justice scale justice scale justice scale

McKenna Minutes

“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

Is Deposing a Plaintiff’s Treating Physicians Worth it?

-
Is Deposing a Plaintiff’s Treating Physicians Worth it?

Plaintiff’s 213F disclosures will contain the treating physicians that plaintiff intends to call at trial. These “treaters” are the physicians who treated the plaintiff for his alleged injuries. These can range from emergency room physicians, primary care doctors, chiropractors, surgeons, pain doctors and physical therapists. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Adding attorneys’ fees and costs for these depositions, they might end up costing more than the value of the case, depending on how many are disclosed. This analysis can be seen in most soft tissue cases. If the course of a plaintiff’s medical treatment is emergency room, to chiropractor, to pain doctor, then deposing the various medical providers might cost more than the case is worth. Is deposing a plaintiff’s treating physicians worth it for the defense attorney? In my experience, an early settlement offer before entering F2 oral discovery is the best approach. Let’s discuss why.

How Does Deposing a Plaintiff’s Treaters Work?

Before entering this phase of oral discovery, the defense attorney will have all of the records for the treaters. These records are instrumental to whether a treater’s deposition is even warranted. First, some of the treaters in Cook County are well known to all defense counsel and insurance carriers. Deposing these well known, flagged, treaters would simply increase litigation costs and not accomplish anything for defense counsel. The treater is going to testify that the occurrence caused the injury, that there was no pre-existing injury and the injury is permanent.

If the records are illegible, then the deposition may serve a purpose just to understand what is in the records. If the records are legible, then they may not warrant a deposition. If the treater’s records are detailed with complaints, recommendations and causation, then deposing that treater just to read back his records is not useful. Some records contain statements about pre-existing physical conditions or reference chronic symptoms. Here, the defense counsel can use the plaintiff’s treater as a sword to negate any causation argument. However, the plaintiff can use the treater to obtain aggravation or exacerbation testimony. Some treaters will testify that they cannot answer how the accident affected the pre-existing injury, which is useful to defense counsel.

One treater that is normally deposed is the surgeon. The surgeon’s testimony will be crucial to a plaintiff’s claim for causation and damages. The surgeon is also the treater who will give any future medical treatment testimony or opine to future surgeries. I have deposed various surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment. I have also been surprised by a surgeon that would not give causation testimony and would testify that no future surgeries would be warranted. Surgeons are expensive to depose, but they are probably the star causation witness for a plaintiff.

So, Is Deposing Treaters Worth it or a Waste of Money?

In conclusion, 213F(2) oral discovery is a costly endeavor. Deposing a plaintiff’s treaters should be on a case by case basis. A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. If the case value warrants treater depositions, then the next step is to review those treaters’ records to ascertain if any favorable testimony is anticipated. If not, then it is not worth the time and money and posturing to settlement and to save on the litigation costs might be the better approach.

Contact Alex Sweis at McKenna Storer about this article or any questions relating to Insurance Defense.

Categories General Litigation



Here to help with whatever your legal issues may be, schedule your no-obligation consultation or Simply Call us at.
(815) 334-9694

Please do not send confidential information via email. The sending of information by you, and the receipt of it by McKenna Storer, is not intended to, and does not create a lawyer-client relationship.

Privacy Policy | Sitemap © 2019 McKenna Storer
Show Buttons
Hide Buttons