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Do you suppose I should depose?

Robert Gruber

We depose claimants all the time in workers’ compensation claims. If a hearing is coming up, or if we don’t understand what the case is about, we will automatically take a claimant’s deposition and ask very open-ended questions to… discover things. But the decision to depose a doctor is a little more complicated. First of all, there is the cost. Some doctors charge 4 figures to sit for a deposition and it would truly be insulting to pay this amount of money and get absolutely nowhere. The other consideration is, of course, what you are trying to accomplish. Clement Rivers, LLP has a few tips to help you make this costly decision.

First of all, if a doctor has already provided medical evidence which hurts your otherwise defensible case, you have nothing to lose by deposing the doctor.  In our experience, the Commission gives short shrift to arguments such as “that opinion was written by the claimant’s lawyer and merely signed by the doctor, so give it no weight.” So if a doctor has already provided an opinion, or a medical record which sinks your case, take the deposition. Don’t snooze if you have nothing to lose.

Second of all, if you have a doctor’s opinion which is based upon inaccurate information (for example, a repetitive trauma injury where the doctor clearly did not understand the ins and outs of the claimant’s job) – depose!  Most doctors do not appreciate being misled by anyone and you as the employer can easily muddy the water if you can dispute the facts upon which the doctor’s opinion is based.   This is an effective way to drop the doctor’s opinion below “reasonable degree of medical certainty.”  With wrong facts, you must attack!

Third, if you are dealing with an occupational exposure claim and a doctor’s opinion is in any way based upon epidemiological studies? Depose!  Very few epidemiologic studies actually show cause and effect. They merely show association between exposure to something and the onset of some disease. Study design, dose response relationship, and statistical confidence intervals become very important in figuring out whether or not a particular piece of epidemiologic research actually supports a doctor’s opinion on causality. Clement Rivers, LLP has learned throughout the years that many well-respected occupational health physicians and specialists will shy away from supporting the proximate cause standard used in our current repetitive trauma law and occupational disease statute.  Now keep in mind that these depositions will be expensive, but so is a compensable occupational disease claim.  So if exposed, depose!

Finally, you just never know until you ask. Doctors are busy; practicing physicians will see hundreds of patients in a week, and the doctor’s physician assistant may have actually filled out and signed that check-off form. But you won’t know unless you ask. If you have questions about specific physicians and how they respond to depositions, please contact the lawyers at Clement Rivers, LLP, as we are always happy to help you make these decisions.