The Physician

• Author: Michael J. Morse
• Pages: 409-440

CHAPTER 7

The Physician

I. Introduction

§ 7:10 Role of the Physician

§ 7:20 Establishing Rapport

§ 7:30 Gaining Physician Confidence

§ 7:31 Chart of Certification and Board Specialties

§ 7:32 Checklist of Medical Specialties

II. Communicating with Treating Physicians

A. Plaintiff Contact

§ 7:40 Introduction

§ 7:50 Letters

§ 7:50.10 Introduction

§ 7:60 Forms

§ 7:60.10 Introduction

§ 7:60.20 Sample Work Restriction Evaluation Form

§ 7:70 Interviews

§ 7:70.10 Introduction

§ 7:70.20 Initial Interview

§ 7:70.30 Interim Interviews

§ 7:70.40 Final Preparatory Interview

B. Defense Contact

§ 7:80 Introduction

§ 7:90 Federal Courts

§ 7:100 State Law Prohibiting Ex Parte Contact

§ 7:110 State Law Allowing Ex Parte Contact

III. Medical Reports and Records

A. Introduction

§ 7:120 Reports vs. Records

§ 7:130 Computerized Records

§ 7:140 In Practice: Obtaining Effective Documentation of Injury

§ 7:140.1 Form: Request for Narrative Report

§ 7:140.2 Form: Affidavit of Treating Physician

§ 7:140.3 Form: Deposition Questions for Client’s Treating

Doctor

LITIGATING NECK AND BACK INJURIES

n

7-2

B. Physician Office Records

§ 7:150 Overview

§ 7:160 Legibility and Comprehensiveness

§ 7:170 Medical History

§ 7:180 Symptom Review

§ 7:190 Examination

§ 7:200 Diagnosis

§ 7:210 Prognosis

C. Hospital Records

§ 7:220 Overview

§ 7:230 Admission Chart

§ 7:240 Vital Sign Sheets

§ 7:250 Doctor’s Order Sheet

§ 7:260 Nurse’s Notes

§ 7:270 Progress Notes

§ 7:280 Consultations

§ 7:290 Laboratory Reports

§ 7:300 Physiotherapy Reports

§ 7:310 Discharge Summary

D. Using Medical Records

§ 7:320 Reading and Interpreting

§ 7:330 Cataloging

§ 7:340 Postaccident Negative Findings

§ 7:350 Inconsistencies

§ 7:360 Documenting Pain and Suffering

§ 7:361 Medical Summaries

§ 7:370 Inferring Missing Information

§ 7:371 Altered and Lost Medical Records

IV. Physician Expert Witness

§ 7:380 Introduction

§ 7:390 Communicating with Expert Physician

§ 7:391 Deposing Physicians

V. Checklist

§ 7:400 Chapter Checklist

n THE PHYSICIAN

§ 7:20

7-3

I. Introduction

§ 7:10 Role of the Physician

Rare is the neck or back injury case that can be

litigated without the involvement of at least one

physician. Indeed, the physician will generally

be one of the more significant witnesses avail-

able to either side. Accordingly, it is important

to establish and maintain a good working rela-

tionship with any physicians from the outset.

This requires two steps: first you must give the

physician a simple understanding of the litiga-

tion process, and second you must develop a

basic understanding of the practices of most

medical professionals.

Plaintiff’s attorney should involve an appropri-

ate and skilled physician in the case at the

earliest available time. This may be difficult, as

it is not uncommon for a plaintiff to commence

treatment with a family physician, chiropractor

or other nonspecialist long before consulting an

attorney. In this event, it is important to obtain

a consultation from an orthopedic surgeon or

neurosurgeon as soon as possible. The special-

ist should carefully review the records, findings,

and studies generated by the initial treating

physician. Never ignore the initial treating phy-

sician, however, who will still be an important

participant in the litigation process.

The defense will have to approach this issue

from a different perspective. It is not always

possible or advisable to obtain an impartial

examination of the plaintiff by a defense expert.

Accordingly, the defense is usually relegated to

cross-examining plaintiff’s expert and perhaps

presenting a nonexamining witness in rebuttal.

If the defense does obtain an impartial exami-

nation, however, its expert witness should be

carefully selected and the examination sched-

uled for an appropriate time consistent with

the defense theory of the case. The defense

should also consider obtaining multiple impar-

tial examinations, which allows the defense

expert to observe the healing process and

avoids plaintiff counsel’s argument that the

witness examined the plaintiff on a “good day.”

§ 7:20 Establishing Rapport

Establishing a solid rapport with the physician

requires the attorney to orient the physician

to the litigation process at the earliest possible

time. Candidly disclosing at the outset the

demands which this process will place on the

physician’s time will negate resentment and

avoid problems at a later and perhaps critical

point in the proceedings. Clearly outline special

reporting requirements (e.g., forwarding copies

of office notes or preparing summary reports);

special attention required during follow-up

office visits (e.g., obtaining detailed intervening

histories, performing complete examinations,

commenting on patient’s ability to work, etc.);

the frequency and duration of anticipated peri-

odic consultations with the legal team; research

into standard references for the medical prin-

ciples involved in the particular case; and,

of course, the demands of giving testimony.

Complete disclosure helps to avoid surprises

and should make everyone’s job easier by mak-

ing the physician feel like part of the team.

Establishing a rapport with the physician

requires that you understand the practices

of the medical profession in general, as well

as those of the particular physician at issue.

Here are some general things to keep in mind

[see also Schwartz, “Establishing Rapport with

the Medical Expert,” 3 TRIAL DIPLOMACY J. 45

(1980); McGugin, “Preparation of the Physician

for Trial,” in LEGAL MEDICINE 63 (Urban &

Schwarzenberg)]:

• Many physicians follow a fairly regular sched-

ule, so a copy of the physician’s schedule can

help identify when the doctor is most likely to

be available.

• Physicians involved in neck, back and soft

tissue injury cases are often surgeons.

Surgeons typically schedule surgery on two

or three days per week, usually commencing

early in the morning. Additionally, on the

days devoted to office visits, the early morn-

ing hours are typically spent conducting hos-

pital rounds. Accordingly, surgeons rarely

have free morning time available to devote to

litigation.

• Physicians who testify often (in workers’

compensation proceedings, social security

proceedings, etc.) frequently have a specific

time each week dedicated to litigation. If you

learn this early in your association, you will

avoid frustration and facilitate cooperation.

• A physician will generally recognize and

appreciate any efforts to conserve the

physician’s time, particularly since most

physicians believe that they are far busier

than any lawyer. Some proven time savers