By Jasen M. Walker, Ed.D., C.R.C., C.C.M.

By Jasen M. Walker, Ed.D., C.R.C., C.C.M.

The Responsibility for a Code of Ethics

All organizations are responsible to conduct their affairs in an ethical way. When the organization is a company, the responsibility to develop and implement a Code of Ethics belongs to the company at large, as well as to individual departments within the company.  That is, the company should create and adopt a Code of Ethics that will spell out its values and ethical responsibilities in global terms, while individual departments will need to focus on specific values and how those values will apply to the operation of the department. A department within a company with the responsibility for planning and operating a disability management program, for example, will need to focus on the values and ethical treatments that apply specifically to the relationship between the company and its injured or ill employees. 

The basic premise is that the company at large is, in fact, an ethical company.  That means that all the principles of the Code of Ethics are owned and embodied by upper management and all of the employees.  The company must demonstrate that it is in fact obsessed with fairness; that it is prepared to, and in fact does, interact with diverse groups both within and external to the company; and that the integrity of the company is paramount. The mission of the company as expressed in the Mission or Vision Statement must comply with the ethical code of the company.

In an ethical company, the basic tenet is that all members of the company are highly valued and that every person’s interests count as much as anyone else’s. It is also important in an ethical company that responsibility is always individual, not collective, and that every individual must assume personal responsibility for the company.

Finally, every significant management decision has ethical implications. For that reason, the policies and procedures of the company must be consistent with the ethics code adopted by the company. All individual policies and all individual procedures must meet the test of the controlling ethics code of the company.  When the operating procedures of a department within a company require more specific ethics statements, it is the responsibility of that department to create and implement the specificity needed to ensure that the department measures up to the company’s ethical standards.

Benefits of a Code of Ethics

The formal, adopted ethics code of a company is a way to align organizational behaviors with the controlling values of the organization.  The Code of Ethics serves to establish the company’s belief in, and support of, an ethical approach to all of the activities of the company.  It is also the primary way the company has to instill an awareness and sensitivity for ethical issues and is the primary way to establish required operating values and behaviors.  The Code is the prototype for integrating ethical guidelines to the decision-making process throughout the company.  The formal Code also serves to convince employees that ethics are not just to improve public image. 

In addition, a company-adopted ethics code becomes the basis for resolving ethical dilemmas.  There is a high probability that ethical dilemmas occur more frequently in any program that deals with injured workers than in all other internal operating policies within the company.

Managing Ethics in the Workplace

A carefully considered Code of Ethics adopted by the company provides the structure for achieving preferred behavior in the company.  To manage ethics as a process, the company should establish a team approach to creating and implementing the company’s ethics code.  Employees fairly representing the workforce at large need to be in the development and implementation process.

When the Code of Ethics has been created and disseminated, all existing policies and procedures will have to be reviewed in light of compliance.  The concepts of the code will have to be integrated into the appropriate operating policies and procedures of the company.  Once the Code and its integration into the policies and procedures have been accomplished, a mechanism for the regular periodical review of them is to be scheduled.  It is, in the final analysis, more important to take the initial creating and implementing steps, than to have them perfected at the outset.  Revisiting the Code after a lapse of time and then fine-tuning it is more important than getting them absolute at the outset.

Roles

The CEO of the company must fully support both the concept of an ethics code and the specific statements of the Code.  If the company has a Board of Directors, they should have an oversight committee to continuously monitor the application of the Code of Ethics within the company.

It is also important that responsibility for the ongoing application of the Code belongs to one individual.  Responsibility cannot be assigned to a committee or team.  Team members create, implement, and monitor the application of the Code, but the ultimate responsibility for the process within the company must be assigned to one individual.  All individuals within the company are responsible for their own ethical behavior as spelled out by the ethics code, but the singular responsibility for the on-going updating and compliance to the Code must, of necessity, be owned by a designated company official.  The individual responsible for the viability of the Code of Ethics is in effect the company’s Business Ethicist.

Creating a Code of Ethics

A Code of Ethics is created the same way a Mission Statement is created.  The first consideration is to assure that the Code addresses all laws and regulations that are relevant to the activities the company engages in.  Second, the Code needs to identify the traits deemed significant in respect to both the employees of the company and the clients or customers of the company.  Traits would include specific concepts, such as objectivity, respect, confidentiality, and fairness.

It is important to recognize that some activities are not ethical considerations.  For example, behaviors such as promptness, absenteeism, and an inability to get along with others are justifiable management concerns, but they are not ethical issues in the same way as honesty, trustworthiness, and caring are.

The Code of Ethics should also address the issue of the company’s role in the community.  The issue of the company’s citizenship needs to be addressed on an equal basis with the desired behaviors of individuals within the company.  The relationships between the company and its customers is, of course, an important part of the Code, and it is here that ruinous litigations might occur if not properly anticipated in the creation and adherence to the ethics code.

Early planning for the creation of a Code should focus on the big picture and the minutia held until a later point.  The Code needs to include wording to the effect that all employees are responsible to conform.  With these preliminary considerations in hand, the Code creators need to collect ethical values and then prioritize those values in specific relationship to the company’s mission.  A Nominal Group Technique is an effective way to develop the values.

After the ethics code has been created and employees are made aware of it, the team should set regular intervals (e.g., 12 months, 24 months, 60 months) as to when the Code should be revisited to facilitate ongoing evaluation and updates to the process.

Ethical Dilemmas

Ethical dilemmas in a Disability Management Program will arise most frequently from the tensions between company personnel trying to return injured workers to productivity and the reluctance of those employees to do so.  Questions relating to the responsibilities of the company to transition injured workers back into the work schedule when the employee (and/or their attorney) are resisting that effort are fraught with the potential for unethical behavior.  Experienced Human Resources personnel need to play an active role in the creation of the Code of Ethics for both the company and the department they serve.  It is from the experience of these professionals that the ethical treatment of injured or ill employees will emerge to inform the Code creation and revisions.

The primary basis for developing specific ethical strictures when dealing with injured workers should be predicated on the proposition that the company wants all injured employees to return to full productivity if they are physically and psychologically capable of doing so.  If the company has not made a conscious decision to try to return employees to work, that needs to be the first consideration in developing a company-at-large Code of Ethics.

Resources

1. Regan, Tom, Editor.  New Introductory Essays in Business Ethics. Random House, 1984.

2. Brenner, S.N.  “Ethics Programs and Their Dimensions.”  Journal of Business Ethics, 1992.

3. Madsen, P. Ph.D., and Shafritz, J.M., Ph.D.  Essential of Business Ethics.   New York, Penquin Books, 1990.

4. Center for Applied Ethics:   http://www.ethics.ubc.ca

By: Jasen M. Walker, Ed.D., C.R.C., C.C.M.

