Trial Magazine

Treating physicians are the most credible witnesses to explain and prove injuries in personal injury cases. They also may be powerful expert witnesses on complex causation, lifetime prognosis, and future medical needs in catastrophic injury cases. For the most useful testimony, you need a plan from day one.

Witness Selection

The first step is to select a treating physician as your witness. Most catastrophically injured clients have been evaluated and treated by dozens of health care providers, from initial acute care through rehabilitation. Given time, cost, and availability, you cannot call even a fraction of these providers—but in my experience, less is more when it comes to coordinating and presenting medical testimony on injuries, causation, and damages.

Start with the most current specialized treater of your client’s most significant injury based on a review of the medical records. This does not necessarily need to be a physician. For example, in one case involving a traumatic amputation when causation was immediate and undisputed, the certified prosthetist had more experience with a high-cost microprocessor limb than either the trauma surgeon or the rehabilitation physician—and was able to explain in detail how the limb would protect the client from further injuries or increased disability.

In each case, consider what you need to prove and which care provider has the strongest expertise and qualifications to testify on those issues. Most often, however, the injuries and causation witness you want to call is a physician who has the most expertise.

The Initial Meeting

After identifying an appropriate treating physician, investigate his or her professional licensure and certifications on practice websites and publicly available websites, such as state medical boards and the American Board of Medical Specialties. Ask colleagues if they have worked with this physician, and if so, ask for prior deposition transcripts and trial testimony.

If there are no red flags, fax or email the doctor an introductory letter, explaining who you are and whom you represent. Don’t forget that both written and verbal communications with treating physicians and other health care providers are generally discoverable, so make sure you convey accurate facts. Request a meeting to discuss your client’s current status, prognosis, and future treatment, and attach copies of the doctor’s own records of your client for reference.

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Use the first meeting to obtain a copy of the doctor's CV, discuss the permanency of your client's injuries, and get general thoughts about your client's future needs and care.

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You will initially meet the physician informally and off the record. Use the first meeting to obtain a copy of the doctor’s CV, discuss the permanency of your client’s injuries, and get general thoughts about your client’s future needs and care. Ask about the doctor’s qualifications, willingness to testify on causation at trial, and education and specific clinical experience with your client’s particular injury and treatment. Sometimes I bring a notebook of the client’s prior medical records, and I ask the doctor about any red flags.

With a proper foundation, the physician can testify about the medical history of the acute injuries, in addition to the care and treatment he or she provided. If the injury at issue occurred long before the doctor began treating your client, provide all prior treatment records for review. Having this medical history also bolsters the foundation for an opinion that the traumatic event is the proximate cause of the injury, since the physician can rule out preexisting conditions and past trauma.

The treater may also testify about prognosis and future needs and act as a medical adviser and collaborator with the life care planner. This may require the treater to wear two hats—as a fact witness and an expert witness—but it may also streamline the damages presentation by reducing the number of witnesses to the treating physician, a life care planner, and an economist. This approach allows you more time and resources to work extensively with all of these witnesses.

This meeting is also a perfect time to evaluate how the treater will come across to jurors. Ask open-ended questions, such as “How would you explain this to a jury?”, and see if you get a credible, simple, and clear response. If you do not, consider whether you need to find another treater.

The Pre-Deposition Meeting

Plan a second meeting a week or so before the treating physician’s discovery deposition. Before the meeting, provide the treater with a notebook that includes an indexed set of pre- and post-incident medical records from all providers—including the treater’s own records—that have been produced in discovery, as well as any relevant imaging studies.

Use these records to review the time line of key events and to point out the case’s strengths and weaknesses. This helps the treater refresh his or her recollection and develop an accurate chronology of medical evaluation and treatment. It also gives you the opportunity to see how the treater will respond when the defense attempts to use certain medical records to undermine your theory.

Don’t forget to give the other providers’ records to your witness—they may contain information that your witness can use to counter the defense. For example, if the defense challenges the doctor’s diagnosis of complex regional pain syndrome by pointing to other care providers’ X-ray or MRI evidence out of context, it is critical for your witness to have access to those complete records. These records may rule out alternate diagnoses or contain other information that the treating physician can then use to undermine the defense counsel’s assertions.

Other relevant documents may include your client’s interrogatory responses and transcripts from your client’s, family members’, or other witnesses’ depositions. They may confirm the medical history documented in the records, bolstering your client’s credibility and the doctor’s confidence that the medical history is reliable.

Reviewing these documents also gives you time to find explanations for any inconsistencies—and to figure out whether these inconsistencies are relevant to the doctor’s opinions. The goal is to protect the treating doctor from being blindsided at the deposition by giving him or her all available information, as well as sufficient time to review it and determine its significance.

