The defense of personal injury claims has long followed the same pattern: discovery designed to maximize the amount of claim information obtained in a cost effective and efficient manner. But this pattern typically results in not taking the depositions of treating health care providers until nearly before trial.
A compelling argument exists that, in many cases, waiting to take the treating health care provider’s deposition until the very end of discovery has effectively placed the proverbial cart before the horse. Consideration should instead be given to identifying and taking a treating health care provider’s deposition first in an effort to limit or control the damage allegations that may be raised later.
Litigation and Treating Providers
Traditionally, when a lawsuit commences, there is little desire to run up defense costs—including fees for treating-physician depositions—before deposing the plaintiff, fact witnesses, and determining if the claim may be resolved early. After the filing of responsive pleadings to a lawsuit, the defense follows a “cookie cutter approach” that includes written discovery requests to plaintiff, followed by medical record subpoenas to plaintiff’s medical treatment providers. Once adequate treatment records are received, plaintiff’s deposition is taken before the matter proceeds to mediation. If the matter does not resolve at mediation, expert discovery is completed, and experts are retained and deposed by both sides. Finally, as the matter approaches trial, the depositions of the treating health care providers are taken to preserve their testimony for trial.
However, litigation costs have changed significantly over the years, and changing the pattern to depose at least one independent treating physician early in the case will not affect the budget the same as retaining experts; in fact the early litigation investment may be rewarded. Importantly, treating physicians are often viewed as the most neutral and credible medical witnesses a jury will see. Their early testimony could help you favorably resolve claims well before a case even proceeds to trial. Exaggerated claim-value settlement demands are primarily driven by opinions obtained from retained experts. Worse yet, some demands seem to arise from entirely unsupported damage allegations. To respond, accepting the early expense of deposing an independent treating physician at the outset of a case when one is available should be routinely explored as a potential way to anchor the damage allegations to the actual objective injuries diagnosed and discussed in the treatment provider’s records.
This is not a consideration that applies in cases where the course of plaintiff’s medical treatment was set up and curated by counsel to only include treatment by doctors who have a continuing referral relationship with plaintiff counsel’s firm. Deposing an independent treatment provider first should be considered in the majority of cases where the plaintiff received treatment from non-retained independent physicians. Such providers are often found in preliminary diagnostic and treatment records like emergency room physician records, or the records from established primary care physicians.
The Differential Diagnosis
The goal of taking a treating physician’s deposition early in a case is to get the physician to adhere to a differential diagnosis or a list of the possible conditions that may have produced the plaintiff’s symptoms. A large amount of peer-reviewed medical literature supports the use of a differential diagnosis as the process a medical treatment provider uses to consider symptom causation. When examining a treating physician, your questioning should confirm if a proper differential diagnosis was performed and, if so, the results. If the record does not include an identifiable differential diagnosis, then the physician should be asked to offer one during the deposition.
For example, if a patient goes to the dentist and reports biting a hard object in her food, are the teeth alleged to be damaged the result of striking a hard object, or possibly the result of a history of eating disorders, gastroesophageal reflux disease, teeth grinding, tobacco use, and/or poor dental habits? Example differential-diagnosis questions for this dentist would include: Did you investigate the cause of the tooth loss? Do you agree that the purpose of a differential diagnosis is to identify all possible causes of a condition? Did you formulate a differential diagnosis? What other causes for the symptoms are possible? Did you explore each potential cause?
In addition, if no proper differential diagnosis was performed, then the treatment provider can be asked how they could state, within a reasonable degree of medical certainty, what the cause of the symptom was.
A treating physician may agree and offer a list of other potential causes, especially if the patient has a history of other contributing factors or potential causes. If the physician agrees that no opinion can be offered within a reasonable degree of medical certainty, you now have a documented medical opinion as to what other causes may have led to the plaintiff’s symptoms and can frame your litigation defense accordingly. Plus, you may now have a neutral, credible witness to testify at trial that the cause of the symptoms is unclear—and counsel for plaintiff will know it, rendering a favorable early resolution more likely. Notably, if plaintiff was not fully forthcoming about her history or other relevant information, advising the treating physician of this information during a deposition, and obtaining the reaction (e.g., yes, knowing that would certainly have affected my opinion, recommendations, or conclusions) serves to both hinder plaintiff’s credibility and put her on an uphill climb to make her case.
Evolving Discovery Methods
To find support for moving an independent treatment provider’s deposition to the front of discovery, rather than keeping it last, evaluate from an adjuster and attorney perspective how discovery tactics from plaintiff’s counsel have recently evolved. In cases involving a commercial or corporate defendant, the past several years have seen a dramatic increase in early requests to take the deposition of a defendant’s corporate representative. At times, these requests are filed the very first day of discovery, after close of the pleadings, or even served with the summons and complaint.
The ability to object to premature corporate representative deposition varies by jurisdiction. The threat posed by an early corporate representative deposition is that the testimony, taken at the outset of a case, is then later used by plaintiff’s counsel to “box in” or guide the testimony of the actual fact witnesses who are often being deposed years after an incident. Or, conflicts between the corporate representative’s very early testimony and a later fact witness are used by counsel so plaintiff can question the credibility of the entire theme of the defense. Certainly, in situations where variances exist between the early testimony of a corporate representative and a later fact witness, any expert retained by the defense must prepare to be asked about those differences and expect to answer which version of fact the expert relied upon.
Fortunately, the strategies in civil litigation are equally applicable to both sides. The same effect sought by plaintiff counsel at an early corporate representative deposition can be pursued by the defense at an early independent treating-physician deposition. After all, what is an independent treating physician if not the “representative” of the plaintiff’s injury claim.
Prescribing the Right Discovery Approach
If taken early, an independent treating physician’s testimony could be used to cause a conflict with any exaggerated opinions provided by plaintiff’s later-retained expert. In addition, thoroughly exploring the plaintiff’s differential diagnosis at an early treating-physician deposition could provide a list of alternative medical causation theories neither plaintiff counsel nor their retained experts can dismiss.
In response to continually increasing litigation expenses and settlement demands, accepting the costs of an early treating-physician deposition presents an opportunity to attempt to limit more substantial costs, expenses, and expert damage allegations down the road by providing early support to rein in a plaintiff’s demands from a particular injury claim. While litigation expenses should always be a consideration, the potential benefit to be gained from an early independent treating-physician deposition could outweigh the expense and result in memorializing early evidence that then limits the overall exposure, and later expense, of your case.