Plaintiff and defense attorneys employ opposing tactics to make the most of outside opinion
A medical examiner’s testimony can be the turning point in many cases, but how and whether to employ MEs depends on which side of the table you’re sitting.
Take their testimony: is it an “independent” medical examination or a “defense” medical examination? The answer often depends on whether an attorney represents plaintiffs or defendants.
On the defense side, the use of medical examiners is on the decline, said attorney Emile Banks, of Emile Banks & Associates LLC, Milwaukee.
“If anything, I’m doing fewer of them than I used to,” he said, “and I look for ways to avoid them if possible.”
That’s true within his firm and with many of his defense-bar colleagues, Banks said.
But veteran Madison plaintiff lawyer Mike Riley, of Axley Brynelson LLP, said, from his perspective, “the growth of the IME industry has been shocking.”
“We used to see IMEs in one case out of 20,” he said. “Now we see them in probably a third or even a half our cases.”
Although they differ in their views on the necessity of IMEs, both sides have developed strategies on how to use them to their clients’ best advantage.
The plaintiff perspective
Brookfield plaintiffs’ lawyer Frank Pasternak said he started by performing an exhaustive Internet search of the physicians used in his cases. He looks for scholarly articles, marketing websites and LinkedIn connections, for example.
In addition, the Pasternak & Zirgibel SC attorney often taps other plaintiff lawyers for prior reports, or deposition or cross-examination transcripts from the witness.
Sometimes, Pasternak said, he’ll learn that a physician has a reputation for becoming argumentative when deposed. If so, he’ll videotape the person’s deposition to memorialize that emotion for the jury or simply to defuse it.
La Crosse lawyer Mike Ablan said he liked to script his cross-examination questions beforehand.
“When you prepare it,” he advised, “give yourself some wiggle room to adjust to the movement of the trial, but not too much.”
The best way to stay on track is to avoid open-ended questions, he said.
“Never let them answer with anything other than ‘yes’ or ‘no,’ no matter what,” said Ablan, of Michael Ablan Law Firm LLC. “You have to contain them.
“They might say, ‘I need to explain to answer this correctly.’ You have to respond, ‘I’m not asking you to do that. I’m asking you to answer ‘yes’ or ‘no.’”
Another strategy is to ask how much compensation the physician annually earns for litigation-related work, and what his or her percentage of work is for plaintiffs versus defendants.
Pasternak said he often subpoenas the physician’s 1099s from all insurance companies or law firms, as well as any documents regarding how that person has been hired.
“These physicians can earn millions doing this over a few years,” Ablan said. “Some stop treating patients altogether to do medical/legal work exclusively.”
In a recent case, for example, Ablan elicited testimony from a physician who entirely works for defendants. He earns $750 to evaluate a plaintiff and $4,000 to testify in court or give a deposition. By many jurors’ standards, that’s big money. It’s even more damaging if the physician has an open account with the defendant’s law firm.
Riley tries to head off potential issues by asking how many court-related examinations a physician has performed, he said, and in how many of them the doctor concluded a plaintiff’s care wasn’t excessive or that the care was unrelated to the accident, for example.
Unless the physician concedes that he or she tends to reach similar conclusions on all cases — a rarity — Riley then introduces the witness’ prior, redacted reports, produced voluntarily through discovery or subpoenaed.
“The reports tend to be very cookie-cutter,” he said. “You could just change the names and pump them out of a Xerox machine. It can be very persuasive when you can show the jury that the last 20 reports this person wrote were all the same.”
Sometimes the physician’s report will be addressed directly to defense counsel, Ablan said, which he makes sure to point out. He then goes through the report, line by line, to identify any contradictions and opinions that are omitted.
Riley tends to ask the physician to list the array of possible causes for a plaintiff’s injury. Then he asks, “Are you positive that the one thing that’s not responsible for the injury is this accident?” Often, the person can’t definitively say “yes” in response, he said.
The defense perspective
Step one, said Mike Gill, a partner with Hale, Skemp, Hanson, Skemp & Sleik in La Crosse and president of the Wisconsin Defense Counsel, is to determine whether a medical examination is necessary to the defense.
To do so, he thoroughly reviews the treaters’ records, and if there’s evidence that one or more might be a favorable defense witness, he’ll depose them for greater detail. That can suffice.
Occasionally the medical records suggest that a plaintiff was referred to a physician by a lawyer, and that can weaken the claim, too, he said.
If, however, an examination is warranted, Gill carefully selects the doctor. He looks for someone who principally treats patients in addition to a relatively small litigation-related practice — just 5 to 10 percent of his or her work.
Milwaukee lawyer Pat Brennan, of Crivello Carlson SC, agreed and said he looked for someone who had worked for plaintiffs and defendants.
Academics can be very effective witnesses, Banks said, because they can “teach” the jury and they’re generally perceived as objective.
“I always emphasize that I want a really truthful answer because I don’t want to prevent someone from getting compensation they might deserve,” he said. “But on the same token, I don’t want them to get more than they deserve. So I always emphasize with the doctor that I want an objective and truthful opinion.”
Witness preparation is crucial on the defense side, as well, Gill said. When a defense expert is prepared and expecting questions about compensation, that person will be ready and stay focused, he said.
Brennan said he worked to neutralize compensation arguments by determining how much the plaintiff’s treaters and evaluators were earning for their work on the case. Often, the sums are similar, he said.
“Whether you’re talking about an IME or a surgeon, they get paid enormous amounts of money,” Gill said. “So you can ask the IME physician, ‘How much do you charge for your services if you weren’t doing this exam?’ In many instances, they can say, ‘If I were performing surgery, I’d be charging more.’”
While there are some defense physicians who don’t do much treating of patients, he said, there are plenty who do a sizeable amount of medical and legal work for plaintiffs, and it’s fair game to bring that to the jury’s attention.
Brennan recommended objecting to recording the examinations and the use of prior reports or deposition testimony from other cases.
And when there’s a mix of objective evidence and subjective complaints, Brennan said highlighting the former always was smart — in addition to emphasizing the defense doctor’s credentials, and that he or she followed the proper protocols in performing the examination and forming the opinion.
It’s important for defense counsel to remember, Brennan said, that the independent medical examiner sees the big picture.
“The IME doctor is always given the records of every other physician, and an individual treating doctor does not have that perspective,” he said. “So in that sense, we can portray the IME doctor as being in a better overall position, having spent sometimes many, many hours reviewing all the charts.”