In his popular book, Games People Play, Eric Berne, M.D., describes various roles people play in social games.  Games by definition are less than honest complementary interpersonal transactions with two chief characteristics: (1) An ulterior quality and (2) A pay off (Berne, 1964).

Social games serve particular purposes within the context or system in which they are played.  As Berne (1964) points out, “family life and married life, as well as life in organizations of various kinds, may year after year be based on variations of the same game.”  (p. 17).  Games structure time, provide a sense of predictability, and in some cases, give the players a sense of daily purpose.  Perhaps most importantly, games provide the context in which players can gain.  Seeking advantage and deriving gain are the reasons the same game is played again and again.

The author of this article has found that insurance rehabilitation specialists, rehabilitation counselors, and nurses working with workers’ compensation claimants, often take part in a game that, in this paper, will be termed “Disabler.”  The novice rehabilitation worker all too often engages in this game as a result of naively attempting to please her/his superior, or perhaps the insurance representative who may unrealistically expect instant progression toward case closure.  The more experienced rehabilitation specialist, perhaps jaded by the inherent frustration of “making things happen” in difficult cases, may also play, but generally a different role in the same game.  The roles played in Disabler are three: Persecutor, Victim, and Rescuer.  The ulterior quality of this game exists in the essentially dishonest communication among players, and the ultimate payoff is generally the same.  That is, the injured worker maintains her/his disability status, frequently with more honor and greater certainty than before the “rehabilitation” effort.  Various members of the work-insurance- medical-legal system assume different roles at different times in Disabler, but the ulterior quality of player interaction and the game’s payoff usually remain consistent.

In this article, the author further describes the game, Disabler, and suggests ways the rehabilitation professional might avoid the less than rewarding interactions and outcomes of this social/professional game.  The author encourages the reader to reflect on her/his own experience with this game.

It has been said that the insurance rehabilitation professional “works for two masters.”  The rehabilitation professional, on the one hand, must provide her/his client, the injured worker, with human service usually including counseling, guidance, information giving, and return-to-work planning.  In doing so, the rehabilitation specialist becomes involved in a counselor/client relationship.  Trust and rapport are established if this relationship is successful.  The rehabilitation counselor is ethically obligated to provide the injured worker with the opportunity to make informed decisions and to act on available alternatives within the confines of the injured worker’s rehabilitation program.  The rehabilitation counselor or nurse works best when she/he enlightens her/his client as to the potential consequences of choices and actions within the insurance rehabilitation framework.

On the other hand, the rehabilitation professional is also working for an employer or its insurance carrier.  To that end, the rehabilitation counselor or nurse must remain accountable to this other client by providing a realistic assessment of the injured person’s rehabilitation potential, by identifying and reporting rehabilitation road blocks which impede progress, and ultimately, in returning the injured worker to her/his highest level of functioning, usually some form of gainful activity.  The rehabilitation professional must report regularly on case progress and provide the referral source with accurate information regarding the changing status of the claimant’s rehabilitation. 

This tripartite relationship of employer (or insurance carrier), injured worker, and rehabilitation professional provides fertile ground for the triangular game involving persecutor, victim, and rescuer.  In the game of Disabler, the classic or most commonly established principles involve the “persecuting” employer, or insurance carrier, the “victimized” injured worker, and the “rescuing” health care professional.  The roles can change, of course, and they often do when the source of power switches from one player to the other.  For example, most observers will initially perceive the injured worker as the victim, and the insurance claims representative, the persecutor.  Such a scenario appears favored by many physicians and plaintiff attorneys.  With time, the refractory injured worker develops a profile of greater disability, and from the perspective of the employer, the claimant begins to “win” at the employer’s expense.  Indeed, many claimants wish to battle for their perceived entitlement, and as they win, the employers lose.  As the injured worker tends to persecute through passive resistance to rehabilitation interventions, the employer/insurance carrier becomes victim to considerable exposure.  In an effort to reduce or cease exposure, the employer/insurance carrier may employ legal intervention.

When litigation is involved, other “Disabler” triads are possible.  The claimant attorney becomes the claimant’s rescuer from the persecuting rehabilitation counselor.  On the other hand, the defense attorney may come to the aid of the “victimized” rehabilitation counselor in an effort to subdue the antagonizing claimant who may flail false accusations at the rehabilitation counselor, who, in the claimant’s eyes, has been sent to persecute.  Thus, attorneys battle each other for their perceived sense of justice while the claimant and rehabilitation counselor take turns in the roles of victim and persecutor.  All of this, of course, only complicates rehabilitation.

Notwithstanding the sources of power and the changing roles played, the rehabilitation professional works best when she/he can avoid participating in this game.  Instead, she/he must work to encourage effective communication among players, if possible.

The effective rehabilitation professional works within a “healthy distance” of the game and its players.  She/he must be very careful not to rescue and equally prudent to avoid persecution of any party.  It is very important to realize that among roles persecutor-victim-rescuer, the rescuer always gets “kicked.”  As players seek advantage, any effort to remove or rescue the victim will bring on the wrath of the other party.  Since the “show (game) must go on” the rehabilitation professional is most effective when she/he does not play the game, but rather attempts to change game dynamics, particularly by increasing open and honest communication among players and confronting the claimant with her/his behavior and its consequences.  Certainly, this is not an easy task in most cases.

The intervention with the greatest potential involves either separating the parties through case resolution and thereby ending the game, or facilitating more constructive communication among parties with the hope of “creating” a time-out from play.  Direct and clear communication among potential players helps bring “hidden agendas” to the attention of all parties, and thus the possibility of some sensible resolution.  In workers’ compensation matters, resolution can take place by means of job placement, commutation of benefits, litigation, or case closure due to legitimate total disability.

For the novice rehabilitation professional, as well as the less than adequately trained rehabilitationist, the ideas of fostering effective communication within the system and/or counseling the injured worker on the potential consequences of her/his behavior are too seldom understood.  Instead, the rehabilitation nurse or counselor chooses to act as an advocate.  For the novice rehabilitation counselor or nurse, the idea of not functioning in the role of advocate can be disconcerting.  Most human service workers are academically trained to indiscriminately function as client advocates.  Without consideration of the potential consequences of such practice, the newly trained rehabilitation professional tends to see injured workers as victims rather than actors, responsible players, in a social game that they inadvertently have helped create and maintain.

Recently graduated rehabilitation workers often come to the helping professionals with a strong need to be “liked” by clients.  Often, the novice rehab worker confuses empathy and sympathy.  As a result, efforts to assist become “enabling” rather than corrective or curative.  Although the injured person must learn or relearn to become self-sufficient, the rescuing rehabilitationist unwittingly feeds the very dependency that is at the core of the injured worker’s continuing disease.  The rehabilitation counselor fosters the dependency status of the injured worker when the counselor tries to control rehabilitation development by doing too much for the claimant.  Oftentimes, the injured worker is all too willing, for example, to let their rehabilitation counselor provide all the job leads and sit back and blame the counselor or the system for unsuccessful job placement.  Sympathy for the injured worker often provides her/him with an additional reason to accept her/his impairment(s) as overwhelming handicaps rather than relative limitations.  This acceptance of disability is, of course, the potential payoff in the game Disabler.

