This article is a transcription of an episode of the RateFast podcast, which you can listen to by searching “RateFast” in iTunes or the iOS podcast store.
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In workers’ comp cases, a doctor will often need to give a deposition to a lawyer. This is not to question the doctor’s capabilities, but rather to get their testimony. In most cases, courts actually prefer a doctor’s deposition to a live testimony.
Sometimes there may be some tension between a doctor and an attorney when a notice of deposition is issued. It is not a cause for alarm! Workers’ comp attorney Phil Walker talks through the issue with Dr. John Alchemy, and gives some tips on how to give a successful deposition.
Deposition (noun) – the process of giving sworn evidence.
Subpoena (noun) – a writ ordering a person to attend a court.
Motion to quash (noun) – a request to a court to render a previous decision of that court or a lower judicial body null or invalid.
Notice of deposition (noun) – A document directing a witness to appear to answer questions under oath.
Narrator: Welcome to the California Work Comp Report, a podcast hosted by Arun Croll and Claire Williams, featuring Dr. John Alchemy.
John: Hi, this is John Alchemy. I’m with RateFast, and today you are listening to the California Workers’ Compensation Report. And today, my guest is Phil Walker. He is a work comp attorney in California, and he is joining us today to talk about depositions in workers’ compensation. Hi, Phil!
Phil: Hi, John!
John: So, I picked this topic today to talk about because I get a lot of questions, not only from patients, but from doctors who are kind of confused about what is a deposition, what are my requirements, how do I comply with something like a subpoena, all these questions, and I was kind of hoping you could sort that out and unpack it for us.
Phil: Sure, I’ll be happy to. A deposition is, essentially, where an attorney gets to ask a series of questions, and we’ll use as an example, he’s deposing a doctor who’s written a report in a case. So the deposing attorney gets to sit down and ask questions of the doctor, the doctor answers them, and the questions and answers are recorded by a court reporter and are written up into a little booklet that’s called a transcript. And that can actually be introduced as evidence at the time of the trial. In workers’ comp cases, the actual rules of the workers’ comp court prefer that doctors not come in to the court and testify live, but instead that any testimony they have to give be given in the form of a deposition. And that’s why you see a lot of depositions done in workers’ comp cases. Now, depositions of doctors are normally, in the great majority of workers’ comp cases, they are taken by the attorney who is representing the employer and/or the insurance company. Not always — sometimes the plaintiff’s attorney will take one — but usually it is the defense attorney. And the defense attorney wants to question the doctor for really three reasons: First, there may be some legal question that has to be answered to see what the case value is that the doctor has not addressed. Let me give you an example.
Phil: The first example would be, if the problem, the impairment that the injured worker currently has, was caused by two different injuries, then you want to know what percentage goes with each injury. And if the doctor has not addressed that, he will likely be deposed on that issue. The second thing the doctors are questioned about is their conclusion. If somebody has his arm cut off at work and there were witnesses who saw it, usually there’s no question about whether the work caused that injury or not.
Phil: But if some doctor has written an opinion that says, “This patient has diabetes, and that was caused by their work,” then I think anybody would have a question on how the doctor reached that conclusion. The second area that doctors will be questioned on, and that diabetes one is a good example – if a doctor said the work caused the diabetes, what’s the basis for that? What’s the science? What’s the medical literature? What does he rely on to support that? And then the third reason that doctors are often deposed, and it’s probably the most common reason in California, is “Has the doctor calculated the permanent impairment this patient has correctly, under the AMA Guides?” [The textbook that controls the evaluation of Permanent Impairment in California] And that is one of the largest reasons why doctors are deposed. Now, John, interestingly, doctors will often feel that they’re on the stand and Perry Mason is after them [TV reference].
Phil: And he’s questioning their medical competence.
Phil: Usually, in workers’ comp, that’s not the situation. Where this comes from is, doctors, the only thing that they think of in terms of depositions is medical malpractice cases.
