Vol. 85, No. 2, February 2012
by Jason Knutson & Guy DuBeau
Like much of society, the medical profession has a somewhat skewed view of what lawyers really do. That is to say, like many people, doctors1 typically do not seek out interactions with lawyers unless necessary. Some of their brushes with the legal system may not have been positive, for example, litigation over a noncompetition clause or a less-than-amicable divorce. Meanwhile, lawyers and doctors have to find ways to work together on personal injury cases.
There is, unfortunately, a perceived trend of doctors moving from being reluctant to assist in personal injury cases to unwilling. To some observers, it appears they avoid working with the plaintiffs’ bar to further their patients’ interests and avoid working with the defense bar by erecting barriers to discovery depositions. To others, they seem merely to be invoking their right not to be bothered against their will. Doctors occasionally come across to lawyers as annoyed with the entire legal profession or unduly arrogant. Nevertheless, with just a bit of understanding and effort, the doctor-lawyer relationship can be a productive one, and lawyers can do much to make this happen.
No doubt many lawyers who have been practicing for years have developed effective techniques for working with doctors on cases. This article provides some useful insights for lawyers still developing those relationships and reminds veteran attorneys that their approach can color the next doctor-lawyer relationship for better or for worse.
Why Doctors Don’t Like Lawyers
While some doctors are willing, ready, and able to cooperate in personal injury cases, others are not. Those who are unwilling, ill-prepared, or unable sometimes have good reasons for being that way. Some of the most common reasons doctors balk when a patient’s lawyer calls include the following:
Bad experiences with lawyers. Just like lawyers, doctors share war stories. Those include bad experiences with lawyers. Some doctors see lawyers as bullies. Lawyers second guess doctors’ medical decisions. Lawyers act like they know medicine. Lawyers paw through files and criticize curriculum vitas.
The unknown. Doctors often do not really understand how the legal system works and how they fit into it. This can be especially true for civil law cases. Depositions are unnatural and intimidating situations; trials, even more so. Sometimes a doctor’s initiation to the legal system is by being served with a subpoena in a case the doctor knows nothing about, with a commandment to appear at an appointed time or face a court’s wrath.
No time. Doctors are busy. Really busy. If lawyers are famous for being bombastic, doctors are famous for being late. Why are they late? Because they have too many patients, too many appointments, and too many things to do. Doctors barely have time to glance at patients’ charts as they walk into the examination room. They certainly do not feel like they have time to review an entire old chart, to prepare for questioning by a lawyer they do not know, about a patient they do not remember. The idea of having to reserve several hours for a long deposition or trial is almost incomprehensible to a doctor.
Webxtra Video: More from the authors: Why Doctors Avoid Lawyers
Authors Jason Knutson and Guy DuBeau discuss how to improve the doctor-lawyer relationship in personal injury or medical malpractice cases in the vidoes below. In part one, Knutson and DuBeau detail best practices for contacting a physician and finding information on medical issues. In part two, the authors discuss the information a lawyer should provide physicians, how to motivate doctors during a hearing, and how to build a working relationship with physician staff.
Join Guy DuBeau for insights in “Using Medical Records to Support Your Car Crash Case,” a State Bar PINNACLE™ live webcast program on March 28, 2012, from noon to 1 p.m.
See “Medical Cases: Asking the Right Questions,” a PINNACLE™ webcast program available for on-demand credit. Originally presented on July 28, 2011, the program features physician and attorney Thomas Leitner.
Fear. Doctors live in fear of HIPAA (privacy law) violations. They are constantly being reminded that disclosure of protected health information carries huge consequences. They are told not to discuss patients in the hallways or elevators. As a result, it is very unnerving for them to be asked to openly discuss a patient with a lawyer they probably have never met. Add to that the worry many doctors have that they are going to be the next target of a medical malpractice lawsuit, and it is no wonder they would rather not answer a lawyer’s call.
Disincentives. Lawyers know that most cases settle. Doctors know that, too. Sometimes they will simply stall, delay, and avoid scheduling in the hope a case will resolve on its own. Because most cases do settle, the doctor’s behavior is rewarded and reinforced. Being involved in personal injury cases not only consumes doctors’ time, it also can cost them money. Lawyers often complain about the seemingly outrageous charges for meeting with doctors on a case. Sometimes the amounts being charged really are tethered to reality. A surgeon working in the operating room is paid much more than a surgeon attending a deposition-preparation meeting.
