Trial Magazine

Deposing a plaintiff’s treating physicians is critical to building and presenting a successful case. Treating physicians possess unique, firsthand knowledge of the plaintiff’s medical history, condition, and treatment that can make or break a case. Taking a proper approach in these depositions can help establish causation, the severity of your client’s injuries, the impact on their life, and occasionally even negligence.

Treating physicians also play a distinctive role in the plaintiff’s case. They are often perceived as more credible and objective witnesses than retained experts. This stems from their prior involvement in your client’s care and their apparent separation from the litigation—jurors will see that they have no vested interest in the outcome of the case.

Deposing treating providers is a nuanced process, and the deposition represents the culmination of the lawyer’s development of the witness, as opposed to the starting point. Here are some tips to help you make the most of these depositions.

The Role of the Treating Physician

Treating physicians may be called to provide fact testimony about the plaintiff’s medical history and treatment, expert opinions, or both. It’s essential to clarify in which capacity they will be testifying during the deposition and in the relevant disclosures. Treating physicians are nonretained experts and subject to the less stringent disclosure requirements of Federal Rule of Civil Procedure (FRCP) 26(a)(2)(C).

However, exercise care when proposing causation testimony from these witnesses, although such testimony is allowed. If they opine on causation and that opinion was not something they formed while treating your client, you may have to disclose them as a retained witness and provide a signed report. Likewise, if you are going to elicit such causation testimony, then make sure that the treating physicians have all the data necessary to support those opinions as they may not have all the required material in their own records.

Fact witness. Treating physicians may act solely as fact witnesses at trial. If they are not providing expert testimony, then FRCP 26(a)(1) governs the required disclosures. The provider would be testifying as a lay witness subject to the requirements of Federal Rule of Evidence (FRE) 701(a)–(c).¹ If you are going to use a provider in this capacity, be prepared to explain why, because jurors may wonder why the physician is not offering any opinions about the defendant’s conduct.

Expert witness. Treating medical providers, by virtue of their specialized “knowledge, skill, experience, training, or education,” are likely qualified to act as experts in their respective fields.² Once designated by the court as an expert, treating providers may offer opinion testimony if “it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.”³

Treating physicians may testify on the appropriate standard of care, provided that the physician is qualified as an expert by the court, either as a retained or nonretained expert.⁴ Treating providers who possess adequate qualifications and background information may also opine on causation.⁵ However, be careful: If the treating provider expects to testify on causation, they may be required to submit a retained expert report in accordance with FRCP 26(a)(2)(B), especially if the provider did not form a causation opinion during your client’s treatment.⁶

But do not be deterred, because at the heart of providing proper medical care is the treating providers’ understanding of the underlying conditions. This frequently involves an understanding of how those underlying conditions came to be. If there is an issue on causation, the opinion of the treating providers who have examined your client will be far more persuasive than any retained expert.

Also remember that treating providers can help the persuasiveness of your case by providing expert testimony on the reasonableness and necessity of your client’s past and future care. When the jurors are confronted with deciding between the credibility of the defendant’s expert who says your client doesn’t need any past or future care and the treating provider who says that based on their treatment of the patient your client did need the care rendered and will need the outlined future care, the jurors will be far more likely to side with the treating provider.

Working With Treating Physicians

Your client’s treating physicians can be critical allies who are advocates for your client and a cornerstone of your case.

Build a relationship with the physician. Meet with your client’s providers in person if you can. It is far easier to create a relationship that will withstand the defense’s attacks if you have talked face-to-face with the provider. During this meeting, explain that there are no concerns about the care they rendered, the client is grateful for the provider’s care, and the pursuit of litigation is about creating a way forward for your injured client in which the treating providers’ continued care is critical.

It also is important to uncover whether your client’s treaters have had any issues with your client that can be exploited by the defense. A prime example of such an issue would be if your client is not complying with what their treating physicians are recommending—in that scenario, you may face serious issues down the road.

Review the complete record set with the physician. Treating physicians are busy. Your client’s case is not their job, unlike retained experts. Unless you take the initiative, they will either not prepare for the deposition or review your client’s records right before (or during) their deposition. Most of the time, if they do review the records, they will do so remotely or someone from their office will simply print out the records for them.

To advance your case and avoid surprise, ensure that you have a complete set of your client’s records, review everything with the treating physician, and make sure you understand what was observed and charted. Likewise, confirm that they have access to any information they deem necessary to review. Make sure they have access to their practice’s or facility’s complete chart for your client, including imaging and lab work, for their preparation. Also be sure you fully understand their care, treatment, and potential opinions.

Get a written report. After the in-person meetings with your client’s treating physicians take place—even if they do not go well—get the physicians to commit their knowledge and opinions or professed lack thereof to a signed report. This will limit the influence the defense can apply to them, and, more important, the treating providers will want to defend what they have written. After all, they signed it.

Address ex parte meetings before they happen. If your state allows the defense to meet ex parte with treating providers, consider sending providers a “Dear Doctor” letter after you have established a relationship with them and before the defense has met with them. These letters let treating providers know that they are not obligated to meet ex parte with defense counsel.

Ask them to meet or speak with defense counsel only with plaintiff counsel present to limit the risk of inadvertently disclosing residually privileged information. Such letters need to be carefully tailored with particular consideration given to protecting your client’s privacy rights—including those enumerated by HIPAA⁷—and to avoid the appearance of trying to influence a witness.

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While treating physicians are typically viewed as impartial, explore any potential bias.

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Address questions of bias. While treating physicians are typically viewed as impartial, explore any potential bias they may have, such as a long-standing professional relationship with the plaintiff. This can help you identify and address any bias in their testimony that the defense may try to use later. Similarly, if there is any suggestion of bias or some relationship between the physicians and your firm, the defense will pounce on it during cross-examination. It’s best to get it out in the open early on.

