workers' compensation and medical expert...

71
Workers' Compensation and Medical Expert Depositions Effective Techniques for Questioning Experts and Raising Strategic Objections Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. TUESDAY, FEBRUARY 5, 2013 Presenting a live 90-minute webinar with interactive Q&A John M. Langevin, Partner, Floyd Skeren & Kelly, Riverside, Calif. Bernadette M. O'Brien, Managing Attorney of Employment Law Department, Floyd Skeren & Kelly, Calabasas, Calif. Thomas O. Sippel, Partner, Leitner Williams Dooley & Napolitan, Roswell, Ga. Dona L. Skeren, Assistant Managing Attorney, Floyd Skeren & Kelly, Calabasas, Calif.

Upload: lehanh

Post on 28-Jul-2018

219 views

Category:

Documents


0 download

TRANSCRIPT

Workers' Compensation and

Medical Expert Depositions Effective Techniques for Questioning Experts and Raising Strategic Objections

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific

The audio portion of the conference may be accessed via the telephone or by using your computer's

speakers. Please refer to the instructions emailed to registrants for additional information. If you

have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.

TUESDAY, FEBRUARY 5, 2013

Presenting a live 90-minute webinar with interactive Q&A

John M. Langevin, Partner, Floyd Skeren & Kelly, Riverside, Calif.

Bernadette M. O'Brien, Managing Attorney of Employment Law Department, Floyd Skeren & Kelly, Calabasas, Calif.

Thomas O. Sippel, Partner, Leitner Williams Dooley & Napolitan, Roswell, Ga.

Dona L. Skeren, Assistant Managing Attorney, Floyd Skeren & Kelly, Calabasas, Calif.

Sound Quality

If you are listening via your computer speakers, please note that the quality of

your sound will vary depending on the speed and quality of your internet

connection.

If the sound quality is not satisfactory and you are listening via your computer

speakers, you may listen via the phone: dial 1-866-258-2056 and enter your PIN

when prompted. Otherwise, please send us a chat or e-mail

[email protected] immediately so we can address the problem.

If you dialed in and have any difficulties during the call, press *0 for assistance.

Viewing Quality

To maximize your screen, press the F11 key on your keyboard. To exit full screen,

press the F11 key again.

For CLE purposes, please let us know how many people are listening at your

location by completing each of the following steps:

• In the chat box, type (1) your company name and (2) the number of

attendees at your location

• Click the SEND button beside the box

FOR LIVE EVENT ONLY

If you have not printed the conference materials for this program, please

complete the following steps:

• Click on the + sign next to “Conference Materials” in the middle of the left-

hand column on your screen.

• Click on the tab labeled “Handouts” that appears, and there you will see a

PDF of the slides for today's program.

• Double click on the PDF and a separate page will open.

• Print the slides by clicking on the printer icon.

WORKERS’ COMPENSATION:

DEPOSITION OF A MEDICAL EXPERT

PRESENTED BY: John M. Langevin, Bernadette O’Brien and

Dona Lee Skeren

DETERMINING WHETHER TO DEPOSE A MEDICAL EXPERT

USING A RISK/BENEFIT ANALYSIS

7

CONSIDER

Whether it is in your client’s best interest to depose a medical expert, using a risk/benefit analysis.

8

CONSIDER OBJECTIVE OF THE DEPOSITION

o Change an opinion as to status or level of disability;

o Modify treatment recommendations;

o Challenge causation opinion;

o Challenge recommendation for

additional evaluations.

9

CONSIDER RISKS OF THE DEPOSITION

o Increase or reduction in disability level;

o Additional treatment recommendations;

o Change in opinion as to nature and extent of injury;

o Solidify an already adverse opinion.

10

EXAMPLE

o Applicant has preexisting degenerative disc disease and surgery to the cervical spine. There is no objective evidence or any treatment records of any preexisting pathology from an orthopedic standpoint to any other body part. However, the physician finds 10% apportionment to nonindustrial factors for the neck, back and shoulders without any detailed explanation.

o Objective of defense is to increase apportionment to the

cervical spine up to 50%. If successful, the cost savings to defendant would be approximately $4000.

o The physician did not comment on a disputed period of

temporary disability equal to approximately $9000.

11

CONSIDER COST

Cost of deposing the physician includes, expert witness fees of $750. Court reporter costs of about $500. Defense legal fees would be about $1000 to $1500 depending on travel time. Total costs of deposition is $2250 to $2750. If successful, net gain in increasing apportionment to 50% is $1250 to $1750.