Conversely, the rehabilitationist who advocates the position of the employer, without appreciation or concern for the injured worker’s situation, tends to overlook substantive issues that affect case management.  In the long run, such ignorance on the part of the employer-advocate only results in not properly servicing either the injured worker or the employer/insurance carrier.  For example, allowing an employer to place undue or untimely pressure on an injured employee may only drive that injured person deeper into a defensive, disability posture.  To act as an advocate, however, only confuses already complex human situations in which hidden agendas and perceived secondary gains perpetuate gamesmanship.

In closing, the author would like to state that the rehabilitationist servicing workers’ compensation claimants should avoid assuming a role in “Disabler.”  The rehabilitation counselor or nurse is most effective when she/he understands the dynamics of this game.  She/he works best when she/he attempts to counterbalance the ulterior quality of the game by modeling and facilitating clear, effective communication within the system, and making the possible consequences of the claimant’s actions clear to her/him.  Ideally, the rehabilitation professional can concomitantly assist the injured worker to return to self-sufficiency and remain accountable to the employer/insurance carrier.  Here are some additional suggestions in attempting to create that ideal:

Endeavor to understand and appreciate as much of the total picture as possible.  Realize that there are at least two sides to the story you may be hearing from an injured worker or from an employer.  The more you know about the needs of both parties in the claimant versus employer relationship, the more effective you will likely be in creating movement in a rehabilitation case.

Feedback from co-workers about a particular case may prevent a tunnel vision, which could block creative and productive alternatives during case management.  Staff your cases with others in your office.

Do not advocate one party’s position over another.  If you are asked to testify on behalf of an employer, remain factual and be prepared to support your opinions with valid evidence.

Be assertive with all parties.  As a consultant called upon to provide expert services, listen to your client’s needs, but do not allow the client to dictate methods or strategies that you believe will fail.  If you acquiesce to all client demands, you serve no real purpose.  Similarly, be directive and goal oriented with the injured worker.  Know and practice the profound difference between sympathy and empathy with those injured workers who need your assistance.  Do not let feelings of sympathy affect your decisions to help.

Know your role and stay within it.  Do not play claimsperson, attorney, or physician.  Carefully consider and utilize the information these parties provide; do not present evidence with personal bias; instead, use professional judgment.  Make your role and your purpose clear to the injured worker and to the other parties involved.

The writer encourages readers’ thoughts and comments.  The dynamics of the game Disabler are complex, not always recognizable, and less easily manageable.  Awareness of the game and a willingness to avoid direct participation can enhance rehabilitation potential and increase the probability of a satisfactory result in workers’ compensation cases.

Published: Journal of Private Sector Rehabilitation, Vol. 3, Nos 3&4, 1988

Reference

Berne, Eric, (1984).  Games People Play, Ballantine Books, New York, NY, 1964.

Acknowledgement

The author would like to thank Deborah Roache, M.S., C.R.C., for her contribution to this article. 

Strategies for the Use of Independent Medical Examinations

On Friday, April 5, 2002, CEC Associates, Inc., of Valley Forge, Pennsylvania, sponsored a workshop on the use of the Independent Medical Examination (IME) in contested claims.  The presenters at the workshop included the following:

Ø      Jasen Walker, Ed.D., C.R.C., C.C.M.
President, CEC Associates, Inc.

Ø      Jane Lombard, Esquire
Swartz, Campbell & Detweiler

Ø      Thomas Grier, Esquire
Law Office of Thomas Grier 

Ø      Timothy J. Michals, M.D.
Forensic Psychiatrist

 Ø      Wilhelmina Korevaar, M.D.
Forensic Physician specializing in pain

The following materials are the transcription of the presentations.

The Importance of Being Right the First Time:

Dr. Jasen Walker

Why did we conceive of this workshop, how did it begin, and why did we choose IMEs?  In personal injury lawsuits, medical malpractice cases, slips and falls, automobile accidents, liability matters, and workers’ compensation cases, IMEs serve a purpose.  Most of us think that the purpose is to, in fact, describe medically what it is that an individual is all about at a particular time.  But that is really not what the independent medical examiner is asked to do for the lawyer. 

The lawyer needs to use the IME and the testimony of the independent medical examiner as a platform to defend or to plea the notion of disability, because disability then means damages in workers’ compensation terms, and whether or not you have an earning capacity.  In liability matters, the damages are usually employability and earning capacity.  There is always an issue of causality, but we realized very quickly in our development as an organization that IMEs, for very different reasons, fell short of the ultimate goal.  That goal is to assist an adjudicator in understanding what disability is.  We have found that most don’t understand the concept of disability. 

Most of us still conceive of disability as a medical concept, and it is not.  Disability may result from medical impairment.  Disability is an occupational concept.  It’s a social concept.  We too often rely, sometimes unfairly, on the medical examiner to give us information about disability.  We realize that if we could offer good IME services, we could teach the world, as grandiose as it sounds, about disability.  We’ve been partially successful at that. 

You have some of our literature.  On the literature is a logo.  This logo is not like a GE logo.  Everybody knows what GE stands for.  Everybody knows that GE stands for General Electric, and everybody knows what General Electric does.  They make airplane engines and light bulbs and money.  Our logo has, for us, an equal significance in terms of its power to send a message.  Just understand that this logo is four hands coming together.  Dr. Korevaar can tell you that anatomically, no one has four hands.  There is four-handed dentistry, but that’s a job description, not a person.  The four hands are not about a person, and they are not about disability.  The four hands mean that two hands might represent a person who has been injured or impaired, and the other two hands represent someone else.  Therein lies the power of the logo. 

Disability is not a function of one person falling down, being injured, becoming ill, and therefore, being irresponsible or being disabled or taking advantage of someone else.  Disability is often a dance between two people.  You can’t be disabled unless someone is not allowing you to work.  You can’t be able to work unless a physician says to you that you are released to work.  The point is that disability is the function of more than one person.  Parenthetically, rehabilitation and return to work also requires more than one person, more than the patient or the injured worker.  It is indeed two people, at least two people.  Ladies and gentlemen, if there’s anything you take away from the workshop today, please understand that disability is a social concept that is often induced.  Disability in this culture would not exist unless someone was indeed dancing, or malingering with the person who claims to be disabled.  Therefore, I would like to introduce another idea to you, and it’s not my idea.  It comes from Ken Mitchell.

Ken introduced to me the concept of co-malingering.  We sometimes think of someone who is claiming disability as someone who is malingering.  But I ask you, who is malingering, the injured person who says they can’t work or the physician who says the injured person can’t work?  Who’s malingering, the injured person who says that they can’t work or the spouse who says, “Honey, stay home, don’t work”?  Who’s malingering, the injured person who says they can’t work or the employer who says, “You can’t come back and work here unless you’re 100 percent”?  How many of you every day work next to somebody who’s 100 percent? 

