sense, and to be “fair” to the defendant in determining what they are truly responsible for. Attorney Referral to Treating Doctor: Clients are not im-
mune to the health care crisis and the number of uninsured in this country. In a significant number of cases one will be faced with the dilemma of finding a health care provider to treat the client if they have no health insurance coverage and/ or don’t have a family doctor. If this is done, one must prepare the client to articulate a reason for why they chose their treat- ing doctor. The reason must be repeated in deposition, at the exam of the defense medical doctor, and at trial. If there is no explanation offered, it is a gift for the defense. The explanation to the jury must be reasonable, seem personally responsible, and be consistent with the life experiences of the jurors. It is suggested to provide the client with a list of doctors and
options for care that are geographically desirable, either to their home or place of work (if they are working). The list should be designated as an attorney-client communication and should be discussed with the client in person, or by telephone. The client should be able to explain that they had no doctor of their own, they were given a list of specialists to choose from and they wanted to go to a place that was close to home or work because of transportation concerns and/or to minimize the possibility of missing appointments. If the client was referred to a doctor in the discharge documents from the Hospital’s Emergency Department, then he or she must explain they didn’t know that doctor and decided to choose one that was closer to their home or place of work. If they have a family doctor, tell the client to see them and ask for a list of specialists to which they can be referred. If the client, or their family member, was previously treated by an orthopedic surgeon or some other health care provider for muscle or joint problems, suggest that the client return to that office for treatment or a referral. Excessive Charges: The medical expert must be prepared to
justify the treatment plan and the charges for the care received. As for the latter, and if the amount charged is being challenged, the expert should testify to what the CPT codes are and that the doctors charges are within the standards in the industry. If x-rays were ordered during the initial clinical visit, the ortho- pedic expert must explain that the standard of care required that they take duplicative x-rays since they, not radiologists, specialize in diseases and conditions of the musculoskeletal system, and that they may see something clinically relevant that the hospital radiologist missed. Excessive Care: The medical expert must explain the type
of care prescribed, why it was prescribed, and the goals of the treatment plan. If the orthopedic expert prescribed a lengthy course of physical therapy, consider calling the physical thera- pist to provide expert testimony. These hands-on witnesses are trained to educate patients on the type of modalities be- ing employed, the goals of the care and the reasons for the length of care. They usually have detailed notes regarding the plaintiff ’s physical condition when they began treatment, the degree of pain and difficulty, and their diminished function.
Winter 2009 Trial Reporter 11
They are usually great educators in the courtroom and virtu- ally untouchable on cross-examination. Physical therapists are often willing to testify for little or no compensation at all. Gaps: The so called “gaps” in care argument must be turned
around on defense counsel by re-framing the debate. The at- torney must prepare the client to explain any significant period of time when they were not receiving medical care and for them to repeat their explanation at least four times: to their doctor in any subsequent doctors visits, in their deposition, at the time of the Defense Medical Exam (DME), and at trial. Reasonable explanations for the gaps in the client’s care could be articulated as either a time period when the plaintiff was feeling better and hoping they were on the road to recovery, a time period when the plaintiff was living with the pain and trying to move on with life, or due to the plaintiff ’s concerns about the mounting medical expenses. The plaintiff must explain that the physical pain and impairment did not go away, and that therefore, they needed to return for additional medical care. As Ball points out, juries like “strivers and survivors, not whiners and quitters.” Counsel must present a picture of a plaintiff struggling to get back to their life as it was before, and only seeking additional care when it became absolutely necessary. Again, consider using additional treating experts if it is
perceives that the main treating doctor, the person directing the care, is vulnerable to cross-examination on these issues. For example, the defense may argue that the treating doctor, “a plaintiff attorney’s doctor,” has an enormous bill and will
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