Your patient’s personal-injury case is going to trial and your testimony is needed. There are two ways to do this: by deposition or by actually appearing and testifying as an expert witness at the trial. This article explores the advantages and disadvantages of each, both for you and for your patient.
Many doctors tell us they prefer testifying by deposition, usually at the end of the day. This preference may be based on the assumption that agreeing to testify at trial will mean wasting time at the courthouse waiting to be called. This need not be so. In fact, the local courts are very willing to accommodate a doctor’s schedule. Most judges are willing to arrange for the doctor’s testimony to be given at a specific time, even if it involves changing the order of the witnesses. Of course, the attorney involved must be proficient at anticipating how quickly the trial will proceed. Also, there is the rare time when something regarding the court’s schedule, which could not be anticipated, causes a delay.
In other words, it is possible to schedule your trial testimony for, say, 3:30 in the afternoon. This means you’d be done and out of there by 5 o’clock. So, your testimony at trial may take no more time than a deposition. The only difference would be the time it takes you to get to and from court. In light of the difference it may make to your patient’s case, your patient will probably greatly appreciate your willingness to take this extra bit of time.
Deposition testimony is usually video-taped and shown to the jury during the course of the trial. The insurance company opposing your patient’s claim almost always has its medical expert(s) testifying live at the trial. A live witness is usually more effective than a videotaped one.
A deposition is usually not allowed to be taken less than seven days before the trial. This time lag between your testimony and time the defense doctor testifies will give the opposing medical experts plenty of time to review your deposition testimony and develop a rebuttal. Of course, if you are a witness at trial, the other witness will not have such an advantage in opposing your testimony.
If the trial has to be postponed, deposition testimony becomes stale. Or, worse, the witness has to be re-depositioned.
If video-taping your deposition is too costly for your patient, or for some other reason cannot be arranged, your patient will have to hire someone to read your testimony from the deposition transcript at the trial. The potential disadvantage here is that your stand-in may not be able to project your professional expertise.
Whether you are testifying by deposition or live at the trial, your preparation is of utmost importance. That is why a pretrial or pre-deposition conference with your patient’s attorney is critical.
Thirty days before the pre-deposition or pretrial conference, we send medical records, including prior related records, and a medical bills summary to the doctor(s) we have asked to testify for our client. These records are organized and tabulated to facilitate your review. At the pre-trial (or pre-deposition) conference, we tell the doctor what questions he/she can expect to be asked by us and alert the doctor to possible areas of cross-examination.
Your knowledge of your patient’s prior treatment (and treatment by other doctors) is usually critical to the effectiveness of your testimony. The other side will cross-examine you and will try to defeat your patient’s claim by discounting your testimony if you have not reviewed your patient’s prior records. While the extent of your preparation is, of course, entirely up to you, you will probably want to insist on being furnished complete records so you have the opportunity to be thoroughly prepared.
We provide a “medical bills summary” to our medical witnesses. One question which may arise is whether the charges for a particular medical service were “reasonable and necessary.” The summary allows the medical witness to identify any such problems and raise them at the conference with the patient’s attorney.
We recently took over a case from another law office where the deposition was done poorly because the doctor was neither prepared properly nor given records. Like any professional, lawyers vary in their degree of competence. However, to protect your patient’s best interest in giving effective testimony, you have a right to insist on a pre-deposition or pretrial conference, as well as copies of all medical records which may be related to the case.
Like the courts, attorneys should be willing to respect and accommodate physicians’ schedules. As we attempt to schedule doctors for conferences and testimony, we hope for a spirit of mutual cooperation and understanding. For example, we hope doctors’ offices will recognize that we may be coordinating the schedules of at least two attorneys, as well as the client/patient and others (such as the recorder/reporter), in addition to the doctor’s schedule. Doctors should also be aware, as explained in another article in this issue, that their patients are ultimately financially responsible for the cost of the medical testimony.
We recognize that many physicians do not like to testify in court. We realize that you would rather spend your time treating your patients. Sometimes your patients need testimony that only you can give. If you were the treating medical professional, we cannot look anywhere else for the necessary expert testimony to present the case.
We know you want to do the right thing by your patient. In return, you are entitled to be treated with courtesy and respect by the legal system. If you feel this has not occurred, we would be happy to discuss your problem with you and suggest solutions.
This article was prepared by Dennis H. Black