Defense Counsel Need to Interact Effectively with Doctors
It is equally important for defense counsel to be able to interact effectively with doctors. They face all the same problems plaintiffs’ lawyers do, plus a couple more. Unlike plaintiffs’ counsel, who can and should be in regular touch with their clients’ treating physicians, defense counsel will encounter these physicians usually only once (at deposition) and possibly one more time (at trial). Not only is there is no personal relationship on which to ground the interaction but also they start out on opposite sides. Confrontation may feel unnatural to people who devote their lives to healing other human beings.
From counsel’s perspective, doctors are duty bound to give testimony, and are often paid well for testifying, whereas doctors do not think that they went to medical school for the purpose of being interrogated – sometimes aggressively – by a defense attorney. It is just as unpleasant for doctors as for anyone else to endure uncomfortable questioning, and if the interaction is not handled deftly, it can taint the substance of the testimony.
Stated alternatively, a basic appreciation of the process from the doctor’s perspective can make an enormous difference in what a defense attorney can accomplish during interactions with doctors. All the same observations outlined above still apply, but a few more should be considered before beginning the cross examination of a physician. There are good reasons why doctors sometimes would rather work with the plaintiffs’ bar than the defense bar, and the defense bar just needs to adapt to that reality and let a few basic premises guide the approach.
Doctors’ statements may be challenged. Whereas plaintiff’s counsel wants to support what the doctor has to say, often defense counsel wants to challenge it. The first thing competent plaintiff’s counsel does when screening a case after meeting the potential client is to review the medical records. If he or she has taken the case, it is because something in the records seems to support the claim. The doctor who created the record will be invested in the conclusions reached and will defend his or her prior observations. The doctor knows that defense counsel wants to poke holes in these conclusions. A doctor will always know more about the science of medicine than will the attorney, and so if the doctor thinks she is being unfairly challenged on a medical point, the attorney will lose the battle.
Doctors have established a relationship with their patients.Doctors, for the most part, really do have or have had a personal relationship at some level with their patient. That is okay. From a societal point of view, we want health-care professionals to care for their patients as people. The plaintiff starts with a leg up in the relationship. Doctors may not have a vested interest in the outcome of litigation but after helping patients with their medical issues, it would be counterintuitive for the doctors to turn on the patients.
Doctors have specialized training. Doctors know a lot of medicine and have been exposed to almost all practice areas during their residencies. That does not mean that they want to be held out as experts on all things medical. Injury litigators were required to take trust and estate classes; orthopedists had a cardiology rotation. You get the picture. Doctors are as inherently reluctant to step outside of their comfort zones as most attorneys are. The problem is that many plaintiffs’ attorneys do not want to have to retain (and pay) every single doctor who treated a patient in a complex case, and so the doctors tapped to testify often are asked and feel pressure to go a bit beyond their own expertise. Before sitting down to be deposed by defense counsel, doctors know they are going to be put on the spot about something they would rather avoid. That is not a good place to start.
Doctors may have received some advice on their rights. As discussed below, doctors have a qualified privilege not to give expert opinions. It is not uncommon for physicians to have been briefed on that privilege by their employer’s in-house counsel before a deposition. That privilege, however, is nuanced and not necessarily easy for even trained legal professionals to understand in all contexts. Doctors will not necessarily know what they should or should not be saying and will inevitably err on the side of caution.
is is not a complete list of all the reasons doctors hesitate to cooperate or even participate in personal injury cases. However, this short list does reveal that working with an attorney in a patient’s case costs doctors money, requires time that is not available, and generally is no fun at all. It is no wonder some doctors groan when they discover a patient’s injury stems from an accident.
What the Law Requires and Allows
As a general rule, doctors in Wisconsin have a broad qualified privilege that allows them to refuse to provide expert testimony. This is commonly called the “Alt privilege,” in reference to the case in which the privilege was constructed.2 Alt essentially stands for the proposition that absent a showing of compelling circumstances by the person seeking the testimony, a doctor cannot be compelled to give expert testimony. Importantly, Alt does not shield a doctor from being compelled to give fact testimony – like any other competent witness. In other words, doctors can be compelled to give testimony about their actions and observations as a health-care provider.3
The difference between expert testimony and fact testimony can sometimes be unclear to doctors and to the lawyers working with them. Simply put, expert testimony requires scientific, technical, or other specialized knowledge that is not within the scope of ordinary training or intelligence. It would seem that all doctors are experts based solely on their qualifications. The substance of the testimony is the key in determining whether it is expert testimony or is fact driven. If doctors are asked to provide testimony about their own decisions and actions, it is factual testimony. If doctors are asked to testify about how a reasonable doctor would have dealt with a certain medical situation, or whether the prevailing standard of care was met, they are being asked to give expert opinions subject to Alt. The Alt privilege is waived if a doctor gives some expert testimony in response to some questions, even if the doctor refuses to give expert testimony in other areas. Wisconsin law, while not unique in this area, is also not universal. In Illinois, for example, a treating doctor must give an expert opinion if it was developed as part of treating the personal injury plaintiff.4
Jason Knutson, U.W. 2000, is a shareholder at Habush Habush & Rottier S.C., Madison. His practice focuses on personal injury litigation, medical malpractice, and products liability. He is also an adjunct professor at the U.W. Law School, where he teaches courses in trial advocacy and negotiation. Reach him at com jknutson habush habush jknutson com.