Disability can be induced.  Disability is induced in the insurance industry with something called subrogation.  That means that if somebody is injured and there is a third-party claim, all rehabilitation must stop so that more money is not spent and whatever has been already paid can be recouped.  Disability is induced.  I don’t know how many people I’ve seen that come in and say to me, “Dr. Walker, I can’t work.  I know I’m here for a disability evaluation, but I can’t work.”  I say, “Tell me why you can’t work.”  And their immediate response is, “Well, I receive Social Security Disability Insurance.”  I look at this person, and I test them.  Anatomically they look like a normal person to me.  And I get a report from the treating physician saying they can do this or that physically and there are surveillance films showing they are doing this or that, but they are still telling me they can’t work because they receive SSDI. 

So, we know from experience that this idea of disability is a complex thing, and we also know that the IME is a critical component in explaining to the court, jurors, and a judge (or a group of panelists) that a person has functionality, a person can sit, stand, walk, etc.; the person can do things.  That becomes only part of the puzzle. 

I am not a medical examiner, but I have been in the courtroom many times over the last 20 years in different jurisdictions: workers’ compensation, Social Security, liability matters.  In front of adjudicators, panelists, federal court, civil court, and even family court regarding divorce and whether or not a spouse has disability.  So I would like to be bold enough to suggest to you that this idea of being right the first time is critical for any forensic expert, including IMEs. 

I am going to try to walk through some ideas with you about what it takes to be right the first time.  The other day I was in federal court and people were asking about my expertise.  After I was asked to testify on behalf of the defense, the plaintiff lawyer got up and said, “Well, Dr. Walker, so you’re the hired gun.”  There was an objection, but he got it in.  Ten years ago I couldn’t have done this.  I responded, “Well, if I am sir, I’m the straight shooter.”  Only because the point was I wasn’t there as a hired gun, and I learned from Tim Michals that you’re there to help, you’re there to help straighten things out, to assist the court in understanding a particular matter. 

Independent medical examiners must appreciate that when performing an IME, they are there to assist the court in understanding more about the plaintiff’s medical condition.  That’s their job.  Someone, a court official, one of the lawyers, has hired the IME physician as an assistant to explain their expertise and their understanding of this person’s condition, functionality, prognosis, diagnosis (whatever it might be) so that people can make decisions.  The IME physician doesn’t have to really think about anything else regardless of what a lawyer might be trying to imply about their credibility.  So that’s a key point: regardless of what is heard, independent medical examiners are not hired guns.  They are people who are asked to assist in the adjudication process because they have a particular expertise.  That’s good. 

Now, what you are going to hear in a moment may not be completely the case from everybody’s perspective, but those of you who do IMEs, that’s what I want you to believe.  Regardless of what you’ve been told, in order to assist, you have to have all of the information about a case.  Those of you who are lawyers or claims people, if your independent medical examiner asks, don’t make them crawl, for the information that they need in order to assist you.  Don’t embarrass them in court when they don’t have the information.  Those of you who are plaintiff attorneys, don’t be cheap.  Do not send half of a deposition because you think the person only needs to read so much of it.  Even if the information is irrelevant, all the jury has to hear is, “Well, Dr. Michals, you didn’t see this, this, and this.”  Even if it’s irrelevant, even if Tim says, “I didn’t need to see that,” the jury will always suspect you didn’t see it all. 

Know your expertise as an independent medical examiner.  We have lost millions of dollars in workers’ compensation, long-term disability, and liability insurance; everyone here is a consumer of those products.  Everyone here has to have insurance.  We have lost trillions of dollars in this country because we have confused two terms: impairment and disability.  Physicians are not trained to assess disability.  That is not their expertise, and I use as support of that The American Medical Association’s Guides for the Evaluation of Permanent Impairment.  That’s the book that helps Dr. Jaeger and other people to establish an impairment rating.  

In the preface of the Guide, there’s a clear and distinct difference between impairment and disability.  It’s well written.  It’s more eloquent than the following example, but this you will remember.  If I lose my middle finger and I am a concert pianist, I probably would have a disability.  That’s both my impairment and my disability.  But if I lose my middle finger and I’m an over-the-road truck driver, no matter how much I try to convince my northeastern Pennsylvania family physician that I need that middle finger in order to direct the traffic of others and that that’s an essential function of my job, that, I assure you, is not a disability.  Or Joe the truck driver says, “Hey, look, I lift 150 pounds.”  The doctor says, “ Well, it’s pretty close to your pinky finger.  Your last two fingers are your most powerful fingers, so maybe you do have a disability.”  But what Joe doesn’t tell the doctor - those of you who establish IMEs and create IMEs, and then arrange for IMEs and make IMEs happen - the doctor doesn’t have a job description.  Therefore, the doctor is in the dark about what Joe actually does.  The doctor thinks Joe lifts 150 pounds, but Joe only does that one time a year right around the Christmas rush, and he probably could get help doing it.  But that’s not what Joe wants the doctor to hear. 

There is a difference between impairment and disability.  I don’t know how many IME reports I’ve read that have included, “So-and-so can’t work.”  Then everybody is scurrying around saying, “My God, we have a terrible claim here.  Dr. John said that so-and-so can’t work,” as if that were a statement by God Almighty.  I say, now wait a minute, Dr. John is not a vocational expert, but he said he can’t work.  But I have gotten your attention, right?  Remember the middle finger.  So be careful driving home. 

Don’t assume the purpose of the assignment.  Independent medical examiners should not assume that they’ve been asked to examine someone for a particular reason.  Claims people and lawyers make sure that the physician does understand what you expect from him.  It’s almost knee jerk now that when an evaluation comes into my office, I know what it is that people are asking for.  But the moment I in fact make that assumption, that is potentially a problem.  So ask.  If the examiner does not know what it is that the referral source is asking, they must ask.  Pick up the phone and ask.  The IME physician is allowed to talk to these people.  They may be asked what was said during court, but they can ask. 

Understand the IME examiner role in the bigger picture.  IMEs are the basis for evaluating loss and damages.  Medical examinations only take you a third of the way there.  There is a type of analysis of what constitutes damages in a liability case.  It starts with medical assessment, requires a vocational evaluation, and then ends with an economic assessment.  People can be impaired and still work, but they may not be able to make as much money with their impairment as they might have if they had not been injured.  So, the point is that medical examiners need to understand the context for which they offer opinions. 

We all know the importance of addressing functional capacities.  But we’re still in the evolutionary stages of disability evaluation.  I’ve seen this happen.  The nurse will fill out the functional capacity assessment form and hand it to the doctor, or the physician will interview the person and say, “What do you think you can do?”  We’re in a state of changing the art with functional capacities evaluations, but the point is whether the expert is an orthopedic examiner or a psychiatrist or a specialist in pain, ultimately their testimony should speak to residual functional capacity, whether those be physical or mental capacities or both, not disability conclusions. 