Phil: “Am I being sued because I made a wrong decision in the treatment and care of this patient?” Medical malpractice is not an issue, usually, in a workers’ compensation case. And so normally, attorneys deposing doctors in workers’ comp are not questioning or attacking their medical competence. That’s solely addressed in the beginning of the deposition, where they ask the doctor for his curriculum vitae and they go over his background. And as long as he has the appropriate qualifications, meaning if this is an orthopedic case, is he an orthopedist, pretty simple, then he is qualified to render an opinion. And so my experience is, a lot of doctors tend to get quite agitated before the deposition, because they think that their medical judgment or confidence is being questioned. Usually after a workers’ comp depo, they’ll say “Oh, that was so much easier than I thought it was gonna be.” And I want to share one secret with the doctors who might be listening, that is the greatest secret I ever learned about how a doctor should conduct himself in a deposition.
Phil: When I first started my career in workers’ comp, there was a brilliant doctor who really taught me a lot that I learned, and his name was Joseph Bernstein. And every Friday morning, Dr. Bernstein did a series of depositions in his medical office, and he always had coffee and donuts, and it was a very civilized encounter. And when Dr. Bernstein did his deposition, it was never confrontational or hostile, because Dr. Bernstein always began it by saying “Let us talk about the case we are studying together today.” And in the deposition, he would teach the case, basically. What conclusions did he reach? What drew him to those conclusions? What scientific literature supports his conclusions? And he would teach the case to us, as attorneys, as if he were teaching first-year medical students, really.
Phil: He’s probably the most-followed doctor in Northern California workers’ comp, certainly one of the most-respected, and it was always because of that approach. And what I learned from that is, sometimes I walk in to take depositions of doctors and they’re chewing their nails when I walk in. They’re ready to attack me. [funny voice] How dare me, a lawyer, ask a doctor a question! He is truth, he is god! He has an M.D. behind his name, so he knows everything!
John: [laughing] I get the picture, yeah.
Phil: He may know a great deal about medicine, but he might not know so much about workers’ comp law. And so really, all that makes me think, as a defense attorney, is why? Why, this doesn’t make sense. Why is he behaving that way? And so I always recommend to doctors that they remain kind, polite, that they teach the case, and that they understand that the lawyer is usually there because he or she has questions that were not addressed in the medical report. Let me say one final thing: I know that sometimes attorneys go in and their purpose is to try and get a doctor to change his opinion. Okay?
Phil: That happens, that happens all the time. In my experience, really good doctors, in their testimony, will say, “Based on the database of information I had, and the science I’m aware of, here are my conclusions. If there is data that I’m not aware of, if there is science I’m not aware of, I’m absolutely willing to change my conclusions, and if you have that, please present it to me now, and let me know what it is.” That simple. And often, good lawyers and good doctors, and when I say “good” I mean experienced, may end a deposition and say “We disagree.” Okay? And the reality is, if you sit down and have doctors talk to each other, you’ll actually find that they disagree all the time with each other.
John: Sure, mhm.
Phil: Over what causes things, and what relative contributions are, and other things. The one final thing I wanted to share with the issue of the subpoena that you talked about– And a lawyer has the right to send a subpoena to a doctor, and to compel that doctor to be present at a certain time and a certain place. It is an order of the court, essentially, that the doctor must present himself. Now, I’m gonna tell you the law, in dealing with that, and I’m gonna tell you the practicality. The law is that if the doctor does not want to present at that time or that place, he has to file a document called a motion to quash, to quash the deposition. The moment that motion is filed, the deposition is basically unscheduled. The moment the motion is filed, the deposition will not go forward until the court has made a determination on the motion to quash. And I always recommend that people try to resolve things without resorting to lawyers and legal papers, and they try and resolve things by talking to each other. And so for instance, in my career, I’ve practiced workers’ compensation law nearly 35 years. I’ve only subpoenaed a doctor for a deposition twice, in 35 years. And the only time I would do that is when I have called the doctor’s office multiple times, and I’m talking like 10 different times, to try and schedule the deposition, and the doctor wouldn’t respond to me. And when he wouldn’t, or his office wouldn’t, then I’d schedule him by subpoena. And the moment I sent that subpoena, suddenly my phone would ring, and the doctor is amenable to scheduling the deposition.
John: So Phil, walk us through this a little bit. The first step would be, if you wanted to depose a doc, the office would simply call and say “We need to schedule a deposition,” and it’s done that way, and then if there’s no response, a subpoena–
Phil: Exactly right. I would say to my secretary, “Karen, would you please schedule Dr. Alchemy’s deposition?”
