Five Tips For the Deposition of Your Client's Doctor in an Injury Case

For personal injury attorneys, one of the most important steps in developing a strong case for trial is deposing your client's treating physician. If the testimony of your client's doctor is lackluster, you will not be happy with the outcome at trial (been there, done that.) Knowing these tips will ensure powerful medical testimony that will improve your odds of getting that big verdict at trial.

Make It Easy for a Jury to Understand

Most jurors won't understand medical jargon. It's doubtful that any of your jurors will understand the phrase "comminuted tibial plateau fracture." But they will understand "shattered upper shin bone." Most won't comprehend the phrase "Stage 4 decubitus ulcer with osteomyelitis." But they will understand "festering wound with infection down to the bone." Not only are the latter phrases comprehensible to jurors, they are also much more powerful.

I tell the doctor at the beginning of the deposition that I may ask him to rephrase certain terms into regular, everyday words. If the doctor throws out too much medical terminology, I ask for clarification with layman words. A jury will appreciate it. More importantly, the jury will fully understand the nature and severity of your client's injuries. If they can understand the injury, they are more likely to bring back a good verdict.

Do Your Homework on the Doctor

If you haven't deposed the doctor before, ask colleagues about their past experiences. Some doctors are more hostile to personal injury attorneys and their clients, while some are fierce advocates for their patients. For example, there is one orthopedic surgeon in my town who will NEVER opine that a herniated disc is due to a car wreck. The first time I deposed this doctor, I got blindsided.

I had a 36 year-old client who was the beacon of health until he was in a high-impact car wreck. This doctor performed a cervical fusion on him a few months after the wreck and I was sure (too sure) that he would relate the C5-6 disc herniation to the wreck. I was wrong. And it hurt my case. While I did get the doctor to loosely relate the surgery to the wreck as an "aggravation of pre-existing condition," the blunders I made in the deposition looked bad when played for the jury. The verdict was only $10k more than what the carrier offered (which was disappointing, it was a bad offer.)

If I had known the doctor wasn't going to directly relate the disc herniation to the wreck, I could have used a better line of questioning to steer the flow of testimony. The outcome at trial probably would have been better if I had contacted another attorney to ask about this doctor's tendencies at deposition.

Act Like a Defense Lawyer When Reviewing Your Client's Medical Records

Prior to the deposition, you will obviously review the records. But you need to know more than what they say. You must put on your defense lawyer cap. Find any inconsistencies in your client's histories. Find inconsistencies in pain ratings. Review your client's medical records from prior to the incident. Look for anything that can damage your client's credibility or that could adversely impact causation testimony. There is always at least one damaging nugget. You must assume the defense lawyer has found the nugget too. You need to address it before the defense lawyer does.

In the direct, ask questions to mitigate the damaging information. For example, I had a client who gave a pain rating of 2 to the physical therapist on the same day he gave a pain rating of 7 to his doctor. I addressed this on the front end by asking "Have you ever had patients who have more pain in the hours after doing a physical therapy session?" Of course, the answer was yes. I took away the defense lawyer's ability to diminish my client's credibility. Speaking of client credibility...

Use the Doctor to Bolster Your Client's Credibility

If a jury doesn't believe your client, the verdict will reflect their skepticism. So come up with a list of questions to ask your client's doctor that will help a jury believe your client. Before doing this, make sure the medical records don't reflect any secondary gain or patient credibility issues. See my video for questions you can ask a doctor to bolster your client's credibility:

Unless the records reference secondary gain or patient credibility issues, the doctor will say "I don't recall the patient making anything up." Then you follow up and ask "but you have had patients who do make things up..." at which point the doctor will say something like "Oh, God, absolutely!" You have now made clear to the jury that your client isn't one of those people.

Get Visual

You are presenting an injury case to a group of strangers who aren't thrilled to be spending their week at the courthouse. Therefore, the testimony about the injuries has to be interesting. Unless you are planning on having the doctor come to trial (which may be very expensive and will frustrate the doctor), video the deposition to play at trial. This is critical. Juries fall asleep when you read deposition testimony.

Just as importantly, use visual aids in the video deposition. Take an anatomical model and have the doctor use it to explain the nature of the injury. Take the x-rays if there is a fracture. If your client has a severe injury, pay a company to create a medical-legal illustration. Lay the appropriate foundation for the anatomical model/illustration and have the doctor explain the injury to the jury. We are visual creatures. Don't miss this opportunity to show the jury exactly how bad your client was hurt.

I hope this helps you!

For feedback or questions, please leave a comment or reach me by email at bart.siniard@law-injury.com