Male 1: Not being prepared to defend your opinions, and we’re gonna be saying this. It’s really very simple. All of these opinions that you’re offering as an IME doctor are all well and good, okay? You’re doing your best to come up with these opinions, you take a history, you examine the examinee, you write a good report, and so forth. It’s typed up nicely, you have no typographical errors in it, somebody proofreads it, it looks good, you send it in, everything’s fine and dandy. And then lo and behold, and maybe 5% to 10% of the cases, you have to go to a deposition. Okay.
And what happens at the deposition? Well, we saw a few of the things yesterday, we’ll see some more today, you’re unable to defend your opinion, okay. So that means that you’re a paper tiger in my view. You can do a good exam. You’re a good doctor, right? You can write a good report, looks good on paper, but when it comes time to defending the opinion, you don’t have enough technical skill or experience in depositions to defend your opinion. Does that mean your opinion is wrong? Absolutely not, all the doctors yesterday had the right opinions. That’s what’s so shocking and that’s what’s so sad. They have the right opinions, but they can’t defend them so the law throws them out and the judge says, “Well, if the doctor can’t defend in their opinions, we can’t accept them.” And they ask a couple of questions to them and they fold up their tent and so forth. And that’s what happens.
So now the focus is no longer on the science, which is sad, it’s about the wordplay and the lawyers and the doctor who doesn’t stand up well into deposition and the people looking at the doctor and say, “Well, if he can’t defend his own opinions, then we can’t accept those opinions.” In fact, the opinions are probably 100% right but he doesn’t have enough experience defending them. Yes, sir.
Male 2: I just have a question or comment. I mean, I think one of the issues for physicians is that there’s a fear factor in the court system or the legal system.
Male 1: You’re afraid when you’re in court. I’m afraid when I’m in the operating room. Okay. It’s a fair trade. When I go in the operating room to have surgery on my right knee and it’s all swollen and they take the microphone down to protect their ass, they say, “Okay, we’re gonna be operating on your left knee,” and I jump up from the operating table and I say, “No, no, it’s my right knee, the one that’s all swollen,” I’m scared shitless, okay, because I already told them three times it’s my right knee and it’s this big, okay. And now the scalpel’s in the hand, and somebody’s saying…the microphone’s coming down and they say, “Okay, we’re gonna be operating now on your left knee.” And I say, “For God’s sakes, no, that’s my one good knee. It’s my right knee.” Okay. So yes, there’s a fear factor.
Male 2: So like, you know, you mentioned yesterday the lawyers being kind of combative or, you know, being sarcastic and you can kind of say something back, like to what degree are you allowed to sort of retort back if they’re really being sarcastic when you’re down and you’re not being held in contempt or whatever they call it?
Male 1: Yeah. The question is how much of give and take should you have with the lawyer? And generally speaking, I’ll just give you…this is not a deposition class, but the more the lawyer yells, the softer you speak. You speak softly anyway, but that’s fine. The more they yell, the softer you speak. The nastier they get, the more cooperative and friendly you are. Okay. The more sarcastic they are, the more polite you are. Okay. Because two things happen. One thing, it infuriates the lawyer. He’s trying to get you mad, now you’re getting he mad because he’s using all these things and it’s not working. By the way, and you’re smiling when all this is going on. Okay.
So now he thinks he’s gonna get a rise out of you and make you look like an idiot and, in fact, who actually looks like the idiot? He does. You’re polite, you’re courteous, you’re smiling, and he’s running around ranting and raving and throwing things and yelling at you and you’re cool, calm, and collected. So that would be my answer. And let me suggest to you that defending your opinions is, you know, crucially important and I’m gonna suggest to you that you get training.
Excerpted from SEAK’s stream on-demand course, "IME Skills For Physicians: The Masters Program"