12

CONSIDER LIKELIHOOD OF SUCCESS

oThe physician is well known not to alter his opinion in the absence of new information.

oChances of getting an increase of apportionment to 50% is not high.

13

POSSIBLE OUTCOME

o No change of opinion in apportionment and an affirmative statement that the applicant was temporarily totally disabled during the disputed period.

o The end result could be an altered opinion that costs an additional $9000 in disability in addition to the associated costs of the deposition.

14

CONCLUSION

Defer deposing the physician and use the lack of an opinion regarding the disputed temporary disability status in negotiation at time of settlement.

15

EXAMPLE

o Applicant has failed back surgery and is on narcotic medications. Prior opinions by the physician state that he is restricted to sedentary work. Applicant then undergoes another surgery and returns for a reevaluation.

o Report issues that essentially has the same objective and subjective findings. However, the physician now finds that the applicant is 100% permanently disabled.

o Objective of defense is to restore prior opinion of sedentary work restriction. This represents a cost savings to defendant of approximately $400,000 over the life time of the applicant.

16

CONSIDER COST

Costs of deposing the physician is about the same, except for travel. Total costs is $3250.

17

CONSIDER LIKELIHOOD OF SUCCESS

oIn light of prior reporting indicating

o Work restrictions to sedentary work, and; o Lack of any additional evidence supporting

an increase in work restrictions;

oChances of success are fairly high.

18

POSSIBLE OUTCOME Physician refuses to alter his opinion and offers a rationale

for the increase in disability. Since the physician has already found the applicant to be 100%, an increase in disability is not possible.

Actual outcome in this case was that the physician agreed that the medical evidence continued to warrant a restriction to sedentary work. However, the physician explained that it was his opinion that the applicant did not have any practical ability to compete in the open labor market. Upon further questioning, the physician agreed that he was offering an opinion that was within the expertise of a vocational expert.

Following the deposition, the parties compromised and resolved the case based on a split of the level of permanent disability between sedentary work and 100% permanent disability.

PREPARING FOR THE

DEPOSITION

PRESENTED BY: Tom Sippel, Leitner Williams, Dooley & Napolitan PLLC

Atlanta, Georgia

20

PREPARING FOR THE DEPOSITION

o First question: what type of depo is it? o Key goal: how to get responses

favorable to your client o Tailor your questions to the critical

issues in the case o Causation o Permanency of the injury o Vocational Disability or PPD o Malingering of the claimant o Need for continuing/specific treatment

21

PREPARING FOR THE DEPOSITION

o Outline the critical issues in your case and what opinion you need from the doctor on each o Work backwards- start with conclusions you

want doctor to reach and then outline how to get him/her there

o Be careful about tipping your hand if you are going to have your doctor testify

22

PREPARING FOR THE DEPOSITION

o Research doctor’s background o Prior deposition/trial testimony in similar

cases (use P/D lawyer associations etc.) o Remember comp cases are all different

o What is the doctor’s reputation with the Board/ALJ, Dept of Labor etc.

o Ask around- colleagues will have experience with that doctor (know your witness!)

o Expert discovery to get preliminary, written responses from the doctor (multiple copies)

23

PREPARING FOR THE DEPOSITION

o Review the medical chart! o Know the claimant’s medical records with the

testifying doctor thoroughly

o Make sure you have all the materials in the doctor’s file

o Know any relevant pre-existing medical history of the claimant

o Make copies of any relevant records that the doctor may not have seen

24

PREPARING FOR THE DEPOSITION

o Meeting with the doctor o State-specific rules usually determine

whether you can meet with the doctor before

o Can be critical to prepare the doctor or find out what the doctor knows or doesn’t know

o Can be useful to show the doctor the basis for your client’s position and push him/her in that direction

25

PREPARING FOR THE DEPOSITION

o Drafting your questions o Leading if possible

o Remember your audience- Judge is knowledgeable on the law and medicine

o Don’t write out verbatim questions

o Forces you to engage the doctor

o It’s an outline, not a script

26

PREPARING FOR THE DEPOSITION

o Drafting your questions (cont’d) o Tell the story:

o Start with the background (when did you first see the claimant, etc.)

o Work up to your critical questions

o Highlight in outline where you will introduce each exhibit

27

PREPARING FOR THE DEPOSITION

o Drafting your questions (cont’d) o Construct your “fence”

o ‘tell me everything the claimant suffers from as a result of this injury’

o How did the doctor reach each conclusion o All medical records reviewed (did the doctor not review

a critical prior record?)

o All information obtained by the claimant/patient (did the claimant not tell the doctor about a prior accident?)