Prepare the Witness

Prepare an outline that will form the basis for your direct examination at trial, starting with questions about the treater’s medical education, licenses, certifications, and practice experience. After background basics, focus on the level of education and experience with the particular injury at issue and any relevant teaching positions or publications that speak to the treater’s qualifications and credibility.

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Figure out what to cover by anticipating what defense counsel may ask at the deposition—such as how many times the treating doctor has made this diagnosis or performed the surgery at issue.

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Figure out what to cover by antici-pating what defense counsel may ask at the deposition—such as how many times the treating doctor has made this diagnosis or performed the surgery at issue. Raise these questions in advance to give the treater enough time to prepare simple and accurate responses.

Also ask the treating doctor to tell you how he or she will explain your client’s injury, condition, or surgery to the jury. This helps teach you the medicine and shows you what kind of witness the doctor will be. Next, ask what pre-incident medical history is important and why—and point out any history the defense may raise so you can understand how the treating doctor will evaluate this evidence in context. Other areas to cover include the

• level of pain your client has endured on a 1–10 scale
• causation, permanency, and degree of impairments
• recommended future medical, surgical, and rehabilitation treatment over the client’s life
• need for attendant care or household services
• significant risks of the condition and its treatment
• possibility of any employability restrictions
• client’s commitment to recovery.

Finally, ask the the witness challenging cross-examination questions that you anticipate during discovery and at trial. This gives the witness time to prepare and consider supporting medical research. Tell the treating physician that after answering “yes” or “no” to a question on cross, he or she can give an explanation or qualification without waiting to explain on redirect. Answering in full when the question is initially asked will make the testimony stronger and clearer.

Navigating Disclosure and Daubert Issues

Courts distinguish between a treating physician’s testimony as a fact witness (observations and opinions arising during treatment) and testimony as an expert witness (regarding complex causation and other opinions unrelated to the physician’s treatment of your client). Research the applicable state or federal rules of evidence and civil procedure to learn potential limitations on scope and any disclosure requirements, which can range from none to a full medical report.¹

Causation. Expert testimony has not always been required to meet the plaintiff’s burden of proof that an event caused his or her injuries. For example, courts have found that expert medical testimony is not required for a plaintiff to meet the burden of proof on causation when there is no significant time lapse between the injury and the onset of the physical condition at issue and if the plaintiff’s injury is a matter of common knowledge, such as when a plaintiff experienced neck, back, and shoulder pain immediately after a car crash.²

The more recent trend is that a treating physician generally is not allowed to give opinions that the traumatic event caused the injury or condition unless the treater is qualified, has been identified as an expert witness, and his or her opinions and bases for those opinions have been formally disclosed by a summary pleading disclosure or an expert report.³ Accordingly, you must research each situation to determine what opinions a treater may give regarding causation as well as what disclosures are required.

Care and treatment, diagnosis and prognosis. Many jurisdictions allow a treating physician to testify about the care and treatment of patients, and diagnosis and prognosis, without being identified as an expert witness. For example, they do not require expert witness identification of fact witnesses who have expertise, such as treating physicians, since their knowledge and opinions arise from personal involvement with the patient.⁴ But when the treating doctor considers facts beyond those obtained while examining your client—such as photographs of an automobile collision or other physicians’ statements—there may be more rigorous disclosure requirements.⁵

The test seems to be as follows: A treating physician may testify as a lay witness regarding observations and decisions made during the course of a patient’s treatment. But an unrelated opinion “based on scientific, technical or other specialized knowledge,” is expert testimony for which the court must perform its essential gatekeeping function as required by Daubert.⁶

To meet the Daubert standard, consider preparing the doctor for deposition with questions to establish that

• the causation opinion and other relevant opinions are based on routine activities as a physician, within the scope of training and specialty experience, and based on his or her examination of the plaintiff and medical history review
• the event caused or was at least a substantial factor contributing to the plaintiff’s injury within a reasonable degree of medical probability
• a differential diagnosis was used to consider other possible explanations for symptoms and that the methodology used is generally accepted as a reliable method and supported by peer-reviewed medical literature.⁷

Trial Preparation

By the deposition, you’ll have completed the vast majority of your trial prep for your treating physician witness, but don’t neglect several key issues in the weeks and days leading to trial.

Consider photographs and images that the treating physician may wish to use to describe injuries during direct examination—these can be very persuasive. Have the treater select one or two of the strongest images to help explain the nature and extent of the trauma, and then take the selected images to a medical artist to get them colorized. For example, if the plaintiff has had hardware implanted, consider using before-and-after images. Have the treating physician review the colorized images, and walk through the corresponding foundation and testimony.

