The unfriendly doctor is typically either the family physician or a treating consultant who has unwittingly (and unwillingly) become involved in litigation.
Converting the unfriendly doctor is important in two respects. Firstly, it may influence the substantive evidence he or she will give. Secondly, the demeanour of the witness may change which will serve to influence how his evidence is received by the jury. After all, perception is reality.
I personally have dealt with many unfriendly doctors over the years and have witnessed many a physician do a complete conversion to the client’s benefit.
Communicate Empathy Lest we forget, family physicians usually see 40 to 50 patients a day every day of the week. They have no control over who they see, when they see them or why they see them. They are overworked and underpaid. Volunteer your concern that he or she must feel demoralized and helpless. I often will spend several minutes talking about the health care system or the doctor’s practice in a general way before I even mention my client’s name.
Talk Money Doctors are understandably concerned about the potential loss of revenue given their already squeezed finances. Remind the physician that their absence from the office at trial will be revenue neutral at worst. In light of the fact that there will be a substantial amount of preparation time involved in reviewing the patients records before trial, they will wish to charge somewhat in excess of what they would for a trial attendance alone.
Depending upon the physician, you may wish to offer advice with respect to an appropriate level of fees. Family doctors in particular are naive regarding attendance fees.
Advise the physician that you will personally guarantee prompt payment of their account.
Educate The Doctor About The Legal System Give the doctor as much detail as they wish respecting their day in court. They may not show it, but they are as afraid of being in a witness box as you are on the examining table. Identify courtroom protocol. Let the doctor know that usually he or she will have to wait outside the courtroom until they are called to testify unless there has not been an Order excluding witnesses. Be certain to tell them about your inability to ask leading questions and that your adversary is not so limited. Explain the order of questioning, where he or she will stand, and where the judge will sit. Emphasize the importance of eye contact with the jury.
Meet With The Physician Personally This is the most obvious and most important way to overcome the doctor’s antagonism. The doctor will be much more reluctant to adopt a hostile approach if he or she is looking you in the eye. Inform the doctor’s office in advance that you wish to meet with the doctor at the end of his or her usual work day preferably (or at such other time as is otherwise convenient for the doctor.) Inform the doctor’s office of the length of time that you anticipate taking.
Place A Personal Call To The Physician For recalcitrant physicians, it is important that you be seen as having as much personal involvement as possible. Doctors will have a perception of being important if an approach is made directly from the lawyer. This would be an impossible task if you were to do this for all doctors on all files. Recognize the need to do this in some cases. If you anticipate trouble with the doctor, then the earlier personal communication is made, the better. Encourage your clerk to get on first name basis with the doctor’s secretary. Know that the doctor’s secretary is important. Your messages will be treated in a punctual manner if you establish a good rapport with the secretary.
Help Them Overcome The Fear Of Expressing Opinions Acknowledge that there are other physicians involved in the case who may be thought by some to be better informed or have greater expertise with which to express an opinion. However, advise the physician that he or she brings a unique perspective to the case. For example, for a family physician or a consultant referred by the family physician, it is important to note that they are actually treating the patient and are not merely expressing an opinion as the defence doctor is doing.
Review the other opinions with the doctor. Identify on what basis the physicians agree and disagree. Encourage the doctor to have the confidence to stand up for his or her opinion
Establish That You Are Well Prepared The physician will appreciate discussing the file with someone who is knowledgeable. If you are well acquainted with the patient’s symptoms and medical treatment, you will gain the confidence of the physician. You should have a thorough understanding of the medical issues and may wish to bring along some authoritative text or article if appropriate. Often, the doctor will have to be directed to his or her entries. You will have read the file in advance of the meeting and will have highlighted entries which you wish to discuss with the physician.
Timing Is Everything You will have to discuss how scheduling a doctor’s testimony presents many challenges. Explain the concept of a “sittings” and how difficult it is to anticipate the length of testimony of various witnesses. Assure them that you will attempt to schedule it on one of their “good” days and not on one their “bad” days. As the trial date approaches, you will advise them as to the likelihood that their evidence will be required on a given date. Tell the doctor that he or she should not change their schedule; rather, they should continue to schedule appointments as if the trial were not proceeding. It is only on the day before the evidence is to be given that he or she should cancel those appointments.
Explain What The Physician Might Expect From The Defence Be certain to distance yourself from your adversary. Often defence lawyers serve summons on plaintiff’s doctors. At times they will also request to speak with them and send them literature or other doctors’ reports and ask that they review them in advance of the trial.
You might be asked by the unfriendly doctor to provide some informal advice on what to do with the material when it comes in. I make it a practice of telling doctors that I can’t give them legal advice but that I would not release anything to the defence before trial. Advise the doctor that you have already followed all of the rules of disclosure required by the Rules.
Often defence lawyers are less than tactful in how they approach plaintiff’s doctors and you can use their abruptness to your advantage.
Arrange Transportation For Trial Advise the physician that you would be happy to arrange for transportation where the physician is coming from out of town. I am often asked and accede to the request to use a limousine service as it provides a comfortable environment for the physician to review the file. This is particularly important for consultants who you suspect, ( notwithstanding anything you do or say) will not have reviewed the file in detail otherwise prior to trial.
Prepare the CV Family doctors will often not have a curriculum vitae. You will have to make one up for them by inquiring of their relevant training or experience.
Remind The Doctor Of The Plaintiff’s Plight Before the doctor is able to express any adverse comments, remind the doctor of his or her importance to the health and well being of the patient. Let the doctor know how totally dependent the client is on his or her advice and assistance and how happy the patient has been in the past to put his or her complete trust and faith in the doctor.
It Is The Fault Of The Defence Emphasize that you are having a trial and are meeting with the doctor because of the defendant’s actions. Because the defence is not treating your client fairly, you have no choice but to proceed to trial. Let the doctor know that the defendant has not offered fair compensation.
Depending on the situation, you may wish to tell the doctor that the defence has offered nothing for any income loss because the defence alleges the plaintiff can work or has not lost any competitive advantage in the workplace. This may arouse indignation in the physician. You may then receive the doctor’s internal commitment to prove the defendant wrong.
Accommodate The Doctor Beyond Belief Provide your home phone number and your law clerk’s home phone number. Do anything the doctor requests, within reason, and keep the lines of communication open- open – open.