Guy DuBeau, U.W. 1991, is a partner at Axley Brynelson LLP, Madison. His practice focuses primarily on medical malpractice, personal injury, and product liability defense. He also advises a wide variety of health-care professionals on regulatory and compliance issues. Reach him at com gdubeau axley axley gdubeau com.
Once doctors are engaged in litigation, they are entitled to be compensated for the time spent working on litigation-related matters. This includes time to prepare, research, meet with counsel, and testify. This is true whether the doctor is providing testimony voluntarily or is being compelled to testify.
Doctors, like anyone else in Wisconsin, must comply with a subpoena to testify if properly served.5 Failure to comply can lead to a contempt hearing, which could eventually result in a fine or even imprisonment. Doctors must also comply with a subpoena duces tecum requiring the doctor to bring documents or other evidence with her.6 This typically takes the form of medical records and diagnostic imaging scans. A doctor can release medical records only with a signed authorization by the patient or in response to a court order. Doctors are entitled to rely on a subpoena issued in Wisconsin in lieu of an authorization to discuss a patient’s care.7
When a doctor is served with a subpoena, it is usually delivered to the legal department at the health-care facility. The custodian of records then determines if the needed authorizations are in place and either forwards copies of medical records on the doctor’s behalf directly to the requesting party or to the doctor. Doctors typically are advised to review only those records resulting from the care they provided.
Techniques for Improving the Doctor-Lawyer Relationship
None of the obstacles between treating doctors and personal injury lawyers are insurmountable. Overcoming them does, however, require some effort and foresight on the part of lawyers. Every doctor and every situation will be different, but most of the time, the following suggestions can help lure a doctor out of hiding from litigation and foster cooperation.
Tips for Plaintiff’s Lawyers
1) Communicate early and often. As busy as doctors are, they appreciate knowing the status of potential cases. Take a few minutes to call the treating doctor in your client’s case to introduce yourself and tell the doctor what you expect will happen. Leave a voicemail every few months with an update. Let the doctor know if a case is going to court. Let the doctor know if she will be named as an expert witness and what that means. Talk to the doctor about the legal standards involved in the case. Do not be a pest, but do answer questions and anticipate problems.
2) Respect the doctor’s schedule and time.Whenever possible, schedule phone calls and meetings around the doctor’s schedule. This can be inconvenient, annoying, and irritating, but it is also essential to forging a good relationship with the doctor. The five minutes before the clinic opens or closes might be the only time a doctor has time to talk to you about a case. You may also have to be on hold until a doctor gets a break between patients.
Likewise, make sure you never exceed the time set aside for an appointment. If you have reserved 20 minutes for deposition preparation, do not take 30 minutes. Remember that the doctor likely has patients waiting, and the extra 10 minutes you use could make the doctor late for the rest of the appointments stacked up that day.
3) Do some of the work for the doctor. Doctors hate getting a stack of past medical records on a patient they do not remember, from an attorney they do not know, in preparation for a meeting they do not want to attend. Whenever possible, send a medical records summary, or at a minimum a cover letter highlighting important treatment dates or issues in a case. You can also tab or flag significant medical records so that the doctor does not have to spend time searching for them. A timeline of treatment – especially of this particular doctor’s involvement – is useful. If diagnostic images and medical literature are part of the case, provide those to the doctor as well.
In short, give the doctor everything she needs to be prepared for a meeting or deposition, and everything she needs to feel prepared for a meeting or deposition. This may include prior medical records from other health-care providers or depositions from other doctors involved in the case. Whatever you provide needs to arrive under a cover letter explaining what it is and what the doctor should do with it, and be in a format that can be easily and quickly accessed by the doctor.
