When you get a “bad” report from an agreed medical exam (AME) or a panel qualified medical exam (PQME) your first thought might be to depose the doctor. Your second thought should be, maybe not.
5 reasons not to depose a doctor:
- Doctors rarely change their opinions. Factors such as ego, bias, facts, and law often prevent doctors from changing their opinions. Even in the face of skilled questioning, a doctor will usually not change an opinion of industrial causation to non-industrial, reduce impairment, or increase apportionment in a deposition.
- The doctor might increase exposure. As your defense attorney is trying to reduce exposure, the applicant’s attorney is trying to increase it! The applicant’s attorney will probably try to rebut the standard AMA Guides rating with an Almaraz rating. And he or she may push for more medical-legal referrals.
A sample conversation:
Q: Dr. Ortho, my client completed your questionnaire, correct?
Q: Did my client indicate complaints on the questionnaire outside your field of expertise?
Q: What were those complaints, Dr. Ortho?
A: The questionnaire indicated complaints of anxiety, depression, difficulty sleeping, and sexual difficulties.
Q: You also took my client’s medical history, personally, correct?
A: I did.
Q: During this interview did my client again complain of anxiety, depression, difficulty sleeping, and sexual difficulties?
Q: Complaints of anxiety and depression fall within the specialty of psychiatry, correct?
A: Of course.
Q: Sleep problems could indicate neurological issues, correct?
A: Yes, that is correct.
Q: And sexual problems may indicate a disorder regarding internal medicine, correct?
Q: You just indicated that all of these complaints fall outside the field of your expertise, correct?
A: That is correct, counsel.
Q: Referrals in psychiatry, neurology, and internal medicine would be required to fully address these complaints, correct?
A: Yes, that would seem reasonable.
Congratulations, you just bought three medical-legal examinations and untold additional exposure!
- If it is broken, why fix it? AMEs and PQMEs often write reports that provide industrial-causation or high-permanent disability but are not substantial medical evidence. There are many reasons why a report is not substantial medical evidence. Expert attorney advice is sometimes needed to reveal these flaws. But once the flaws are revealed, it is important to remember that it is the applicant’s burden to prove industrial causation and the extent of impairment (LCS 3202.5). It is not the employer’s burden. Hence, if a report is not substantial medical evidence, deposing the doctor may just give applicant’s attorney and the doctor a chance to fix a bad report and make it substantial medical evidence.
- Time and money. A doctor deposition will probably cost more than $1,000 in doctor and defense attorney fees. And it will add several months to the life of the case.
- Maybe you can settle the issues. Use your knowledge and skills to negotiate, compromise, and settle the issues you have with the AME or PQME report. However, be careful not to reveal too much. Do not show all your cards. If you do not settle, you want to close discovery and set the case for trial, with the expectation that the judge will not base an award on reports that are not substantial medical evidence. If you tip your cards during negotiations, the applicant’s attorney may decide that he needs to depose the doctor so he can fix the report and make it substantial medical evidence.
Important note: There are cases in which you should depose an AME or Panel QME. Nothing here is intended to imply you never need to. But you should consider the factors above before you set the next AME or PQME deposition.
California Attorney: Albert A. Navarra is a practicing lawyer from Newport Beach, CA, a Board Certified Specialist in Workers Compensation law, and a partner at Sapra & Navarra, LLP. Navarra is a frequent speaker about workers compensation issues, and has represented employers in the area of workers compensation for over 10 years. He is also an expert in constitutional law, the author of The Elements of Constitutional Law, and a frequent guest on radio stations across the country. He can be reached at: (866) 384-4891 or Albert@snworkcomp.com.
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