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Ian Ross

Legal Woes

A plaintive (plaintiff?) scent of weed permeates the air. The individual is nervous. He has already cancelled one IME (Independent Medical Exam) appointment and clearly does want to be here, in a room with me, a doctor hired by the insurance company that is protecting the entity that owns the apartment building, and stairs, where he claims he slipped two years ago, injuring his back. He is accompanied by a “legal” nurse, there at the behest of his attorney. Presumption is that the plaintiff is going to mess up?

I do not do a lot of medical legal work. It is always painful. My wife Cathy says, “they pay you to suffer.” Is not that the truth? Hence my hefty rate. This one turns out to be worse than usual, however.

Like most doctors, I see my role as aiding the court to get closer to the truth about what is going on in legal disputes where medical matters are involved. They need expert opinions. But plaintiff attorneys, I suspect, see us as the enemy and explain our station that way to their clients. Perhaps that was why this plaintiff, an anxiety prone sad sack at base line (judging from his alprazolam prescription history), felt the need to pre-dose himself with THC before our encounter.

He was also trying to make his own recording of the IME on his own phone. I had to insist that he shut it off at the beginning of the encounter, though the nurse in the room did make a recording.

The whole interaction lasted less than an hour. And I ended up being sympathetic to his situation … I believed him, despite some answers that sounded scripted. He had indeed been injured, needed surgery and, thankfully, improved with it.

But I was furious.

The interaction had been like one of those depositions were the attorney keeps objecting to questions, with long wordy objections, saying that there are problems with things like: “form of question, relevance, asked and answered, calls for legal conclusion, calls for speculation, and mischaracterization.” Anybody who has done a deposition has experienced this. It seems to go on and on. I have had it happen where the objection was so long that I had to have the question repeated … only to have to attorney go through the same litany of objections again.

There are real reasons to object … but it is my understanding that once the lawyer has made the objection, it is on the record, and it need not be repeated … the objection is not for me. It is for the court. They just throw in the objection again to irritate me.

I believe that that is why the nurse was there that day, to distract me from the job at hand, and get me irritated. It worked. She interjected frequently, telling the plaintiff which questions he could and could not answer. Some of her objections betrayed an ignorance of the most fundamental aspects of medical care. I cannot say that there were not questions that I would have asked had I not been interrupted. The whole IME might have been compromised by this nurse’s behavior.

Cathy, who also happens to be an attorney, thought that it constituted “sharp practice,” a term that attorneys use for unscrupulous, but not necessarily illegal, behavior. So, what should I have done, and what should one do, in these situations? The courts and legal system are not designed, believe it or not, to make a fool out of you. Do not let sharp practicing lawyers, and their henchmen, do it to you.

I learned later, upon reading Section 2032.510 of the California Code of Civil Procedure (C.C.P.), which governs IMEs, that a representative/observer for the plaintiff may be present and record the IME. I knew that my examination must be limited to the patient’s condition under controversy. But I did not know that, according to C.C.P §2032.510, the observer shall not participate in or disrupt the examination (which she did). And that if such an event occurs, the person conducting the examination may suspend it (which I did not).

Be as knowledgeable of the procedural rules as possible before you go into court, a deposition, or indeed any legal proceeding. Just because you are not the involved directly in the litigation (i.e. are not yourself getting sued), does not mean that it is not serious business. You need to be prepared. Your only protection against ending up looking like, or at least feeling like, a fool is understanding the rules. Do not take my advice. Perhaps my interpretation of the C.C.P. is flawed. But do speak and listen closely to whomever is retaining you. And if they throw you to the wolves, they are not good lawyers: and you do not want to be working for/with them.