Show- Don't Tell - 3 Steps to Take Before Your Next Doctor's Deposition

Judge’s Gavel and doctors stethoscopeHave you ever looked on YouTube for a “Shoulder Arthoscopy” video?  For some terrible reason, I had many personal injury clients that had shoulder surgery and only wound up having 2 or 3 little scars and I never really understood what they went through.  So, like the insurance defense lawyers suggested, I too did not think this surgery was particularly invasive. 

I’ll never forget the first arthroscopy video I watched. I gasped out loud.  The doctor made an incision with a scalpel and blood trickled down the shoulder.  He then plunged what looked like to be a steel stake deep into the bowels of the shoulder with such force it shook the patient’s whole body.    

If you are not putting your client’s similar surgery in your discovery, you are missing out on revealing the entire field of damages your client is going through.  And beware of WHEN you need to do this.  Some judges may exclude your videos if they are first presented during the doctor’s deposition.   You need to be thinking about your client’s harms and how you are going to present them during the initial discovery phase.  I simply provide a link in my written discovery to a similar anatomically correct surgery.  To be extra safe, I provide a thumbdrive with the video(s) downloaded.    The defense will fall all over themselves in order to get the video’s excluded.   Most judges have not found the videos to be overly graphic, any more so than the defense showing pictures of minimal property damage having the opposite effect.  What’s good for the goose is good for the gander.

If you are not meeting with your doctor weeks in advance of the scheduled depo, you are going to walk into that deposition blind not knowing what to expect.  The cost and effort to prepare is minimal and may give you great piece of mind before you walk into the depo the day of.  You can also go over terms the doctor needs to know, such as to within a reasonable degree of medical certainty.    

So, in summary, you should strongly consider these steps before your next doctor’s depo involving your client who underwent, or needs to undergo, surgery:

  1. Find an anatomically correct surgery on youtube (better yet, get your own client’s surgery videotaped, or at least get photos taken during surgery if the provider will allow);
  2. Provide the written video link to defense counsel in your original interrogatory and Production responses;
  3. Meet with your doctor well in advance of the depo and show her/him the video and make sure they can answer the following question for entry as an exhibit during the deposition:
    1. Doctor, have you reviewed a video prior to the deposition today, and is that video reasonably anatomically correct in showing the same type of surgery the plaintiff had in this case?
    2. Do you believe that this video will substantially assist a jury or anyone watching the video to understand what the plaintiff had to undergo in her specific case?
    3. And is this surgery the same or similar to the surgery you performed on the plaintiff?

If you do this, you will find the deposition much more exciting, for you and most importantly, your jury. But be ready, the insurance defense lawyer will fight admissibility with a passion in their efforts to twist causation and hide truth from the jury.

Try your cases!  “You will never settle your client’s case for as much as a jury may give your client at trial.  Never!”  

John Griffith

John Griffith
Nashville Personal Injury Trial Attorney
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