28

PREPARING FOR THE DEPOSITION

o Drafting your questions (cont’d) o Close the fence

o “so you weren’t aware of the prior accident” etc.

o Create doubt if the doctor won’t agree with your conclusions o Most doctors won’t simply change their opinions, but

may agree with possible alternative conclusions

o Especially when presented with new information

29

PREPARING FOR THE DEPOSITION

o Remember your goals o Repeat those at the end of your outline

o Were each met? o If not, consider repeating doctor’s stated basis for

disagreeing with you to get him/her to confirm

o Your audience has wide discretion in disregarding

o You may be able to use that to set up your expert or other providers

o The conclusions may run counter to objective tests like MRI reports

30

PREPARING FOR THE DEPOSITION

o Another possible goal: using this depo to prepare for your expert o If you know the doctor won’t agree with your

doctor, set up your questions to determine the factual/medical basis for this doctor’s conclusions first

o Then go to your doctor to have him/her react and explain why he/she is correct

31

PREPARING FOR THE DEPOSITION

o If the doctor is your client’s provider: o Meet with the doctor beforehand

o Review all medical records, correspondence, discovery, and test results

o Explain to the doctor the legal issues in dispute

o Let the doctor tell his/her story- do you buy it?

o Pick his/her battles- don’t dispute every point

o Answer the question and stop talking

o Don’t guess

32

PREPARING FOR THE DEPOSITION

o If the doctor is your client’s provider: o Remind the doctor to stay mentally focused

and maintain composure

o Review the procedure with the doctor

o Remind him/her of right to review transcript

33

PREPARING FOR THE DEPOSITION

o Final preparations o Review outline, questions and goals with a

colleague

o Talk to your client to make sure you haven’t missed anything

o Follow up with providers shortly before the deposition to make sure nothing has changed in the claimant’s medical history

34

PREPARING FOR THE DEPOSITION

o Common mistakes in depo prep: o Not knowing the answer to questions you

write to the doctor

o Lack of preparation

o Lack of a road map (no ‘story’ or ‘fence’)

o Remember the Judge will probably read the transcript

o This is your opportunity to present the doctor’s testimony, not at trial (usually)

TAKING AND DEFENDING

MEDICAL EXPERT'S DEPOSITIONS

36

SHOULD YOU STIPULATE TO THE EXPERTS QUALIFICATIONS?

o Decide in advance whether to stipulate to the physician’s qualifications at the beginning of the deposition.

o As a general rule, the qualifications of the

physician are not an issue and a stipulation expedites the deposition.

o However, narrow the stipulation.

o For instance, a stipulation to the qualifications of an

orthopedic surgeon, should be expressly limited to orthopedic surgery in your case.

37

BE RESPECTFUL

o Why?

You are there to challenge the physician’s opinion, and,

Ideally have it altered in a manner that benefits your client.

o Attacking the physician on a personal or professional level is not likely to benefit your client and may even be detrimental.

38

DO NOT ATTACK THE APPLICANT

For example, if the applicant gave a false history, the question should be:

“Doctor, based on your report, at the time of your evaluation, it appears that you did not have the benefit of knowing that the applicant was involved in an auto accident just six months before his work injury, which resulted in injury to the same body part. Would this information have been critical to an accurate and complete history of the applicant?”

39

DON’T ATTACK THE INSURANCE COMPANY OR

THE EMPLOYER

o In one deposition, the physician was questioned initially by the defense attorney and the doctor did not alter his opinion.

o When the applicant’s attorney cross examined the physician, the attorney attacked the adjuster. Unbeknownst to the attorney, the physician received a great deal of business from the adjuster’s employer. Thus, in the middle of the medical questioning:

o The doctor requested x-rays from his staff, and searched

for apportionment to preexisting pathology that he previously was unwilling to find.

40

ESTABLISH THE NUMBER OF EVALUATIONS AND ALL RECORDS REVIEWED

o Example: o In one case, the physician stated in the beginning

of his deposition that he reviewed photographs of the accident scene that the applicant showed him.

o Neither counsel was aware of any such photographs.

o Defense counsel succeeded in excluding the entire report from evidence based on this.

