Every week I get to come see guys like you. I come to your office, along with a court reporter and sometimes a videographer to take your deposition. For many of you, it is your very first time to give a deposition like this. You make it seem like another day at the office, but secretly you are concerned about what might happen. You are not even sure what it is you should be worried about. You have talked with your colleagues about your immediate concerns and to seem like you already know what you need to know, but you don’t know for sure, and honestly, it scares you.
As a former insurance adjuster, turned trial lawyer who takes depositions for a living on a very regular basis, let me put your mind at ease. I am getting ready to share with you the top questions that all of you are asking. I have interviewed over 20 doctors for this article, and guess what? You all are concerned about the same things… so here goes.
What is the Real Reason This Deposition is Necessary?
This is a great question. Why are you wanting to do this in the first place? In plaintiff personal injury (PI) cases, the burden of proof in a legal case is upon the plaintiff (i.e. your patient). The plaintiff must prove their case. What does this mean? An injured person cannot get on the stand and competently testify about what was the “cause” of their injuries for which they have been treating with you. They cannot get up on the stand in court and say, “As a result of my injuries in the car wreck of August 18, 2016, I had to undergo a cervical fusion at C5-6 and have a plate installed in my neck, and it cost $52,000 as a direct result.” This is called causation testimony and this type of testimony is only allowed by experts. The layperson does not have the requisite training and experience to make the causal link between the wreck and any certain form of medical treatment. By virtual of your medical certificate, you are allowed (generally) to give statements of causation.
Certainly, a patient can talk about what hurts her, and how those symptoms began immediately following the car wreck. But to go one step further and to state that they needed traction or trigger point injections directly caused by the injuries in a car wreck will not be allowed by the patient.
As a treating doctor, you are in the best person to give a statement as to the cause of the patient’s condition, and the medical necessity of treatment. If we go to court without your testimony, or an expert who has at least reviewed the medical records, we cannot prove our harms and losses in a personal injury case. We will lose. So here is the real reason why we need your deposition…. IF WE DON’T GET IT, WE WILL LOSE THE CASE. And guess what? We are very willing to pay you handsomely for your time, within reasonable bounds, of course. (more on what to charge later…)
How Do I Protect My Patient and My Medical Reputation?
This was one of the MOST Frequently Asked Questions that your brethren gave me when I interviewed you. What happens if you say something that hurts your patient inadvertently? Or what if I don’t have the whole story of my patient’s condition? Good question. You are always given an “out”. That is, you can realistically only testify to the subjective and objective findings you have on a patient. Let’s start with the subjective. If a patient tells you something and it later turns out to be false, or was intentionally incomplete, then that is NOT your fault. I always ask questions that give you the cushion of what the patient relayed to you. (I.e. “Doctor, based upon the history Mrs. Gentry told you, and assuming that history to be accurate, do you have an opinion as to the cause of her C5-6 herniated disc?) You have been around the barn for a while. Your gut tells you which patients are exaggerating and which ones are not. If you happen to get fooled, then it is on the patient. It is not your fault. However, it is important if you believe that your patient is being honest and trustworthy, that you give her the benefit of the doubt, and fight for her until proven otherwise. If something comes up otherwise, it does not discredit YOU. You can only go on what you have been provided by the patient.
However, sometimes things come up through trickery or negative inference from what the defense attorney wishes to show. A very common practice example is this: Your client comes to you with a neck injury. She was involved in a car wreck over the past week and went to the ER with neck pain, and now is referred to you. You ask her where she hurts and how long she has been hurting. However, YOU fail to ask her if she has EVER had this pain, or similar pain before, ever. She only volunteers that she did not have THIS type of pain before the wreck.
During the deposition, the defense lawyer asks you the following questions:
Q: Doctor, when you just gave your opinion regarding causation of the plaintiff’s injuries and this wreck, did you base your opinion upon the history provided to you by Ms. Gentry?
A: I did, as well as some of the objective findings.
Q: And it was your understanding that she was having no neck pain before this wreck, true?
A: That was my understanding.
Q: And if the information that you were provided was faulty or untrue, that may change your opinions in this case, true?
A: Yes, possibly. (you think you are about to get the rug pulled out from under you, and you get a bit more nervous)
Q: Did Ms. Gentry tell you that she had previously treated with a doctor for neck pain?
A: No, she did not tell me that.
Q: Did she tell you that she had received chiropractic care for 6 months following an car crash in 2010?
A: No, she did not share that with me.
