Preparing to depose the opposing medical expert

An opposing expert's report does two things. It states what the record shows, and it draws conclusions from that. The conclusions are opinion and get attacked on qualifications, methodology, and bias, which is the part of deposition prep most lawyers already know. The factual statements are different. Each one is a claim that a specific page of the record says a specific thing, and each one can be checked. That checking is the most reliable way to weaken an expert, and it is the part that gets skipped when the record is 2,000 pages and the deposition is Thursday.

Start from the report, not the record

Read the report first and mark every factual assertion about the medical history: dates, diagnoses, what a provider found, what the patient said, what imaging showed, how long treatment lasted, what came before the incident. Number them. A typical examiner's report carries somewhere between forty and a hundred of these. That numbered list is the structure of the deposition, because each item is either supported by the record, contradicted by it, or absent from it.

Run each assertion against the chronology

With a full chronology of the record in hand, the check is mechanical. For each assertion, find the entry. Three outcomes are worth pursuing.

The assertion is wrong. The examiner writes that the claimant first reported knee pain four months after the collision; the ED nursing note from the night of the collision records knee pain. This is the most useful material a deposition produces: a specific page, a specific date, and an expert who either did not read it or read it and left it out.

The assertion is unsupported. The examiner writes that the claimant "had a long history of similar complaints" and cites nothing. Ask for the page. If there is none, the opinion built on it has no foundation, and the examiner has to say so on the record.

The assertion is selective. The examiner quotes the one visit where the patient reported feeling better and omits the six that followed where they did not. The chronology shows the pattern; the question is why the report shows one point on it.

Check what the examiner did not review

Most reports list the records reviewed. Compare that list to the production. Records the examiner never saw cannot have informed the opinion, and an opinion on causation formed without the prior imaging, the therapy notes, or the primary care chart is an opinion formed on part of the record. Ask the examiner to confirm what was and was not reviewed early in the deposition, before the substantive questions, so the limitation is established before the opinions are.

Look at the examination itself

For an IME report, the exam section is a second set of checkable facts. Compare the examiner's findings with the treating providers' findings closest in time. Range of motion measured at 40 degrees by the treating physical therapist a week before and reported as full by the examiner is a discrepancy the examiner has to explain. So is an exam that took eleven minutes by the claimant's account and produced four pages of findings.

Build the questions from the chart

The strongest deposition questions to a medical expert are the ones that begin with a page. "Doctor, turn to page 412, the emergency department nursing assessment from the night of the collision. Read the third line." Questions built this way do not ask the expert to agree with a characterization; they ask the expert to read what a colleague wrote at the time, and then to reconcile it with the report. Sequence matters. Establish the record first, then the report's version, then the conflict. An expert who is asked to reconcile before the record is established will explain it away.

Separate fact from opinion in the record too

Examiners rely on treating providers' language, and treating providers write loosely. "Injury consistent with MVA" in a chiropractor's intake is not a causation opinion, it is a history the patient gave, restated. Know which statements in the record are findings, which are the patient's account, and which are a provider's passing characterization, because the examiner's report will have blurred them and the deposition is where they get separated again.

The medicine has to be right

None of this works if the person doing the comparison misreads the record. A lay reader can find a date discrepancy. Recognizing that the examiner's statement about "no objective findings" ignores a positive straight-leg raise documented at three visits takes someone who knows what that test is and why it matters. Firms that handle this in house use a nurse or a physician consultant. Firms that do not order the comparison from a clinician, in the form of a deposition guide.