And that’s the examiner’s role in the bigger picture.  They need to understand that before they even go into the assessment.  They may want to see surveillance films.  Some independent medical examiners, I assume, will say that they don’t want to see surveillance, but on the other hand, what people do on film is as important, if not more important than, what they tell you they can do. 

I tell people who work for me, when you do rehabilitation, don’t play claims person, don’t play lawyer, and don’t play physician.  You are a rehabilitation professional.  I tell independent medical examiners to use standards and not just what they’ve been taught in medical school, but what God, their mother, and opposing counsel would expect of them.

I will point out that the Code of Professional Ethics for Rehabilitation Counselors addresses the issue of professional responsibility extensively.  In that section, the Code includes information regarding “boundaries of competence.”  The Code states:

Rehabilitation counselors will practice only within the boundaries of their competence, based on their education, training, supervised experience, state and national professional credentials, and appropriate professional experience.  Rehabilitation counselors will demonstrate a commitment to gain knowledge, personal awareness, sensitivity, and skills pertinent to working with a diverse client population.  Rehabilitation counselors will not misrepresent their role or competence to clients. 

I frequently hear independent medical examiners being slandered.  The other day I was in a meeting where a defense lawyer and a plaintiff lawyer were arguing.  The plaintiff lawyer said that he don’t care if it’s so-and-so or so-and-so, you know they’re both lying.  He actually shared their names after slandering them.  I want to remind you that being an independent medical examiner is an honor.  I want to remind IME examiners that they are there to assist the court in helping make a decision, and one of the ways to really appreciate that is that a lot of times the expert will disagree with treating physicians, and they shouldn’t feel guilty about that. 

Treating physicians often make clinical mistakes because they are too close to the problem, too close to the forest to see the trees.  Treating physicians are there to heal people.  The treating physician’s job is to align himself with a patient in a therapeutic process.  You can’t have a therapeutic process unless you have some rapport with the person.  If you have rapport with the person, you’re going to like the person.  Some people not only treat the person, but treat the rest of the family as well.  Treating physicians can be co-malingers even if they are not consciously aware of it.  They can be too involved with the patient.  Sometimes I’m asked the question, “Well, don’t you understand that the treating physician knows this person better than the IME person, Dr. Walker?”  I say that is not necessarily true.  Maybe that treating physician is a little myopic.  Maybe they are too close to the forest to see the trees. 

The idea that the IME physician is looking at all of the information possible and they are an objective observer and don’t have an agenda, regardless of who’s paying them, is a very powerful method of assessment.  So once they’ve done their examination, they need to do an evaluation report, and it has to be readable and have an introduction, a body, and a conclusion.  Most people will read the end of an IME report first.  There, the examiner ought to state their conclusions with medical certainty.

The IME physician’s job doesn’t end with the report.  Hopefully, the lawyer will use the examiner as a consultant in the process of preparing for trial.  An independent medical examiner doesn’t have to be like that lawyer I heard bad-mouthing people, but they can be a really good consultant to the lawyer in critiquing the other side’s expert.  They can be a really good consultant in helping that lawyer prepare in asking the examiner the right questions, because if they don’t have the right questions asked, they won’t be able to tell the story.  And ultimately, that is the IME physician’s job – to tell the story, not a story, the story – and that’s important. 

The Code of Professional Ethics for Rehabilitation Counselors speaks to “consultant competency” in Section E.2.b., stating:

Rehabilitation counselors will be reasonably certain that they have, or the organization represented has, the necessary competencies and resources for giving the kind of consulting services needed and that appropriate referral resources are available. 

This is important too.  An IME physician can manipulate language in reports to confuse the hell out of people, or they can use their language so clearly that it says scientific things in lay terms.  Examiners will ultimately achieve a better perception, not only from the reader of their reports but from the people who are listening to the story later on in court.  And finally, this is my favorite to teach everybody on my staff.  They are so sick of hearing me say this.  PEF – preparation, execution, and follow-up – there is nothing you do successfully in life unless it takes three steps.  There are three parts: a beginning, middle, and an end.  There is a preparation, an execution, and a follow-up. 

As independent medical examiners, and those of you who are working with them, it’s the responsibility of the independent medical examiner to pick up the phone and ask how did they do.  They don’t have to say that in an insecure way.  If somebody perceives the expert as insecure for asking, they give them a whole bunch of stuff like, “You did really well, doctor.”  The examiner is asking for feedback.  Unless they do a lot of videotape presentations and they review them all, it’s hard to look at themselves as an expert witness live in court.  A lot of times the lawyers will poll the jury.  They will survey the jury after a decision is made.  They will say, “What did you think of this witness, and what did you think of that witness?”  There is a lot of good information out there for the IME physician, and as an independent medical examiner and as a lawyer working with him and as a claims person, we should encourage that process, get feedback, and learn more about individual styles of a witness.  The IME consultant should feel free to follow up about his/her presentation while remaining disinterested in the outcome. 

Coordinating and Scheduling the IME from an Attorney’s Perspective:

Jane Lombard, Esquire

Thank you and good morning.  I was called by Jasen yesterday to fill in for Jim Haggerty this morning, and when he told me the topic was IME physicians and coordinating and scheduling the IME, it gave me a great opportunity to reflect on what I actually do and how frequently I do become involved in the IME process and the deposition process.  I practice workers’ compensation, and the IME is integral to the workers’ compensation process.  It will make or break your case.  If you don’t receive an accurate IME, you’re often left in the situation where it’s six months before you can have a reevaluation.  It is critically important to get it right the first time and maximize the opportunity. 

What I would like to do this morning is talk about some of the things I look for in an IME physician; what I look for when I am putting together the referral for the IME physician, when I am preparing the IME physician to testify, and most importantly, when the IME physician is testifying; and some pointers that I look for from the defense perspective that will help in testimony.  The best IME report in the world is not helpful if it can’t be backed up with persuasive testimony. 

Choosing the IME physician: What do I look for?  At a minimum, I’m looking for qualifications, and that’s generally a board certification in the field of expertise.  Sometimes I’ll have a physician who is board eligible but simply hasn’t put in enough time to take the boards.  It’s not fatal to the situation, but it’s not ideal.  I want someone who has that baseline level of the board certification. 

You want to match your expert’s qualifications with the type of case you’re dealing with.  If you have a back strain case, you don’t necessarily need the top neurosurgeon.  You want a board certified orthopedic surgeon who is capable of assessing a back strain or you might need a physiatrist depending on the length and the nature of the impairment.  I was going to say disability, but I was paying attention. 