Make sure you refresh the treating physician on the legal evidentiary concepts that will apply to his or her trial testimony. In particular, review the concepts of reasonable medical certainty, proximate cause, substantial contributing factor, differential diagnosis, and any other applicable evidentiary matters.

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Consider one or two additional sessions to prepare for direct and cross-examinations, including laying the foundation for medical history review and using demonstrative images.

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Consider one or two additional sessions to prepare for direct and cross-examinations, including laying the foundation for medical history review and using demonstrative images. Make sure the treater has an updated trial notebook of all pre-incident and -post-incident medical records, including printouts of their records of your client’s treatment, in case he or she has to refer to the hard copies during testimony.

When working with treating physicians, an early and comprehensive approach will help you achieve the best outcome for your clients—and make a difference in their lives.

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Susan M. Cremer is a partner at The Law Offices of Michael Lawson Neff in Atlanta. She can be reached at scremer@mlnlaw.com.

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Notes

1. In Georgia, for example, see Candler Gen. Hosp. v. Joiner, 349 S.E.2d 756, 758–59 (Ga. Ct. App. 1986) (Georgia law does not require fact witnesses who have expertise—such as treating physicians—to disclose the same information as expert witnesses, because the knowledge and opinions of the former arise from personal involvement with the patient); see also Yang v. Smith, 728 S.E.2d 794, 800 (Ga. Ct. App. 2012) (Ga. Code Ann. §9-11-26(b)(4)(A)(i) is inapplicable to a physician whose knowledge and opinions arise from personal involvement with the patient). Fed. R. Civ. P. 26(a)(2)(C) provides for summary disclosures of experts who are not required to submit written reports, which may include treating physicians; the committee notes on the 2010 Amendments specifically reference treating physicians as a type of expert within the ambit of Rule 26(a)(2)(C). However, it still may be necessary to disclose a treating physician (including the production of a report, compensation disclosure, and case list) under the more complete provisions of Rule 26(a)(2)(B) if the treater’s testimony could exceed the scope of treatment and involve issues of causation. See Jones v. Colo. Cas. Ins. Co., 2015 WL 6123125 (D. Ariz. Oct. 19, 2015); Beauchamp v. City of Dixon, 2014 WL 901437 (N.D. Ill. Mar. 7, 2014); Hayes v. Am. Credit Acceptance, LLC, 2014 WL 3927277 (D. Kan. Aug. 12, 2014); Call v. City of Riverside, 2014 WL 2048194 (S.D. Ohio May 19, 2014); Armer v. Golden Corral Corp., 2013 WL 12171159 (W.D. Okla. Aug. 28, 2013); Kondragunta v. Ace Doran Hauling & Rigging Co., 2013 WL 1189493 (N.D. Ga. Mar. 21, 2013).
2. See, e.g., Jordan v. Smoot, 380 S.E.2d 714, 715 (Ga. Ct. App. 1989).  
3. See, e.g., United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (the cause of an injury was not necessary to its treatment); Trinidad v. Moore, 2016 WL 5341777, at *5 (M.D. Ala. Sept. 23, 2016) (“treating physician’s testimony is an opinion which must be disclosed unless the opinion was made within the course of treatment”); Gordon v. Wal-Mart Supercenter, 2009 WL 3850288, at *8 (S.D. Ala. Nov. 12, 2009) (treating physician may not testify to “any statements in the medical records unrelated to the treatment of plaintiff, including any statements as to the causation of plaintiff’s injuries”).
4. See Yang, 728 S.E.2d at 800; see also Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 1317 (11th Cir. 2011) (allowing testimony based on personal knowledge, including the treatment of the party); Chau v. NCL (Bahamas) Ltd., 2017 WL 3623562, at *7 (S.D. Fla. May 3, 2017) (limiting treating physician’s testimony “to personal knowledge resulting from providing medical care, involving consultation, examination, or treatment of a patient plaintiff”) (citing Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1316 n. 23 (11th Cir. 2014) and Henderson, 409 F.3d at 1300).
5. See, e.g., Trinidad, 2016 WL 5341777, at *5; Rossi v. Darden, 2017 WL 2129429, at **3–4 (S.D. Fla. May 17, 2017); Rangel v. Anderson, 202 F. Supp. 3d 1361, 1364–65 (S.D. Ga. 2016); Kondragunta, 2013 WL 1189493. 
6. See Kenneth L. Shigley & John D. Hadden, Georgia Law of Torts—Trial Preparation and Practice §26:15 (2018 ed.) and cases cited therein.
7. See id.