Understanding common problems in medical testimony in injury cases
In personal injury law practice in Atlanta, Georgia, we often deal with treating doctors who don’t want to bother with testifying for their seriously injured patients, and with a small number of doctors who make a good living by consistently testifying for the defense almost without regard to the facts.
Of course, most treating physicians are caring, compassionate and helpful to their patients, just as most lawyers are conscientious, ethical and hard working. It is a small minority within both professions that create many problems for the ethical majority.
An article in today’s Fulton County Daily Report highlights both categories of problems with medical testimony. It also underscores the deficiencies of the Georgia medical narrative statute and the need for effective cross examination of doctors who consistently testify for insurance companies to deny all injury claims.
Georgia law includes a provision for use in evidence of medical narrative reports in lieu of physicians’ testimony. The statute and case law require that narratives be written in plain English intelligible to the jury and not filled with technical jargon. It is extremely difficult to get doctors to dictate a medical narrative in plain English.
The article focuses on a narrative report signed by a plaintiff’s treating physician. At trial it came to light that the plaintiff’s attorney had drafted the report which the doctor signed. That apparently impacted the jury’s view of the credibility of the report.
To get a treating physician to testify live in court is so difficult and expensive that it almost never happens in personal injury cases. The cost of taking a doctor’s deposition on video to use at trial is often $2,000 or more. And the prices charged by medical personnel keeps going up. Doctors have charged us $1,500 just to dictate a one or two page letter for use as a narrative report. We were recently informed that it would cost $1,500 per fifteen minutes just to interview a physician’s assistant. We have encountered doctors who charge $500 or more just to add a signature to a report that was already in their medical charts.
Because of the cost of obtaining doctor’s testimony, attorneys are often forced to use the medical narrative statute. However, the same doctors who charge thousands of dollars per hour to testify about their treatment of their patients charge up to a thousand dollars to dictate a narrative report, and are either unable or unwilling to provide a report phrased in layman’s terminology rather than medical jargon.
Therefore, in order to use the medical narrative statute lawyers may be forced to interpret the doctor’s technical language into plain English, and provide the intelligible version to the doctor to sign. But if it comes to light that the lawyer drafted the version used in court, the effect can be devastating.
That’s why I have just about abandoned use of the medical narrative statute unless there is already an intelligible, signed report in the medical records. One might as well bite the bullet and pay the exorbitant cost to take a deposition on video to play for the jury in court.
The second point in the article was that a well known semi-retired orthopedist had been effective in persuading the jury that the plaintiff’s condition was almost entirely preexisting and that there was no serious injury. He regularly reviews files and conducts adversarial medical exams for insurance companies, and has testified hundreds or thousands of times that
I have taken that same doctor’s deposition a few times. The last time he testified for the defense in one of my cases, I had a stack of his prior depositions and was able to thoroughly neutralize his testimony by revealing that he has made a good living for decades by consistently testifying on behalf of insurance companies that no one is injured in an accident. Watching the jury’s response to his video testimony was pretty amusing.
Representing an injury survivor in a personal injury case is hard work. Putting together the evidence to present at trial is expensive. Nothing is simple. Nothing is easy. Everything takes more time, effort and money than most people suspect. Anyone who expects treating physicians to be uniformly cooperative in helping their patients is dangerously naive. And when the defense brings in one of the "usual suspects" among defense doctors to claim that the person was not really hurt, the plaintiff’s lawyer must be prepared to that the defense doctor head on.
Ken Shigley, author of Georgia Law of Torts: Trial Preparation & Practice, is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and has been listed as a "Super Lawyer" (Atlanta Magazine), among the "Legal Elite" (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers. He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, spinal cord injury, wrongful death, products liability, brain injury and burn injury cases. He is also president-elect of the State Bar of Georgia. Ken and This post is subject to our ethical disclaimer.