You want to look for that match between the kind of case you have and what this doctor’s practice is all about.  One of the types of cases that I frequently deal with is upper extremity injuries – carpal tunnel, the epicondylitis – things like that.  Oftentimes, the choice will be between a general orthopedic surgeon, who certainly has the expertise to deal with the upper extremity case, or a hand surgeon, who not only has the orthopedic experience, but has that extra measure.  I think that in these types of cases, particularly where there has been a surgical intervention, I’ll look for that extra measure of qualifications.  I think that that’s where I can often score some points because the plaintiff’s expert doesn’t always have that extra measure of qualifications and that’s where I can differentiate my expert.  That’s what I will hope to do. 

One of the questions that I’m often faced with is, do I want the top guy in the field, the expert?  That’s a difficult question.  Sometimes you do.  Sometimes the nature of the case is going to demand the top guy, the one who has published the most, the one who in the country is regarded as the “go to” guy.  But there’s a downside to that.  One of the things I also look for in my IME physician is accessibility and flexibility, and you don’t always get that if you want the top guy.  He’s not going to be available to take your phone call.  He might not have hours to look through your medical records, and when it comes time to schedule his deposition, he might not be the most available person.  So there is a downside, and that should be considered when you’re choosing this physician. 

Finally, I want to talk about the hired gun, the overused expert.  They are out there, and we have to deal with it.  But they are out there on both sides, and you are going to see the same family physicians and the same treating physicians on the claimant or plaintiff side.  At a deposition that I recently attended, a physician gave this explanation for why he believed that he was an independent medical examiner.  He said that he is independent because he makes one assessment.  He sees this person for one examination and makes his conclusions.  It’s all based on that and then he walks away.  If he’s going to make treatment recommendations or he’s going to say this person is in need of surgery – he’s not going to do that – he’s going to turn it over to someone else.  He doesn’t have a vested interest in maintaining the person in a system.  From that, they are able to say that they have some independence.  I think it’s a good way to handle it. 

Where you are using an expert who frequently testifies and is very involved in the litigation system, it’s important to handle that with grace and candor.  It will come up, and it needs to be dealt with.  It doesn’t serve anyone’s purpose to be cagey or to hedge the question.  Deal with it forthrightly, and I think this gets it out of the way and it’s done with. 

The IME introductory letter is very important.  This sets the tone.  This gives your expert an idea of what you want, how you want it, and what information you have to give to him.  So here are some pointers on preparing the letter and forwarding the letter. 

Before I get to that, let me just explain a little bit about how I often get the case, and I don’t often have the opportunity to structure the letter from the start or choose the experts.  A lot of times, that is already done for me, and when I get the case, the IME report is in there and then I’m playing catch-up and that’s tricky.  You have to be careful in seeking clarification based on what they’ve already decided.  Ideally, I would like to select the expert, and I would like to make contact with the expert prior to the examination.  I would like to give him an introduction to the case, but the reality of the situation is that doesn’t often happen, and one of the situations I find common is when the IME is done and all of the information was not available.  So I’m playing catch-up, and I’m forwarding information in dribs and drabs. 

This is particularly true in workers’ compensation settings because we haven’t had a long period of discovering to gather all of this information, which is dynamic.  It’s happening as we’re litigating.  So it’s a constant string of information that you’re trying to feed the expert.  What you want to do when you craft that letter is set forth the procedural status of the case, where is it, what’s happening.  Set forth the facts and identify and summarize the medical records, provide the expert all of the records that you have and continue your efforts to get the records if you don’t have them all.  Send them the films; don’t just send them the reports.  That is very important.  If they just have a report of an MRI, then they’re stuck with the conclusions of the radiologist.  If they actually have the MRI film, they can make their own interpretations. 

Recently, in the United States District Court, in connection with a motion for summary judgment, Judge Koffman rendered a memorandum addressing the sufficiency of an IME letter.  What he did was deny the motion for summary judgment.  What the judge found was that the IME letter was somewhat inflammatory, and he thought that maybe that could form the basis for a bad fake action.  I think that this really kind of hits home with how crucial it is that the IME letter not be overly suggestive, not be inflammatory, and be as neutral as possible while getting your point across.  Don’t use words like “this was a minimal incident and the plaintiff is still out of work this much later.”  Let the doctor make those conclusions, and you set forth the facts.  Let him interpret the data.  Stay away from any kind of suggestive language.  Importantly, ask the questions that need to be answered.  Set them forth, put them in bullet format, and let the IME physician know what you’re looking for. 

In a workers’ compensation setting, the doctor is often forced to assume certain facts that he might not accept on his own.  This situation arises where a judge has already determined what the scope of the injury is and maybe another doctor has disagreed with that, but the fact remains they’re stuck with it.  For subsequent IMEs, the attorney has to deal with what the judge has determined the injury to be.  Make sure the doctor knows that.

I think it’s also important to offer the expert the opportunity to contact you for further clarification or for further information.  It avoids having to seek that addendum report.  You make sure that you and your expert are on the same page.  I think that’s a synopsis of what I’m looking to do with that letter. 

The report itself – Jasen touched on this – we want to be comprehensive, and we want it to identify the history.  We want it to have physical exam findings.  If there are records that have been reviewed, identify the records that are important.  We don’t need a narrative of every single office visit, so that the IME report is 30 pages long, and it’s just too long.  Hit the highlights; we can flesh it out later.  But the diagnostic studies are obviously important.  Where they need to be distinguished from physical exam findings, do that. 

Most importantly, in the report, answer the questions that have been asked and answer them with specificity.  I’m looking for an assessment based on recovery, so tell me if he’s recovered.  Don’t hedge it – tell me yes or no.  Let me know if I can go forward with this report, or if I have to wait six months.  One of the things that I don’t like to see in an IME report is recommendations for further tests, for further treatment, for where the examiner would take this if they were treating the patient; they’re not treating the patient.  I’m asking the examiner for an opinion based on the information that I have available to me and the information that they have based on their examination and review of the records.  Sometimes it’s not possible, but be definitive and give me an answer based on that information. 

Once we have an IME report that we can utilize and we’re going to go to trial or to continue to try a workers’ compensation case, the deposition is set up and we prepare the witness.  A lot of times, this is the first contact I have with the medical expert.  I wasn’t involved in the report preparation, I wasn’t contacted by the witness when he received additional information, so it’s that half hour, 45 minutes prior to his testimony that gives me the opportunity to meet with the doctor, make sure that we’re on the same page, and make sure that we all know what the purpose is here. 

It, unfortunately, happens way too often that you meet with the doctor, and the doctor will for the first time say, “What was this case about?” or “What’s in my file?” or “Now, tell me where are we supposed to be going with this?”  My clients are paying a lot of money for this.  There’s nothing worse than the doctor using that prep time before the deposition to familiarize himself with the file.  At a minimum, the IME physician should know what’s in their file and know their report before I step into their office.  Sometimes there will be new information, and that preparation session gives the opportunity to address the new information. 