Phil: And she’d call your nurse up and say “Hi Brenda, it’s Karen. We need to schedule Dr. Alchemy’s deposition.” And Brenda would say three things: “We have this day available, this time, and our fee for the deposition is this much money.” Okay? And Karen would say, “Okay, we’ll take that day, we’ll take that time, we’ll get the check sent to you before the deposition,” and then Karen, my secretary, would prepare a piece of paper called a notice of deposition, that would go out to everybody in the case, saying “We’re gonna depose Dr. Alchemy on this day, this time.”
John: Right, got it. Now the other question I have, Phil, is in this day of technology, can a doctor make themselves available but say “I’m available by FaceTime or tele-meeting, or a phone deposition?” I know you’ve done these before, but can they compel you–
John: Can they compel the doctor to show up in person? That’s the question.
Phil: It’s a little unclear, legally. First, let me answer the first part of the question. Can a deposition be done on Skype, telephone, using modern technology? Answer: yes. As long as a court reporter in California is able to swear the witness, and that can be done live, that can be done on the phone, that can be done on Skype. As long as that can be done, the deposition can be taken in that fashion. Okay?
Phil: Can an attorney compel a doctor to appear on a certain date and at a certain time? Technically, that is what a subpoena is.
Phil: It is an order to a doctor, compelling his appearance at a certain date and at a certain time. But in reality, if you’re ever dealing with that, all you do is, you pick up the phone, the doctor’s office does, to see if they can work out when and where the deposition is gonna be. If they can’t work it out with the attorney, they file a one-page document called a motion to quash, and I can guarantee you this: When a judge then hears that, he’s gonna say “Alright, little children. What’s the problem here?”
Phil: “Why haven’t you been able to work out where this deposition is going to occur?”One of the great things that I’ve noticed over the years with really skillful lawyers and doctors is this: They try and resolve problems, rather than battling with each other. Because battling tends to cost a lot of money, and you wind up, usually, just where you were at the beginning, and the judge forcing you to resolve it the same way you would’ve if you had just picked up the phone and tried to work it out yourselves.
John: Phil, you make it sound so easy.
Phil: [laughs] I would never, trust me John, I would never say workers’ comp is easy.
John: [laughs] Hey Phil, I wanna thank you so much for joining us today. And if we have some listeners – doctors, other attorneys, patients, listening to the podcast – how can they get a hold of you and get some quick answers, some straight answers?
Phil: Sure. The easiest way to get a hold of me is to email me at firstname.lastname@example.org. And that’s the fastest way to get to me, it will usually take me about 48 hours to get back to you, depending on what I’m working on. I always tell people I’m happy to help, and it is free. The reason for that is that usually, I’ve done workers’ comp now, it’s a long time, 33 years in California.
John: Wow. [laughs]
Phil: And so normally I can put my fingers on the answer in need, meaning either the section in the Labor Code that applies, or the, most of my questions are about the AMA Guides, and I can normally tell people exactly what page and what line they need to look at. And I can usually do that pretty quickly. So it is free, and as I always say, when was the last time a lawyer offered you something for free?
John: [laughs] And just to be clear, you’ve identified yourself as a defense attorney, but you’re happy to answer any types of questions from anyone’s side?
Phil: Oh, absolutely.
Phil: I am delighted to answer questions from lawyers, from doctors, I often answer questions as you can imagine, any time friends of mine have a workers’ comp problem or issue, they call me. So I even help injured workers and I help lots and lots of employers.
John: It’s that easy.
Phil: Well, it’s not that easy, but that’s what I do, and I truly, truly love what I do when I can help people.
John: Well, thanks again for joining us, Phil.
Phil: Thank you, it’s been my pleasure. Thanks for having me.
John: And you’ve been listening to the California Workers’ Comp Report, this is Dr. John Alchemy today with Phil Walker. If you’d like to learn more, please come visit us at rate-fast.com, and check out our Blog section. Thanks again.
Narrator: Thank you for joining us for this episode of the California Work Comp Report. We look forward to next week in continuing our discussion of work comp claims in California. Questions or comments? Got a great workers’ compensation story to share? Find us on Twitter at @ratefast or at rate-fast.com.