Deposing Doctors and Medical Experts

The second in a series of articles on basic strategies for questioning commonly encountered witnesses in civil litigation. This week: the treating physician.

The treating physician sits at the center of nearly every personal injury case. Without the physician’s testimony, the factfinder has no credible link between an accident and the injuries claimed. That reality makes the physician deposition one of the highest-stakes events in pretrial discovery.

Every medical opinion rests on some mixture of objective data and subjective reports — and forcing the physician to separate the two on the record is the hinge on which many injury cases turn.

First Clarify the Doctor’s Role

Federal Rule of Civil Procedure 26(a)(2)(C) draws a sharp line between a retained expert, who must submit a full written report, and a “hybrid” witness, such as a treating physician, who offers both fact testimony and opinions drawn from specialized knowledge. Opposing counsel often blurs that line at trial. Pin it down at the outset of the deposition. Ask: How did you learn about this lawsuit? How many conversations have you had with opposing counsel outside of patient care? Have you been paid anything beyond treatment bills? What written materials has counsel sent you? What did you do to prepare for today’s deposition? The answers reveal whether the doctor has slid from treating physician into party advocate — and whether a full report should have been produced under Rule 26(a)(2)(B).

Mark the Chart and the Report as Exhibits

Penn State Dickinson Law professor Gary S. Gildin, in An Updated Practical Guide to Taking and Defending Depositions, emphasizes a discipline that matters more in the physician deposition than almost anywhere else: every document the witness will testify about should be marked as a numbered exhibit before questioning begins. The chart, the imaging studies, the billing records, the doctor’s curriculum vitae, any written narrative report — each gets its own exhibit number, and every question references the document by that number. Without that discipline, the doctor can later claim the chart shown at trial is not the one reviewed at the deposition. Mark first; question second. If the deposition will be conducted remotely, practice introducing and using exhibits in advance, and strongly consider bringing in an assistant to help out with exhibit handling.

Use the Three Modes of Questioning

Gildin identifies three distinct modes of questioning the deposing lawyer must consciously toggle among, and each has a specific role in the physician deposition.

The first is the nabla — an inverted triangle that handcuffs the witness on a discrete topic. Build one for every opinion the doctor will offer at trial. Open with “Tell me every basis for your opinion that the disc herniation was caused by the collision.” Follow with “Anything else?” until the doctor says no. Close with “Have you now told me every basis for that opinion?” Repeat for diagnosis, treatment plan, prognosis, and any restrictions. The transcript then locks the doctor out of supplying new bases at trial.

The second is admissions testing with single-fact leading questions. Use it to extract the concessions that soften damage claims. Did the doctor place a lifting restriction in the chart? Did the doctor place a restriction on driving? Which symptoms were self-reported by the patient? Did the imaging study show degenerative changes pre-dating the incident? Each fact, asked alone, produces a clean yes — and bundling facts gives the witness room to evade.

The third is surfing for nablas — open-ended questions that invite narrative and surface previously undisclosed opinions or reliance materials.

Confront Selective Memory With the McElhaney Menu

Treating physicians sometimes default to “I don’t recall” when an answer would help the defense. Gildin endorses Prof. James McElhaney’s follow-up menu for the evasive witness: Did you once know the answer? Whom did you tell? Is there anything that might help you remember? Could you have written a memo about this? What documents might have this information? Who else might know the answer? If you had to find the answer to this question tomorrow, where would you look? Each follow-up either produces the fact or shuts the door on a “refreshed” recollection at trial.

Separate Objective Findings from Subjective Reporting

Every medical opinion rests on some mixture of objective data — MRI results, range-of-motion measurements, nerve conduction studies — and subjective reports such as the patient’s description of pain or symptom history. Make the witness separate the two on the record, opinion by opinion. When causation rests mainly on what the injured party said at intake, the defense can attack that person’s credibility without attacking the doctor’s competence. This distinction is the hinge on which many injury cases turn.

Expose Assumptions and Inconsistencies

Doctors routinely accept the patient’s account of the accident, the prior medical history, and the onset of symptoms without independent verification. When those accounts contradict employment records, pharmacy histories, earlier emergency-room intake forms, or deposition testimony from the injured party, the physician’s opinion weakens. Confront the witness directly with the contrary documents — each marked as a numbered exhibit — and demand a response on the record.

Close Carefully

Before ending the deposition, build a final nabla on the doctor’s overall analytical work. Confirm three things on the record:

1. The file produced matches the original file at the doctor’s office.
2. Every opinion has been disclosed.
3. The witness anticipates no further analytical work on the case. If additional work will occur, leave the record open and schedule a continuation.

Ideally, the physician deposition should conclude only when every opinion is captured in writing. Be sure to separate the doctor’s objective findings from subjective information that may have been self-reported by the patient. Highlight any inconsistencies in the doctor’s testimony and be sure to expose each assumption the doctor relied on in reaching his or her opinion regarding the patient’s injuries.