Some witnesses are very reluctant to be prepared.  They want to talk about the weather and current events.  They know the case, and it’s a challenge but they need to maintain focus.  An attorney needs to make sure that the examiner knows what is going to be asked and what points need to be clarified in their report.  Most importantly, I try to use that preparation time to alert the expert as to where I think cross examination is going to focus and to give them a heads-up if it’s going to be a particularly challenging counsel on the other side, or if it’s going to be particularly lengthy.

Finally, the testimony.  I’ve broken this down to the top five rules to giving persuasive testimony, and that’s the ultimate objective here.  Again, the best report in the world isn’t going to help you if you can’t back it up or you can’t persuade a judge or a jury. 

Explain findings with lay terms and give examples.  One of the things that we often see is IME physicians indicating non-anatomic findings.  Well, a lot of people don’t know what that means.  I had one doctor explain it pretty well.  If somebody injures their right knee and they come in with right-knee complaints, and the IME physician examines their right knee and they are complaining about it, that’s appropriate.  That’s anatomic.  However, because it’s part of a comprehensive examination, the physician is also going to examine their left knee, and if while examining their left knee, they complain about their right knee, that’s non-anatomic, which doesn’t make sense medically.  I think that explanation kind of puts it in perspective for most lay people. 

Be concise and hit the high points again.  As in their report, the IME physician should hit the high points and elaborate where necessary.  I think defense counsel will probe and will seek further explanation and further clarification where needed.  But from experience, judges and juries have limited attention spans.  I know in the workers’ compensation setting, we do trial depositions.  Then we hand the transcripts to the judge, and the judges groan if they see a transcript that’s three inches thick.  As an attorney, you just know that they aren’t going to read it; they are going to page through it.  So hit the high points. 

Remember it’s an opinion that the expert is ultimately there to give.  It’s the opinion that is going to wrap everything up.  The IME physician’s opinion is within a reasonable degree of medical certainty and in workers’ compensation, that has somewhat of a different meaning than in liability cases.  We’re not tied to the same rules, and we’re basically asking, “Can you support what you’re saying?”  It’s not as strict a standard.  One of the frustrating things in taking testimony is where you have an expert who runs through the history and runs through the exam and explains things and everything is just very elaborate, and then you say, “Doctor, do you have an opinion within a reasonable degree of certainty and what is that opinion?”  And it’s yes or no, and then it ends there.  And a lot of times, especially when it’s a written transcript, the judge will fast forward to that opinion question, and that’s where I want the examiner to elaborate and that’s where I want them to tie it all together and that’s where the one-word answer doesn’t necessarily do it. 

During cross-examination, listen to the question, answer the question that is asked, and then use it as an opportunity to advocate.  I think a lot of IME doctors and a lot of experts look at their job as finished: they got through direct, they gave their opinion, and now they just want to get through this cross to get this over and done with.  I think the best testifiers are those who use cross examination as the opportunity to reinforce their opinions, take the questions and turn them on the plaintiff or the claimant’s counsel, and use this as another opportunity to drive home your point.

The most important rule – and I cannot stress this enough – is stay cool, stay calm, stay collected, and do not argue.  I had a deposition recently where direct went beautifully.  The doctor explained his opinions, everything was concise and consistent, but five minutes into cross examination, he completely lost his cool, was fighting with the plaintiff’s attorney, and it just does more damage than you could possibly imagine.  So if IME physicians are going to put themselves into this setting, they should not allow themselves to be goaded.  That’s what cross exam is going to try to do, so maintain your cool. 

An Attorney’s Perspective on IMEs:

Thomas Grier, Esquire

I put together a list of things that I found helpful over the years in working with IMEs, and I’ll try to suggest some things that are helpful or that I have found to be helpful in the past.  First, for a plaintiff and a defendant, one needs to select a physician who will ultimately testify, and I think it’s probably helpful to think of where this case is ultimately going to go, which is in front of a judge or a jury.  It may not get there, but you want to be ready for it if it does happen. 

From our perspective, our first choice is usually a treating physician.  A treating physician may not be the appropriate person to have testify, and you may want to select a specialist.  There are a couple of ways to go about it.  One, there is a service that will find a physician for you.  My experience has been that I’ve been better off with referrals from friends or acquaintances.  There are lawyers on both sides, the plaintiffs and defendants, who I am friendly with who will share with me who they think are good doctors.  But there are also doctors who will tell you that Dr. so-and-so is good for this or she’s good for that.  That I find to be the most helpful because the doctor or the expert can be an awful lot of help, and if you look at his or her purpose as being more than just sitting in a chair and testifying, but educating, helping, and making suggestions along the way, you can get a lot out of an expert other than just testimony or an opinion. 

I think it’s important that you find somebody you are comfortable with and that you set the ground rules at the beginning.  Find out whether the doctor is flexible in terms of time and find out whether he or she is going to get upset if trial dates get moved, if he or she is going to be available in the morning or the afternoon, etc.  Those are things that you can generally get set at the beginning, and if you know you are going to have a problem with somebody’s schedule and you know that this person is only going to testify by videotape, you may or may not want to keep that person as your expert. 

Jumping ahead to that, there are three ways for us as trial attorneys to present an expert’s testimony: we can do it live, and most of the time we want to do it that way, but there are some times that we can’t; we can take a videotaped deposition; and sometimes we can just have the transcript read. 

There are times, when you might think at the beginning that you want to have Dr. X come in and testify,” but he’s a hideous person.  We had a case a couple of years ago with a family physician who was a really good doctor, well spoken, very intelligent, and made a great witness, but he weighed about 350 pounds, so we took his videotape deposition, and we had a dark backdrop so he looked almost normal.  Several years ago we had a cardiologist from the old PCOM, and the defense attorney and I were good friends.  We rode out to the deposition together, and he was asking me on the way up, “Why are you taking his deposition?  Why don’t you bring him in and videotape?”  So we got to the doctor’s office, and we took his testimony.  We were driving home, and he told me that he knew now why I was doing it that way, because the guy looked like John Candy, and you can have some attractive, well-spoken person read that testimony at a trial. 

Now, obviously the best thing is to have somebody come in and testify live, but you want to make sure that that person, when he or she does come in, is going to want to be there and want to help and is not going to be a giant pain in the ass to have to come over to the courthouse for an hour.  Because it shows.  People can tell whether a witness is sincere or not.  Try to get to know your expert, be friendly.  These people can be very helpful and guide you as you work through a case.  Don’t be shy about asking questions of your experts.  Don’t be shy about asking for his or her time.  I found that a lot of these folks, even though they may not be at teaching institutions, like to teach.  They like to instruct. 

