Lawyers PI Program
From the Desk of:
Mark Studin DC, FASBE (C), DAAPM, DAAMLP
“Testifying Part 2: Preparing for Deposition or Trial”
As you get busier with personal injury, it is only a matter of time before you will be requested to testify in a deposition or trial and you will need to be prepared.
Ordinarily, the selection of the plaintiff's expert is made well in advance of trial and is usually the treating doctor, if that doctor has the credentials and the confidence of the attorney. Remember, in our own bubble, we consider ourselves the treating doctor only if we render an adjustment. We think that if we didn’t adjust the patient, we didn’t treat the patient. The law, however, identifies a treating doctor as a doctor who even has a simple encounter with a patient.
Think of the primary care doctor who simply sits and listens to a patient, formulates an opinion and says to the patient, “Go home and stay off your feet for a week.” That doctor is a treating doctor because he had a patient encounter and rendered a professional opinion. Should your credentials not be what the lawyer expects or needs, they will send your patient to another doctor for an encounter so that doctor can be the treating doctor.
That is the foundation for the P-IME’s; you can be the treating doctor for other doctors' patients because your credentials trump theirs. It is a very sophisticated card game where you have the advantage because you know the rules and very few others do.
Here is what the legal experts say: “Ideally, the expert has had an opportunity to review all pertinent medical facts, and has been able to discuss them at length with counsel.”
Here is what I say: Be prepared like no other expert. It goes back to the 6 P’s.
I am testifying in 2 days. Let me take you through my preparation process. Understand I am testifying as a P-IME because the multitude of treating doctors are clueless and the lawyer has no confidence in those doctors, chiropractors and medical doctors alike. Did the lawyer inform the other doctors that I was going to be the treating doctor and testify? No! The lawyer simply informed his client that he needed to see me for a second opinion and I would be testifying to the injuries, as I am the expert in his type of condition. The other treating doctors have no clue that I am seeing their patient and probably never will, as you won’t for your patients. That is the usual and customary process, so don’t think for a moment that you have any control over where your patient ends up. It is between the lawyer and HIS/HER client, not the doctor and the patient.
I evaluated the patient 6 months ago and wrote a report. In most states, the lawyer has to submit the treating doctor’s reports to opposing counsel at least 30 days in advance, so leave plenty of time. During that encounter, I had the lawyer sit in on the examination (mandatory) so he could witness the process and fully understand what was going on with his client. Understand that the lawyers know the law, not the health issues, as they have no formal training, no matter how experienced they are.
In general, during the visit, I have the lawyer bring all of the patient’s medical records. By this time, the lawyer has gathered all of the previous reports from every provider, including hospital records. If I am the adjusting doctor, I already have them and will have every copy in front of me at the time of the examination. I also insist that the lawyer brings every film taken, including MRI’s, x-rays and CAT scans for me to personally review. He/She should also have the radiologist’s reports with him/her. I will not testify off of other doctors' interpretations of films; I will only write a report and testify off of the films, as I am the expert. In many states, this is also an admissibility issue.
I will perform my examination and take a thorough history of the patient. Should there be any persistent diagnostic dilemmas that require additional testing, I will order it. If additional tests are required, I will have the patient and lawyer back for a final evaluation with all of the test results in front of me.
Once I have all of the information in front of me and the examination is complete, I will release the patient and have the lawyer stay. Together, we will review every report of every doctor the patient has seen. By the end of the process, both the lawyer and I will understand every nuance of the patient’s bodily injuries and I will now be ready to create my narrative. Should I not fully understand any part of the patient's chart, MRI’s, EMG reports, etc., I now have enough time to contact and/or visit specialists and learn about what I will be cross- examined on. I need to be the expert on every issue by the time the trial or deposition occurs and I am committed to being prepared.
I have taken this step 100’s of times. It’s how I get better at what I do and is the reason I have created “MY” team of specialists. I then get the lawyer the narrative within 2 weeks, rendering him/her enough time to submit it to the courts and the opposition. This is understanding admissibility. That is why I am the best at what I do and the lawyers all know it, which is why they keep using me. You need to be as confident as I am and that only comes from being well-prepared.