This will be the first in a series of thoughts about the role that doctors play in injury cases.
Doctors can be treating doctors, or expert witnesses, or either but not both, or both. This is a subject of some complexity that I will delve into more in the future; for now, though, let’s talk about treating doctors.
I was recently in a deposition in a case in which my partially disabled client was on a motorized scooter when she was hit in a crosswalk by a young man driving a truck. She required extensive medical treatment, saw numerous orthopedic doctors and surgeons, and had to undergo knee replacement.
One of those surgeons, a joint replacement specialist, was the subject of the deposition. Under questioning by the
defense, he stated that he could not, to a reasonable degree of medical certainty (the phrase that many lawyers
use to describe the standard for burden of proof) relate my client’s need for knee replacement surgery to the fact that she had been hit by a truck in a crosswalk, had been thrown a substantial distance, and had extensive pain complaints relating to her knee after the accident. In fact, and worse, he testified, to a reasonable degree of medical certainty, that her knee replacement was not due to the accident.
My client’s medical chart reflected some prior knee complaints, but not nearly the same type and number of complaints as she had after the accident. After the defense was finished, I asked the doctor whether subjective complaints of pain were a potential factor in determining whether knee replacement was necessary. He stated that this was a major factor in this type of determination. I then asked him to tell me the frequency and character of my client’s knee complaints prior to the accident as opposed to the frequency and character of my client’s knee complaints after the accident. He then stated that he had not had time to review the entire chart, despite the fact that I had offered to pay him to do so.
At the end of the deposition we were left with a witness who had “neutralized” the value of his testimony for either side by virtue of his lack of preparation. My client, who truly had many more serious pain complaints after the accident than she had before it, lost a potentially valuable witness.
The moral of this story, to the extent that there is one, is that treating doctors are often dangerous witnesses for their patients. I tell my clients that treating doctors may “trump” hired experts at trial since juries tend to believe a doctor who examined and cared for a patient as opposed to a doctor who is paid for the sole purpose of testimony.
Many treating doctors, however, are alarmingly unaware of their own patient’s medical history and find deposition testimony tiresome and annoying, even though they are invariably paid $500.00 to $1000.00 an hour by one attorney or another.
The role of treating doctors in the outcome of injury cases cannot be overstressed, and I will discuss other aspects of this important subject in the future.
Steve is the Managing Shareholder of Steven J. Klearman & Associates, a civil litigation law firm located in Reno, Nevada. He practices primarily in the areas of civil litigation and injury law, and has authored one of the definitive guides to Nevada civil law that is widely used by Nevada judges and attorneys, his book entitled Elements of Nevada Legal Theories.