As I read doctor depositions in prep for trial, I always see the following exchange by the insurance company lawyers to the plaintiff’s treating doctor:
Q: Doctor, you relied upon the history of the patient when you made your diagnosis, true?
A: In part, yes, as well as my objective findings.
Q: And if the history was different than what you were provided, that could change your opinions as to the cause of the injuries, correct?
A: Well, it could.
Then the defense attorney will usually move on, with no additional fact, or… they will inject some prior car wreck 10 years ago and ask if the patient told you about that. This is what I refer to as the “Hinting Defense.” There is no concrete allegation of prior injury necessarily, or no older permanent injury. It is simply an inference that may or may not be true. From your perspective, you may be thinking… “Oh my, what did the patient leave out? Now I am going to look stupid in the face of a new fact I should have been told about.” We all worry about self-preservation. It is a big deal to any professional. You will let a patient die on the sword before you allow that to happen to your reputation. It is natural. Before you automatically jump ship, be prepared for this line of questioning, expect it, and know how to deal with it.
All of us have prior issues in our lives that could affect our current health. We also all have a lot of prior acute occurrences that are solo events and we recover 100% from them. I have been in the patient’s shoes, filling out questionnaires and had to really concentrate in order to remember all of my history. And I know the importance of it. Most plaintiffs do not think that hard about it. So when the insurance lawyer digs up some remote episodic ER visit from 13 ½ years ago that the patient forgot about, you are being led to believe this may somehow be relevant to the issues at hand in the current wreck you are treating the patient for.
So, the best answer for you to consider in the face of the questions of hinting by the insurance lawyer is, as follows:
Q: And if the history was different than what you were provided, that could change your opinions as to the cause of the injuries, correct?
A: Well, it depends upon how relevant it is.
Then you assess its importance if you are presented with the alleged fact. Was the prior injury to the same body part? How long ago was it? Was it deemed permanent? Was it just a noted corollary fact that some degenerative arthritis was present, but was not causing any pain?
Sometimes the hinting defense thrown at you has nothing to do with any injury at all. For example, “Doctor, did you know the plaintiff had filed a lawsuit and sued my clients during the time he was treating with you?” What in the world does that have to do with your client’s injuries? Maybe the claims adjuster told your patient that they were not going to be paying for any chiropractor bills from some point forward. Maybe the patient is still hurting after one year and the statute of limitations was about to expire and they had to file a lawsuit or forever lose the right to collect on their bills. Do you see all the hinting that is going on? Be prepared for it.
Keep this in your deposition file and quickly review it before your next deposition. Be ready for the hinting defenses before they are thrown at you. If you have any questions about an upcoming deposition, call me and let me get you ready for the insurance lawyer’s questions (even if it is not one of my cases). I want to help lift all boats in whatever way that I can.
John Griffith