4) Motivate the doctor. Instead of telling a treating doctor that she “has to” testify in a case, let her know that you “need her help” presenting the medical issues in the case. Doctors are comfortable acting as educators. They spend a large part of their days explaining medical concepts to patients or medical students. They are willing to do the same thing with lawyers – when the lawyers are willing to listen. Likewise, doctors can be strong advocates for their patients once they understand the issues driving a case. When a plaintiff’s attorney explains that the reason the doctor’s time is being taken in a case is because the lawyer on the other side is convinced the patient was getting excessive medical treatment for an unrelated injury, most doctors are willing to defend their diagnoses and treatment plans.
5) Follow up when the case is resolved. If you have done a good job communicating with a treating doctor, then your client’s file will be sitting somewhere in the doctor’s office while the case is pending. When the case is resolved, let the doctor know, thank her for her help, and let her know that she can re-file the chart. Just like lawyers, doctors are relieved when one more pile can be cleared off their desks. Take a moment to thank a treating doctor for her help both with her treatment of the patient and her cooperation in the case. Explain how the doctor’s efforts made a difference in getting the case resolved, and answer any questions the doctor may have about the process. You may be surprised how many doctors look for some reassurance that they did a good job at deposition or that they presented well at trial.
Tips for Defense Lawyers
1) Be genuinely courteous. Most litigators are at least able, if not naturally inclined, to be a bit scrappy and are used to dealing with each other in that fashion. Doctors are caring healers; what may be a typical affect in dealing with another attorney may be perceived as unduly argumentative or aggressive by a doctor. Yes, the doctor and the plaintiff’s attorney have spoken about the case, but this does not mean that the doctor is in cahoots with the adversary for some nefarious end. Yes, he may have been prompted to remember to articulate those observations and aspects of his care that are most helpful to the plaintiff’s case, but that is just plaintiff’s counsel doing his or her job. Respect that that is what has occurred and that it is okay that it occurred. Avoid behaving in a hostile manner, because the more it seems you are expressing hostility to the doctor, the more intransigent and well-articulated the doctor’s opinions are likely to become. The antidote is to respectfully tease out of the physician opinions that support your perspective.
2) Know the medicine underlying the issues you are there to discuss. Rarely is it sufficient for any but the most experienced personal injury attorney to only read the medical records to understand the medicine. If you really want to challenge a medical opinion you believe you are going to hear from a treating physician, then you have to do the leg work up front. Defense counsel can have access to their own physician consultants, who can do more than just perform independent medical examinations. Take the time to educate yourself, and you will find that medicine, like law, has far more gray areas than black and white. Most physicians are collaborative by nature and willing to have a discussion on an issue if it is an informed discussion. They do not want to have to spend their limited time teaching you about something you really ought to already know, especially if you are coming in there to challenge them.
3) Know the patient’s medical history. If you are there to challenge what a doctor has to say, make it easy for the doctor to understand why you think that way. It is not necessarily effective to try to play “gotcha” with a doctor, because the doctor is not even playing the same game you are. If the doctor has concluded that an ongoing low-back soft-tissue complaint is related to an accident, the doctor may genuinely not know about the 48 preceding chiropractic treatments. That is not his or her fault. Just as plaintiff’s counsel should make it easy for the doctor to find and identify things that support the plaintiff’s case, defense counsel must be prepared to do the same thing in support of the defendant’s case. Have the records tagged and easily accessible and see what the doctor actually knows about the patient. This furthers having an informed discussion with the doctor, which is what will ultimately make the interaction more fruitful.
Doctors and lawyers are always going to interact in personal injury cases. The simplest way to reverse the trend of doctors’ distaste for those interactions is by making them more positive experiences for the doctors. Every contact you have with a doctor on a case has the potential to become the next lawyer story that doctor tells to a colleague. The more positive stories lawyers are able to coauthor with doctors, the better all of our ongoing relationships with doctors will be.
1 Although not all “doctors” are “physicians,” the title doctor is used throughout this article to refer to health-care providers generically.
2 Burnett v. Alt, 224 Wis. 2d 72, 589 N.W.2d 21 (1999).
3 Carney-Hayes v. Northwest Wis. Home Care Inc., 2005 WI 118, 284 Wis. 2d 56, 699 N.W.2d 524.
4 Fawcett v. Reinertsen, 546 N.E.2d 558 (Ill. 1989).
5 Wis. Stat. § 905.01.
6 Wis. Stat. § 805.07.
7 45 C.F.R. § 164.512(e).