Tips for the Treating Physician Deposition

When you take a deposition, you are better positioned to lay the factual framework, get the testimony you need in the form you want, and put the defense on its heels. Conversely, when you are forced to defend a deposition, you are often left to clean up and clarify testimony because the defense has been in control. So, consider whether you should take the deposition of your client’s treating providers to optimize the course of discovery.

For instance, you may have treating providers who you want to call at trial to explain some aspect of your client’s course of treatment. Consider whether it would be better for you to walk them through it during questioning at deposition as opposed to having to piece it together with them after the defense has been able to elicit testimony first about the course of treatment during its deposition.

As with any deposition, you should be the most prepared person in the room. You should have the records available for the provider’s use at any time during the deposition, and you should be intimately familiar with these records. Being thoroughly prepared will not only help you advance your case but also will demonstrate to the treating physician that you value their time and what they have done for your client and that they can trust you. Here are some tips to keep in mind for the deposition itself.

Establish the physician’s role. It’s crucial to clarify whether the treating physician is providing fact testimony, expert opinions, or both. This distinction is vital to ensure that their testimony aligns with the appropriate rules and disclosure requirements.

If you have a treating provider who is reluctant to be involved in the litigation or who is unfriendly, then give them a way out by confirming they are not going to provide anything more than fact information. If you and the physician are clear on what their role will be, then the defense won’t be able to cross-examine the physician on the scope of their testimony or expertise.

Lay an adequate foundation for expert opinions. Whether you are taking or defending the treater’s deposition, ensure they lay an adequate foundation for any expert opinion you want them to offer.⁸ Be prepared with a list of all foundational questions you need them to address to support the basis for their opinions, including their expertise, the facts on which they are relying, how they formed their expert opinions, and why they are positioned to render such opinions.

Address anticipated defenses. Assess what defenses you anticipate and whether your client’s treating physicians are positioned to counter them. Often, the defense will seek to shift the focus from the defendant’s conduct to the plaintiff’s conduct, particularly as it relates to a plaintiff’s efforts to address their injuries and damages.

Treating providers are uniquely positioned to discuss these issues given their relationship with your client. They may be able to explain everything that your client has done, overcome, and will continue to face as they move forward. Often, the full extent of your client’s efforts to address their injuries and the obstacles they have and will face are undeveloped in the medical records. Let your client’s treating providers fill in the blanks to dispel these anticipated defenses.

Inevitably, the defense cherry-picks your client’s medical records and care and uses their experts to minimize your client’s claims. Such expert opinions are typically based on a medical review and a brief assessment based on parameters set by defense counsel and the insurance company paying for the examination. The defense will try to characterize such an examination as an “independent” medical review.

But your client’s treating physicians can effectively counter this by establishing that they are the true independent examiners. They are involved in litigation only because they happen to be providing your client with necessary medical care, which is based on their own extensive assessment. During the treating physicians’ depositions, establish that they are only involved with this case because they are caring for your client. Also establish the extent of their assessments of your client, the circumstances of each assessment, the justification for the data considered during their assessments, how much time they spent with your client, and the fact that they were not brought into the case by a party’s legal team.

Even if your client’s treaters are not going to comment on the standard of care, consider whether you can use them to show what reasonable, proper, and attentive care looks like. For instance, if the treating physician cared for or continues to care for your client for the same or a similar condition to the one at issue, then use the treating physician to explain their approach and how it resulted in a better outcome. Then, you can later juxtapose how that treating physician rendered their care with the defendant’s care and the different outcomes.

Consider the jury’s perspective. Finally, whether you are taking the treating physician’s deposition or defending it, frame your questions and the physician’s testimony in a way that will resonate with a jury. Treating physicians are typically not professional experts. This can be used to great effect in your case as they spend most of their time explaining medicine to their patients, not juries. So, treating physicians usually do not know or get hung up on legal theories but can distill complex medicine into something the average person will understand. Use this deposition as an opportunity to frame your case in a way that will resonate with jurors at trial and that conveys the plaintiff’s story.

Deposing treating physicians is a critical component of building a strong case. These tips can help you conduct these depositions effectively—to present a full picture of your client’s injuries and future care needs from the doctors who know them best.

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Matthew Laird is a partner and Michael Weinhoffer is an associate at Thomas Keel & Laird in Denver. They can be reached at mlaird@thomaskeel.com and mweinhoffer@thomaskeel.com.

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Notes

1. Vincent v. Nelson, 51 F.4th 1200, 1213 (10th Cir. 2022) (“Lay opinion testimony must be: ‘(a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.’”) (citing Fed. R. Evid. 701(a)–(c)).
2. Fed. R. Evid. 702.
3. Fed. R. Evid. 702. See also Daubert v. Merrell Dow Pharms., 509 U.S. 579, 589–92 (1993).
4. See Butts v. United States, 930 F.3d 234, 239 (4th Cir. 2019) (“The applicable standard of care, and the defendant’s failure to meet the standard of care, must be established by the ‘testimony of one or more knowledgeable, competent expert witnesses if required by the court.’”).
5. See Brooks v. Union Pac. R.R. Co., 620 F.3d 896, 900 (8th Cir. 2010) (“A treating physician’s expert opinion on causation is subject to the same standards of scientific reliability that govern the expert opinions of physicians hired solely for purposes of litigation.”).
6. See Johnson v. Friesen, 79 F. 4th 939, 941, 943–44 (8th Cir. 2023).
7. See 45 C.F.R. pt. 160 & pt. 164, subpts. A & E (referred to as the Privacy Rule).
8. See Fed. R. Evid. 702; Daubert, 509 U.S. at 579–80, 597; Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997).