Two weeks ago, I shared a post with some tips for workers’ compensation attorneys on how to deal with difficult doctors from my colleague Len Jernigan. In this follow-up post, I’ll share the remainder of Len’s ideas on how to take matters into your own hands when you are having trouble working with the doctor on your case. As with all medical matters, being an informed patient is at the core of these tops.
(8) Explain case procedure and why you are there.
Unfortunately, I had the experience of walking into a deposition once and the first question from the physician was “What’s going on here and what’s this got to do with me?” Just prior to a deposition is not the time to be answering this question. Some physicians have never had their depositions taken before and they are unnerved at the prospect. Explain the process and explain the necessity for medical testimony.
(9) Ease tensions.
Behind every physician-patient relationship there is the potential for a medical negligence claim. Ease that fear by letting the doctor know that the client is pleased with the care of the doctor (if indeed that is true). She may have reviewed the chart and seen something that concerns her, so reassurance of this nature is vital. If you are aware of a potential medical negligence claim, choose your words carefully. I can assure you she will. You should not misrepresent anything concerning this issue.
(10) Know the medicine.
Some of us think doctors keep up with all the latest articles and studies concerning relevant medical areas. The truth of the matter is that HMO’s, PPO’s and other managed care organizations barely pay them for seeing patients and the last time I checked “reading medical journals” was not under the pay provision of the contract. Therefore, understand andbecome familiar with the medical
terms involved in the case, have a theory on causation, and search for the latest articles on the subject. Tell the doctor that she is the expert and you are just trying to understand the medicine, and you are well aware that a non-expert with a little bit of knowledge can be dangerous.
(11) Ex Parte Communications.
Each state differs as to whether a defense lawyer or adjuster can communicate with a treating physician without the express consent of the patient/client. Fortunately, in North Carolina we have a case that has prohibited such contact. The remedy was to strike the deposition of the doctor involved. This was a hard remedy for the defense, but it has cured this particular problem, especially as to defense lawyers poisoning the well. It is a case worth reading, and I recommend it to you. Salaam v. Department of Transportation, 122 N.C. App. 83, 468 S.E.2d 536 (1996). In those states that do not prohibit ex parte communications, I would not hesitate to urge you to continue to challenge these rulings.
Basketball fans know that most free-throws don’t go in unless the shooter has a good follow-through on the shot. Simply jerking the ball toward the basket reduces its chances of success. Similarly, if you are building a relationship with a doctor or his staff, you should follow through after the case is over. If the doctor has been particularly helpful, be sure to thank the doctor in writing and/or send a gift.
(13) Be prepared to destroy credibility.
Some doctors are paid to destroy your case. Some doctors will even step across the line and be deliberately misleading about medical care. They will be more likely to do this if they can do it successfully without any penalty. Under these circumstances, an attorney should be prepared to take appropriate action. Don’t hesitate to attack their credibility, and if properly documented, report these individuals to the appropriate licensing boards and peer review groups at hospitals, etc.
Just as you investigate doctors and “ask around” about physicians in your community, I suspect the doctors do the same about you. If you are an honest, fair and competent attorney it will be reported back. If you are not, that will also be reported back. Keep in mind that it takes years to build a reputation but it can be destroyed overnight. The best advice to any attorney is to maintain high standards of integrity and competency and to treat all persons, physicians or otherwise, as you would like to be treated. I can assure you it will pay rich dividends over your long career.
Leonard T. Jernigan Jr. is the founder of the Jernigan Law firm, a highly experienced firm representing injured workers across North Carolina. An acclaimed attorney, author, and law professor specializing in workers’ compensation, Leonard T. Jernigan Jr.
is listed in Best Lawyers in America and Super Lawyers.