rear-ended by a car going 45 mph. Then the neck symptoms began, ultimately requiring treatment leading to the discovery of a herniated cervical disc.

 

The defense attorney will probably begin by asking you if an accurate and complete medical history is important to your making an accurate diagnosis. (This is vital to evaluating what attorneys call "causation.”) Most doctors will respond affirmatively. The attorney will then ask, if your patient has not given you a complete and accurate medical history, then you may not have the basis for giving an accurate opinion on causation?" Most doctors will again answer in the affirmative.

 

The attorney will then rely on documents of your patient's medical history of which the attorney expects that you were not aware. For example: your patient may have injured or received treatment prior to (perhaps many years before) the accident in question for the same body part that you have been treating. Or they may have been involved in another accident subsequent to the one in question, resulting in similar injuries.

 

Assuming the attorney has this evidence, you will probably be asked about it and whether the patient told you about it at the time of treatment. Assuming you were not aware of it, you will be asked whether this new information changes your opinion. If this additional information does not change your opinion, fine. The attorney will probably not challenge your opinion or "argue the medicine." They will, however, have placed that information into evidence with the hope that the jury will find that your opinion was based on incomplete information. Again, it is critical to have all past medical records regarding your patient’s health. It is also an educational standard when treating patients to take a detailed history including past history and when pertinent acquiring those records from the past.

 

Whether you are testifying for a deposition or at trial, the importance of being prepared cannot be stated in any stronger terms! Being an effective witness, as well as for the sake of your patient, please prepare thoroughly before you testify. This can be as simple as reviewing your treatment records and any other related records the night before your testimony, but I recommend you put in more then a few minutes to review your records and other pertinent data. I have always made it a habit of requesting from the lawyer every document pertaining to the health and injuries of my patient/their client and any police records or witnesses accounts of the accident. I do not want surprises on the witness stand.

 

Quite often, you will be asked to discuss treatment that occurred years ago. No one expects you to recall such distant treatment off the top of your head. You will need to rely on your notes. Having your paperwork organized in such a manner that you can quickly find such information will show the jury you are prepared and will avoid the potential for unnecessary lengthy pauses in your testimony. In the eyes of a jury, there's a world of difference between the doctor who speaks with confident familiarity with his/her patient's case and the doctor who has to fumble through records at trial. Being prepared and knowledgeable at depositions is equally important. Effective deposition testimony may help preclude the need for trial.

 

Objections:

 

The following was taken from an article prepared by Frederick H. Lundblade III and Peter E. Yeager athttp://www.blackchapman.com/html/v21-3.htm that eloquently describes the “objection” as a tool of the lawyers during your testimony to change the intent of your testimony toward their desirous conclusion.

 

When you meet with your patient's attorney, your preparation to testify will probably focus on the substance of your testimony. You may not get into exactly what happens when you give your testimony. This article will explain some evidentiary and strategic purposes for attorney objections. We hope these insights will enhance your experience of testifying.

 

Attorneys often object to evidence offered by the other side. Part of an attorney's job is to minimize, to the extent legally allowed, evidence detrimental to the client's case. Objections are based on the rules of evidence, which limit the evidence a jury is allowed to consider. Objections are designed to keep improper evidence from the jury's consideration and to preserve the record for appeal.

 

Common objections include: 1) hearsay, which is to ensure that witnesses testify only as to their own personal knowledge; 2) irrelevance, which is to limit evidence/testimony to only that which pertains directly to resolving the issues in dispute; and 3) qualifications of the witness to testify in the particular field of expertise they have been called to address. (To avoid this objection, the attorney who called you will "lay a foundation" with questions concerning your education, experience, specialization and other credentials which qualify you to give the testimony sought.)

 

Objections to the Form of the Question: Signals to the Witness

 

Not as commonly understood are objections that go to the form of the question. One purpose of these objections in a pre-trial deposition is to give the objecting attorney the right to ask the judge at trial to exclude the answer to the question, based on the objection made at the deposition.

 

These objections also serve as signals to the witness. Attorneys may not coach their witnesses as they give deposition or trial testimony. These objections serve as an indirect "nudge" alerting the witness to be careful in responding. So, even if the judge does not "sustain" the objection and exclude the answer, the witness has been alerted before answering.

 

Here are some objections, their evidentiary purpose and how they may alert you.

