- Dr. Ron Heredia
Psych Depositions Are War! Who Wins? By Dr. Ron Heredia
A deposition by definition is the process of giving sworn evidence through testimony. Deposition of a medical expert in association with a workers’ compensation lawsuit is adversarial by nature. An attorney who takes a psych doctor’s deposition typically does so because they disagree with the doctor’s conclusions. The attorney asserts their right to challenge the doctor’s opinions through the legal procedure of deposition testimony.
First, the attorney, or their assistant, calls the doctor to schedule the deposition. This initial contact is a basically the attorney communicating to the doctor that they are being summonsed to a duel. At this point, the doctor is legally bound to participate in the fight. Many doctors will set the deposition at or around 120 days out, hoping that the case will settle within that time period, or for the attorney to decide upon a different route in their handling of the case. The doctor will probably issue a bill for their deposition testimony with a requirement that payment be received in advance of the deposition taking place.
Meanwhile, the stage is set for the duel. The defense attorney, the applicant attorney and the court reporter all take their places with much anticipation. The doctor prepares for the deposition, and issues their bill for time-spent preparing, which usually consists of reviewing their report, reviewing the patient’s records and conducting any necessary research. In all actuality, the doctor spends a significant amount of time to trying to guess at what the attorneys might ask during the deposition. It’s much like a high school student trying to guess what questions will be asked on the final exam in an important course, quickly realizing they should probably review all of the course material in order to put forth their best performance.
The psych doctor’s advantage on the day of the deposition is that they are the expert in psychology, psychiatry and/or neuropsychology. The attorney is not!
The attorney should consider that a psych report written for the workers’ compensation court must constitute substantial medical evidence. The attorney should also consider that the psychological diagnosis is the most vulnerable part of the psych report. Essentially, the doctor’s conclusions about causation, the GAF score, apportionment, disability and treatment recommendations, all rest on the doctor’s diagnosis. Stated in a slightly different way, when it is exposed during a deposition that the doctor’s report lacks support for the diagnosis, then causation, the GAF score, apportionment, disability and treatment recommendations all fall by the wayside. We don’t have to worry about or think about causation, the GAF, apportionment or treatment if there is no support in the doctor’s report for their diagnosis! Attorneys should also consider that support for the doctor’s diagnosis can be found in five areas of the psych report: 1. Life History and Current Symptoms, 2. Mental Status Examination, 3. Psychological Test Results, 4. Review of Medical Records, 5. Collateral Sources. On balance, the attorney will probably not see the outcomes they hoped for if they ask questions directed at the doctor’s opinions about causation, GAF score, apportionment, disability and/or treatment recommendations. Instead, the attorney could have great success if they direct their questions at discrediting the doctor’s diagnosis!
The doctor should consider that most attorneys approach a deposition with a strategy that involves getting the doctor to change their opinion about one or more of the following areas: causation, GAF, apportionment, disability, treatment recommendations. The doctor should also consider that the attorney taking their deposition probably does not have extensive training in psychology or psychiatry to know that they should avoid asking questions directed at the doctor’s conclusions in those areas, which are known to be left almost entirely to doctor’s subjective opinion. During cross-examination, when the doctor determines that this is the exact focus of the attorney’s line of questioning, all the doctor has to respond with is something to the effect of, “What I stated in my report is my best clinical judgment.” Like a broken record, the doctor can repeat, “In my report is where I stated my best professional opinion.” In summary, the doctor has a chance at “winning” if they rely on their “best clinical judgment” or “best professional opinion.” However, when the doctor realizes that the attorney’s questions are focused on exposing that their report lacks data to support their diagnosis, is when the doctor should recognize that their chances of “winning” are dim.
The victor of the deposition process largely depends on whether or not the doctor submitted a report that constitutes substantial medical evidence. If the doctor’s report contains sufficient data to support their diagnostic conclusions, then they should have nothing to worry about, and will likely win. On the other hand, when the doctor’s report does not contain sufficient data to support the diagnosis, and the attorney exposes those major flaws on the record, the doctor will likely be the loser!