41

LAY THE FOUNDATION FOR

YOUR QUESTIONING

o Example: o Surveillance showed a claimant doing heavy lifting

and carrying about 3 months after the initial evaluation which indicated a high level of disability.

o Later reports simply stated that the applicant continued to be symptomatic and disabled.

o Before revealing the surveillance video, the defense attorney obtained the physician agreement that the chart notes did not indicate any appreciable change over the next three months, prior to when the surveillance was taken.

42

USE LEADING QUESTIONS

o Follow the foundational questioning with leading questions.

o Avoid open ended questions. o Example:

o If an orthopedic surgeon attempts to find industrial causation of depression, do not ask why he or she feels qualified to do.

o You are likely to solicit a response about training in medical school and experience as qualifications for spotting signs and symptoms of depression.

o Instead, the question should be:

“Doctor, isn’t it true that a board certified psychiatrist would be the appropriate specialist to determine if the applicant fits the diagnostic criteria for depression as set forth in the DSM-IV?”

43

FOLLOW YOUR OUTLINE

o Follow your outline but have a degree of flexibility.

o So, if the deponent is testifying in your favor for reasons you did not consider, don’t fight it or ask follow up questions based on your outline.

o If you do so you may trigger reconsideration and a

reversal of the favorable testimony. o Once favorable testimony is provided that meets

your objective, do not continue with questions into the minutia of irrelevant issues.

44

AVOID EXTENSIVE OFF THE

RECORD DISCUSSIONS

o If there is an off the record discussion, however, and it benefits your position:

Make sure to provide a summary of the discussion once back on the record, and,

Ask the deponent to agree with your summary in a leading question.

RAISING AND DEFENDING OBJECTIONS

46

COMMON OBJECTIONS TO A MEDICAL EXPERT’S TESTIMONY

o Calls for speculation o Calls for testimony outside the deponent’s area

of expertise o Incomplete hypothetical o Vague and ambiguous o Calls for a legal conclusion o Mischaracterizes facts of case o Lacks foundation o Asked and Answered o Question is compound

47

SPECULATION

Your opponent, for example, may start off a question, by stating:

“Doctor, after having evaluated the applicant and reviewed her medical records, isn’t it possible that the applicant’s complaints of headaches are related to her back injury?”

Since, the evaluation was for the back and the physician did not solicit a history of headaches before and after her injury as part of the examination, her answer would be speculative.

48

OUTSIDE AREA OF EXPERTISE

Example:

If a question requests that an orthopedic physician provide testimony regarding the applicant’s alleged sexual dysfunction it is outside of the examiner’s expertise.

49

INCOMPLETE HYPOTHETICAL

o If your opponent asks the deponent to assume a hypothetical set of facts that she plans on proving up at a later time:

Object as an incomplete hypothetical.

Your opponent may try to inquire as to the reason for the objection. Do not debate. Simply state the objection.

It tends to throw off your opponent and sometimes causes resistance from the deponent in responding.

50

VAGUE AND AMBIGUOUS

o If a question is difficult to understand and/or rambling:

Do not let the deponent try to decipher the question and provide an open ended narrative.

Most deponents will jump on the objection and state that they don’t understand the question.

Your opponent then has no choice, but to rephrase it.

51

CALLS FOR A LEGAL CONCLUSION

o Do not allow your deponent to make legal conclusions.

o In California, psychiatric claims are barred if substantially caused by lawful, nondiscriminatory, good faith personnel actions.

o It is up to a judge, not a psychiatrist to decide what constitutes the character of the personnel action.

52

MISCHARACTERIZES THE FACTS OF THE CASE

o Your opponent asks a loaded question that twists the facts in her favor.

o For instance, the applicant’s attorney may ask: “Doctor, although the applicant’s primary complaint was back pain when he fell at work, would you agree that the medical records also support a finding that he injured his right shoulder at that time.” It may be that the applicant really didn’t fall, instead he slipped and caught himself. Letting your opponent misstate the facts, without any objection, can result in testimony that is hard to refute when a judge reads the deposition transcript.

53

LACKS FOUNDATION

o The deponent is questioned regarding whether the applicant disclosed a prior auto accident during the examination.

o No question, however, is asked as to whether the deponent made such an inquiry.