(Look at what has happened here. IF YOU DO NOT GET A COMPLETE AND FULL HEALTH INJURY HISTORY from your patient, you will unintentionally make her look like a liar, and totally discredit her, as well as your own opinion. )
Q: Doctor, you are not sure if this wreck caused her pain, or if it was already pre-existing can you?
A: uhhh…. I’m not sure.
It is for this reason, I make sure to tell my clients to inform their doctor of ALL pre-existing medical history, EVEN IF YOU DO NOT ASK THEM THE RIGHT QUESTIONS. If you do personal injury cases as any type of significant part of your practice, you need to get used to asking them direct questions about every claim they have post wreck and see if they have EVER treated for it before. Also, if a patient as a neck injury, for example, and they had a prior injury 2 -3 years ago, see how long they were asymptomatic before the wreck at issue. Ask them to bring you prior records. A good attorney will get those for your review way before any deposition is set to occur so you can review them. If they have a prior neck injury, is the new injury different? Was the prior injury more in the C3-4 area on the right side and now it is in the C6-7 area on the left and into the scapula? Does the injury have radiculopathy now but did not have any before? The “neck” is not one body part, but many. Look for the specifics and how you can differentiate it from their prior injury.
What if I Am Not “certain” That the Medical Condition Was Caused by the Wreck?
This is a softball for you. In the civil trial world, your opinion only has a threshold requirement of “more likely than not”. Think about that for just an important couple of seconds. More likely than not likely. Probably true. To get very specific, is it 50.001% more likely to be true than not true. That is it. So there is no need for you to worry that you are not “certain” about something, or that you “cannot say for sure.” The law totally relieves you of that burden. The formal name for it under the law is the scary-sounding term “Preponderance of the Evidence.” But in practical application, that term is defined as more probably true than not.
Here is where I do not want you to get confused, so I am going to make it as simple as I can. The term “within a reasonable degree of medical certainty” means the same thing as “more likely true than not true.” For those of you who do not believe me when I write this, please allow me a few lines to digress into the legal world for your verification.
It is noted in some cases… the term ‘reasonable degree of medical certainty’ has been held to mean ‘more likely than not.’ One is compelled to ask under such circumstances why ‘reasonable medical certainty’ continues to exist. It suffices to say in the case at bar that nowhere is anyone informed that the two terms are synonymous.
Tennessee law has recognized and commented upon how confusing the term of art that older case law required doctors to testify “to within a reasonable degree of medical certainty.” That word “certainty” certainly seems juxtaposed to the words “more likely true than not true” doesn’t it? It is NOT.
The only justifiable function that "reasonable degree of medical certainty" ever had is to act as a gatekeeping question of law under which the trial court decides whether or not a doctor’s opinion is admissible in evidence.
Proof of causation equating to a ‘possibility’, a ‘might have,’ a ‘could have’ is not sufficient as a matter of law to establish the required nexus between the plaintiff’s injury and the defendant’s tortuous conduct by a preponderance of the evidence. Kilpatrick v. Bryant, 868 SW2d, 602
Expert testimony is unique because experts are allowed to give an opinion in a particular situation whereas other witnesses are prohibited from giving opinion testimony in areas where expertise is not required.
A doctor's testimony that a certain thing is possible is no evidence at all. His opinion as to what is possible is no more valid than the jury’s own speculation as to what is or is not possible. Primm v. Wickes Lumber Co. 841 SW 2d 768, 770-71(Tn.Ct.App.1992)(
If a doctor cannot testify as to cause in fact to a reasonable degree of medical certainty, his testimony is not admissible before the jury. Barn v. Clarksville Memorial Health Systems, Inc. 104 SW3d 1 (Tn.Ct.App. 2003)
What Do I Wear to the Deposition?
Simple question but I do get asked this quite a bit. Is it necessary to wear a white robe? No. Everybody dresses down and doctors are no different. It doesn’t bother me that an orthopedic doctor is wearing scrubs after he just finished surgery. Business casual is certainly fine.
Why Are You Videotaping My Deposition?
If your client’s case goes to trial and your deposition is visually recorded, then there will only be a written, stenographic recording. Can you imagine going to a movie and only having letters written on the screen with no images? A video deposition generally catches the attention of jurors better than simply standing up at the podium and reading a deposition for an hour or so to a jury. Also, a video serves to capture images better for exhibits that things the doctor can point and refer to. I can also show video within a video which may allow a doctor to explain more vividly how he performed a surgery, for example. The possibilities are endless with video.
Where Does the Deposition Occur?
Generally, it occurs at your office. We are willing to come to you to make it as least intrusive upon you as possible. It can occur at the lawyer's office if you wish it to.