Discovery with med-legal experts can dictate the direction of a case, which makes understanding doctor deposition strategy an essential tool for attorneys and practitioners to have.

Donald R. Barthel

A doctor’s deposition is often a pivotal discovery tool that can make or break a case.

Inasmuch as a request to present a physician’s live testimony before a workers’ compensation judge is rarely granted, there will likely be no second bite at the apple if the doctor’s deposition goes poorly. (Please note that CCR §10682(a) says “Direct examination of a medical witness will not be received at a trial except upon a showing of good cause.”)

Given this, it is essential that the defense attorney be thoroughly prepared when exercising the right to depose the physician.

Doctor depo or supplemental report?

A doctor deposition in workers’ compensation is sometimes used to “correct” the physician’s report or reports. This is often a poor use of resources. Many of the report requirements, particularly those mandated by Reg. 10682 (including but limited to date of injury, patient’s complaints, list of all information received in preparation of the report), can be clarified sufficiently via a simple letter requesting a supplemental report addressing the issue or issues that have the parties stymied. Given the time and expense of a deposition (applicant attorney fees, physician fees, court reporter costs, allowances for defense attorney preparation and appearance, etc.), this should rarely be the exclusive purpose of a deposition. For example, if the doctor appears to have made a simple mathematical error, clarification and/or correction via a letter should be considered strongly.

The foregoing notwithstanding, there are reports that the defense finds so unacceptable — such as greatly overstating the whole-person impairment or failing to provide what appears to be appropriate apportionment — that a letter just won’t do the trick.

When dealing with a report full of “mistakes” or misapplications of the AMA Guides (fifth edition) or the applicable codes/regulations, a deposition should be considered. Once the value of what would be a correct report is calculated, it can be compared to the physician’s numbers. A significant differential will oftentimes make clear that the doctor’s deposition is justified and even necessitated.

Preparing for deposition

If a deposition is taken, it should begin with “softball” questions aimed at simply clarifying facts and figures that the doctor will likely agree must be changed. If the doctor refuses to correct the mistakes or provides additional errors in response to questioning, this will lead to the second part of the deposition. Similarly, if the report includes problematic shortcomings that require significant inquiry, a second part will be needed.

What does this second part of a deposition entail? It does not mean a second deposition. It simply means additional, tougher, more technical — and, often, more aggressive — questions. This typically represents an attempt to demonstrate that the doctor’s reporting and deposition cannot be relied on by the WCJ because they do not qualify as “substantial medical evidence” stated to a “reasonable medical probability.”

In order to convince the WJC on this score, the defense must punch holes in the doctor’s reporting, demonstrating, for example, that he/she relied on faulty legal theories, has an erroneous medical history and/or was unable to sufficiently explain the how and why of determinations found in the report/testimony.

There are some obvious considerations when preparing for a deposition, and others that are not immediately apparent.

• File preparation: The handling attorney must know the file inside and out. Much time will likely be necessary. Although he/she will undoubtedly have outlined questions and marked exhibits believed to be important, it is impossible to know exactly what opposing counsel will ask and offer into evidence. Thus, strategizing and determining the likely approaches the applicant’s attorney will take is nearly as important as developing the defense approach. This will also help prepare for likely formal objections outlined by the Code of Civil Procedure. “Hearsay,” anyone?
• Know the AMA Guides: California workers’ compensation has used the guides since 2005. In that time, one might believe AMEs, QMEs and PTPs would have gotten better at applying the guides correctly. That simply is not the case. After analyzing more than 30,000 reports, Bradford & Barthel’s AMA Guides Analysis & Ratings Department has determined that more than three-quarters of reports submitted overstate the whole-person impairment and thus the permanent disability, sometimes substantially. We often see life pension cases that would not otherwise reach that expensive level if the guides were properly applied.

Given the foregoing, the lead defense attorney should be well-acquainted with the guides and be prepared to demonstrate through the doctor’s testimony that this treatise has been incorrectly applied by the physician. The ability to spar on this issue with the doctor — and, likely, applicant’s attorney — is essential.

If the handling attorney is not adequately versed in this 600-plus-page book, it is essential that an analysis be obtained that will assist in preparing deposition questions. A vendor that has successfully performed thousands of such reports saved clients millions of dollars over the years and has been invited to provide expert testimony is recommended.

Subpoena the doctor’s file

Having more than 30 years of experience in this industry, I have performed innumerable doctor depositions. Indeed, it is the aspect of workers’ compensation I most enjoy.

Although every case is different, I have one tool that I always use: subpoenaing the doctor’s file prior to the deposition. Why? I can answer that in one sentence: You don’t know what’s in there.

Huh? The subpoena is a relatively inexpensive exercise, particularly when compared to the damage that can be done by not being fully prepared for the deposition. I can honestly say that I find valuable material in the subpoenaed records well more than half the time.

Here are examples of some of the fun fruits born by subpoenas to doctors’ offices:

• Evidence that the physician was engaged in fraud by billing the employer and the federal government for the same services. (When told that these records were found in his subpoenaed file, the doctor foolishly admitted on the record, “Those weren’t supposed to be there.” I believe you, doctor!)
• Evidence that the doctor had engaged in ex-parte contact with applicant’s attorney about “how he (the doctor) should apply Kite.”
• Evidence that the doctor, after determining that the applicant’s paper-and-pencil results in an Epworth test didn’t provide enough impairment for his liking, changed the answers and score. Moreover, the doctor “explained” what each question “meant” to the applicant. This is expressly prohibited by the creators of the Epworth, thereby invalidating it. (Interestingly, removing the WPI based on the Epworth reduced the overall report to under a life pension. Coincidence?)

Summary

Depositions can be valuable, but expensive, discovery tools. They should be used only when justified by a cost-benefit analysis and when it is determined that the needed information can’t be obtained by way of a less expensive manner, such as supplemental reports. Once it is determined that a deposition is justified, it is time to bring out the big guns:

• Garner a thorough knowledge of the file.
• Prepare defense depo questions and exhibits.
• Strategize and prepare for approaches you expect opposing counsel will likely take.
• Review the doctor’s AMA Guides analysis and determine its weaknesses. Prepare to attack the doctor’s shortcomings on that score or utilize a respected vendor to assist.
• Subpoena the doctor’s file.

Although there are many other issues that may require your consideration, such as apportionment, Kite and Guzman, these have been addressed by other B&B Blog articles and videos that you can locate at www.bradfordbarthel.com.

Good luck!

Don R. Barthel is a founding partner of the Law Offices of Bradford & Barthel LLP. This entry from Bradford & Barthel's blog appears with permission.