I like to teach and see the light bulb go on, and I think a lot of folks are like that.  Some of you may know Dr. Fillinger, a pathologist; he helped me with a case a few years ago, and I went to see him several times.  He loved just walking through what happened to my client.  When he had a question, he’d pick up the phone and call another physician and ask if they thought this was possible or this or that.  He helped me to understand exactly what had happened so that I could speak intelligently about it, and that’s important too, that you understand the mechanism of the injury or the mechanism of the condition, so you can speak intelligently about it and you can ask the right questions or sort of go in the right direction.  It might even lead you from one expert to another because the specialty is more appropriate for when there is an ultimate testimony. 

You need to be careful about your correspondence.  There are a couple of things.  One, is don’t be familiar.  You may have known someone for 20 years and perhaps even seen the expert socially, or you’re neighbors.  But keep in mind that anything you put in writing is probably ultimately going to be seen by the other side and the judge or the jury as well.  So don’t be familiar.  My letters to Dr. Walker are Dear Dr. Walker, not Dear Jasen.  Somebody might ask a question or that might prompt somebody to ask the question, “How well do you know the plaintiff’s attorney?” 

Questions come up about how biased this expert may be if the expert and the attorney socialize.  It’s a professional relationship between the expert and the attorney, so it should appear to be that way.  That is the sort of thing that ultimately somebody is going to hear or see, and I’ve always thought IME is a misnomer.  But people talk about IMEs as somehow mythically making the person who’s performing the evaluation independent.  I recently received a note from a defense attorney telling me that he’s enclosing a questionnaire forwarded by “Dr. X, our neurologist,” who will be conducting an IME on your client on February 7, 2002.  Now, our and independent don’t belong in the same sentence.  Sometime, somebody is going to see this, and when the doctor testifies, he is not an independent physician.  He’s their doctor, so how good is his opinion? 

Don’t ask an expert to do too much, but some experts know what they’re doing and get out of the way.  There was an orthopedist who practiced in Philadelphia a few years ago.  He knew exactly what he was doing.  The thing with him is that he knew to get out of the way.  Let them do what they do, and let them do it well. 

There are other experts who think they know what your job is, and they tell you.  You have to sense that in the same way that you know you’ve got somebody who knows what he’s doing or what she’s doing, you may also have someone who doesn’t really know what he or she is doing.  You have to be careful of physicians or experts who think they know what you’re doing better than you do.  It’s your obligation to prove something at some point either to the judge or the jury.  You know the elements of your claim and how to get at them.  You don’t need a neurologist telling you how to ask a question or what the jury really wants to know.  Your job is to know what the jury wants and needs and has to have and to get the expert to report those facts. 

Make sure you understand the anatomy.  That’s one thing that working with an expert will allow you to do.  You will understand what the hemothorax is, and you’ll be able to explain it in a way that a lay person or a judge will understand.  I’ve found it helpful if I can explain something, and I’m not a physician and didn’t go to medical school or take anatomy, but if I can explain something at home to my wife or to other people in the office, then I can explain it to a jury.  If I can’t do those things, then I don’t have any business asking questions of a doctor who’s going to be testifying because I’m really not going to understand what he or she is saying. 

Don’t be afraid to legally guide your expert.  Often, when an expert report is first written, it’s a draft.  The doctor or the expert will ask the attorney if all questions raised by the attorney have been answered.  In working with the expert, I’m not telling the expert what to say, I’m just making sure my questions are answered.  I know from working with Jasen on occasion, that he’s been asked to say things he doesn’t believe and that he will not do so.  You don’t really want to do that with your expert.  If your expert doesn’t believe what he or she is saying, it’s going to come through.  The jury is going to see it and sense it.  You want your witness to be sincere and believe what it is that he or she is testifying about. 

The one instance I was aware of with Jasen, he refused to be a witness for that fact.  In fact, he stopped doing work for them.  I think that’s probably helpful in terms of reputation. Ultimately, it doesn’t serve a case to have somebody come in to say something that he or she doesn’t believe.  Sometimes it may work, but my sense is that judges and jurors sense that that doctor really didn’t believe what he or she was saying. 

Sometimes the experts are sophisticated about the legal issues and they know how to count sheep with the things that they say, but sometimes they don’t and you have to make them aware of legal issues.  You have to know that sometimes the rules in states are different.  What you are saying in New Jersey may not be good enough in Pennsylvania and vice versa.  For example, does the doctor need to say that A caused B, or does he or she need to say that A increased the risk for B to happen?  There is a difference in those things that sometimes can make a difference whether that doctor ultimately gets to testify or gets to put that opinion to a jury. 

When getting ready for the witness to testify, I almost always will meet with him or her in advance, sometimes a week or two before, sometimes longer than that, it depends on scheduling.  But I sit down with the witness, and I go through what it is that I’m going to ask him or her to make sure the witness is comfortable with what I’m trying to get at.  But also the witness can help me with which direction he might go with the question.  Oftentimes what we do is go through it, and the doctor knows what I’m going to ask, and I know what the doctor is going to say.  I try to anticipate where the other side might be going so the doctor doesn’t get surprised.  Sometimes I have to go back a second time because the doctor just didn’t like the way the testimony was set up or I didn’t like the way the doctor was approaching it, so we’d go back a second time. 

What we really want to get to is the point when the doctor or expert comes in to testify, and he knows what I’m going to ask, and I know what the doctor is going to testify about.  That’s no different than any other witness you have at trial.  You want to make sure they’re ready.  I want to make sure the doctor understands what point I’m trying to make and how I’m trying to get there, because sometimes the doctor will have some suggestions to help me. 

It’s usually helpful to remind the doctor about a reasonable degree of medical certainty or a reasonable degree of professional certainty if it’s not a physician.  Sometimes they know about those things and sometimes they don’t, but you don’t want to take for granted that the doctor, even if he or she has testified on many other occasions, really understands what this is all about.  I’ve found over the years, at least from my perspective, the choice of the physician to perform an evaluation or examination really tells me where the case is going. 

I’m sure you all know that on both sides, there are doctors who will say anything.  You’ll get a notice that Dr. so-and-so is going to perform an IME, and you’ll know that the doctor was chosen with the idea that he or she was ultimately going to testify in front of a jury.  The lawyers know that the opinion is worthless, the judge knows that the opinion is worthless, but the doctor is going to testify.  Some doctors are very good.  Some aren’t so good at testifying.  Some are very convincing, and some are not.  You can often tell when you see the same orthopedic surgeon who doesn’t practice anymore and just examines people for insurance companies.  He’s not there to provide an independent opinion.  He’s there to provide a defense opinion. 

I was asked recently, would I want someone with good credentials or a good performer.  My first thought is often you can get both.  If you can’t get both in the same person, I would take the good performer.  Credentials seem to sort of sound the same.  Doctors have CVs that run onto 40 pages, and oftentimes, the opponent will stipulate to the witness’s qualifications so that the jury doesn’t get to hear all of that stuff anyway.  So if you have somebody who looks and sounds pretty good and is sincere about his or her opinion, that’s the person I would go