 

  1. “Objection – compound question.” An attorney may only ask one question at a time. The question asked is actually two or more questions. The witness should recognize this and answer accordingly.

 

  1. “Objection – question assumes facts not in evidence.” The attorney presents evidence in the form of responses to questions asked. An attorney may not jump the gun and ask a question phrased, so as to assume facts which have not yet been made part of the evidence, in this way. This question should alert you, as the medical witness that facts inherent in the question have not yet been established or developed. In responding, you should take care not to assume the truth of the underlying factual premise of the question – which may be in dispute, undeveloped or simply not correct. This may be an opportunity for you to answer that the question implies information which, to your knowledge and understanding, is not necessarily the case.

 

  1. “Objection – misstates prior testimony.” This should alert you that the question does not accurately state what you testified earlier. This gives you an opportunity to correct is, as needed. The objecting attorney has detected that the opposing counsel in restating your earlier testimony, has interpreted its meaning in a manner convenient to where he/she wants to go with it. What may seem at first an insignificant variation of your earlier testimony, may actually lead to very significant implication at odds with your earlier answer. This objection should caution you: “Don’t be sidetracked; don’t even begin to go were he/she is trying to lead you.”

 

  1. “Objection – question is based on an incomplete hypothetical.” Attorneys may ask expert witnesses questions based on a hypothetical, typically based on the underlying facts of the case, even though those facts are not yet in evidence. This objection can only serve to alert you if you are personally aware of and can identify facts which do not align with the hypothetical, or who omission significantly affect your response to the hypothetical.

 

  1. “Objection – vague or ambiguous.” Attorneys are required to ask clear and understandable questions. However, since attorneys are often thinking a few questions ahead, their questions sometimes do not make sense. This objection alerts you to be sure you understand the question before attempting to answer it. If no, you may ask the examining attorney to rephrase or repeat the question.

 

  1. “Objection – asked and answered.” Attorneys may not ask the same question multiple times. This alerts you to be sure your answer is the same as or consistent with your answer the last time you answered the question. The attorney’s questions since the last time this question was asked have probably been “setting you up” for a different answer – either one the attorney likes better or one which will leave you open to a charge of inconsistency.

 

  1. “Objection – question calls for speculation.” Witnesses may only testify to matters within their own personal knowledge. They may not be asked to speculate as to what someone else may have been thinking or doing at a certain time. Basically, the question asks you to guess. The objection alerts you not to allow yourself to be tempted to speculate or to guess in this way. Testify only as to your own personal knowledge and professional, medical opinion based on it.

 

When answering questions, you must also be aware of the misleading question. Trial lawyers are very clever in getting the unsuspecting witness to give testimony that is accurate, yet misleading. For instance, if a lawyer asks you if your patient can walk up stairs, the answer is not always simple, because your patient may be able to walk up stairs, but it might cause them a severe amount of pain.

 

It is allowable to ask the lawyer to repeat the question. This will give you a moment to gather your thoughts, or have the lawyer ask you the question differently. As a witness you are not allowed to ask a question to the lawyer, only answer the question. However in this instance I would answer the question by saying “Are you asking me can my patient walk up stairs with or without pain?” This is not asking a question, but asking to qualify the lawyer’s question. Sometimes the judge will allow you the latitude to do this and other times not. It is in these instances that the plaintiff’s lawyer should object to the question as misleading or another legal mechanism to prevent the right answer giving the wrong impression. It is not your job. However, as an expert witness, I always work very hard to convey the true nature of my patient’s condition.

 

 

 

What to Prepare for Trial/Deposition

 

 

1

Narrative

2

Patient confidential questionnaire

3

Initial examination

4

All re-evaluations in chronological order

5

SOAP Notes in chronological order

6

Any films that you have interpreted, preferably digitized for a projector

7

Any reports you have created (i.e. EMG/NCV reports

8

Any document the patient created for you regarding their condition…

9

Police report if it part of your records

 

Note: When referring to film, either x-ray or MRI, they should be digitized and projected on a screen in the courtroom. No one other then you in the room has seen MRI’s more then a few times and no one understands them. Therefore, if you project it onto a screen that is 10’ wide and 6 ‘ tall. You can use a laser pointer highlighting the salient points to make it understandable to a jury and judge. I have used this technique numerous times and this method of testifying is at both the discretion and expense of the plaintiff’s lawyer. However, if they are smart, they will employ this method.