54

ASKED AND ANSWERED

o During the deposition, your opponent is not

making headway and attempts to rephrase the same question in a slightly different way in hopes of soliciting a favorable response.

o Generally, if the deponent has already shown

that she will not change her opinion, the deponent will join in your objection.

55

QUESTION IS COMPOUND

o Example: The deponent is asked about the basis for his

opinion that the applicant injured his right wrist, and the justification for periods of disability, in the same question.

Since, industrial causation and periods of disability are separate issues, the question is compound, and your objection may throw off your opponent.

USE OF EXHIBITS

57

PREPARE ALL EXHIBITS AHEAD OF TIME

o Prepare all exhibits ahead of time

in chronological order;

o Have copies for your opponent, and the court reporter.

58

TIMING OF EXHIBITS

o The timing of using an exhibit is often

critical. o Once the deponent has agreed to a

specific conclusion based upon a hypothetical set of facts, the exhibit is shown to the deponent. Then:

Use a leading question asking the deponent to

agree that the exhibit supports your position based upon the deponent’s earlier agreement.

59

CONCLUSION

60

KEY POINTS

o CONSIDER PROS AND CONS OF TAKING EXPERT’S DEPOSITION

o BE RESPECTFUL/DON’T ATTACK

o LAY A PROPER FOUNDATION

o USE LEADING QUESTIONS

o RAISE AND DEFEND OBJECTIONS

o PROPERLY USE OBJECTIONS

61

POST- DEPOSITION STRATEGIES

o Using deposition testimony

o Fluid Process- your use for the deposition may change significantly depending on the doctor’s testimony o May want to use as basis for a motion

o May want as leverage for mediation/settlement negotiations

o May want to use for your own expert’s review

62

POST- DEPOSITION STRATEGIES

o Fix your mistakes (or the doctor’s) o Go back to your expert to clarify conclusions

o Obtain additional testing to support testimony or conclusions

o Correct any factual errors or assumptions in your questions

63

POST- DEPOSITION STRATEGIES

o Using deposition testimony during discovery process o Use testimony to bolster your client’s

position (i.e., the claimant can’t work or the claimant can because Doctor _ said so)

o Obtain confirmation of the doctor’s testimony from other providers

o Make sure the other side is aware of beneficial testimony:

64

POST- DEPOSITION STRATEGIES

o Using deposition testimony for pre-trial motions o Use as basis for supporting your motion to:

o Stop/start income benefits (timing is critical!)

o Obtain medical treatment

o Award disability

o Possible Daubert motion

65

POST- DEPOSITION STRATEGIES

o Using deposition testimony for settlement leverage o Prepare highlights of testimony for mediation

presentation

o Remind the other side of the importance of the physician’s opinion and how it bolsters your case

o Use as an outline of the claimant’s condition, prognosis and costs of same

66

POST- DEPOSITION STRATEGIES

o Use deposition testimony to prepare your witness o Have your witness/provider review the

testimony and exhibits

o Have your witness outline issues in dispute and use as a template to prepare your witness for testimony

67

POST- DEPOSITION STRATEGIES

o Follow up! o Often doctors will amend their opinions

following additional treatment

o E.g., if doctor testifies the claimant should be at MMI x number of months following specific treatment, get that done and then follow up with doctor- use his/her words against him/her

68

POST- DEPOSITION STRATEGIES

o Attacking the deponent’s conclusions o For post-deposition motions

o Possible basis for motion to exclude doctor’s opinions or motion for change in ATP

o Show the judge why the conclusions are wrong o Inconsistencies with the testimony

o Disagreement by other experts

o Factual errors by the doctor

o Multiple assumptions by the doctor

69

POST- DEPOSITION STRATEGIES

o Use as a template o Use deposition to follow up with other

providers or testifying doctor

o Use as a treatment plan

o Use as a timeline for resolving case

o Use as an estimate for assessing the costs of future care

70

POST- DEPOSITION STRATEGIES

CONCLUSION

AND

QUESTIONS

71

John M. Langevin Floyd Skeren & Kelly Riverside, Calif. [email protected] (951) 684-6870 ext. 7574 Bernadette M. O'Brien Floyd Skeren & Kelly Calabasas, Calif. [email protected] (916) 920-1100 ext. 3250

Thomas O. Sippel Leitner Williams Dooley & Napolitan Roswell, Ga. [email protected] (678) 206-2500 Dona L. Skeren Floyd Skeren & Kelly Calabasas, Calif. [email protected] (818) 206-9222