Vegas Personal Injury Law Blog

Recently, I reviewed a Federal  case that was posted on the Nevada Justice Association list-serve.  This 9th Circuit case interpreted Arizona law regarding the testimony of treating physicians. This decision answers the question:  When does a treating physician’s testimony morph him into an witnesses hired to render expert opinions? If a treating physician renders opinions that go beyond the usual scope of a treating doctor’s testimony, the proponent of the testimony must comply with FRCP 26 (a) (2), which requires a full-fledged expert report stating opinions and the bases for those opinions.

A treating physician is not considered an expert to render expert opinions when his testimony is confined his examination, diagnosis and prognosis of the patient. That testimony is not considered specially retained expert opinion.  But, once the lawyer for the claimant undertakes to elicit an opinion from the physician concerning whether or not a particular traumatic event caused the condition, as opposed to another cause, the physician has been transformed into the type of expert envisioned by the report requirement of FRCP 26.

Treating physicians are often confused about the difference between their role as a  treating physician and their role as an expert witness.

An expert witness is one retained to provide expert testimony in a case.  Generally, the treating physicians are excused from the requirement of this procedural rule requiring a party to timely disclose an exert witness.  A treating doctor may be provided with additional documentation by plaintiff’s counsel.  He may be asked to opine on matters outside the scope of treatment that he provided.  This may involve rendering opinions on the medical care rendered by other physicians.

Physicians are allowed to testify to opinions they formed in the course of caring for the patient.  As soon as the treating physician reviews bills and records outside of what is normally in their file, they become a hybrid expert.

The 7th circuit recently held that a treating physician, who is offered to provide expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in he course of providing treatment, is required to submit an expert report under FRCP 26(a) (2). The 8th Circuit requires the disclosure of a written report at any time a party seeks to have a treating physician testify concerning the causation of a medial condition, as opposed to merely the existence of a medical condition.

Therefore, it appears that a treating physicians are only exempt from the written report requirement when their opinions are confined to their  course of treatment of the patient.

The Nevada Rules of Civil Procedure provide for  expert disclosure dates deadlines for the exchange of initial expert disclosures.  Rebuttal disclosures are usually due 30 days  after the initial expert disclosure deadline.  Failure to meet these deadlines can be fatal to personal injury case.

So, the treating physician should always assume that his written report will be required in any normal litigation case.  Normal litigation involves those cases that are exempted from arbitration program, and involve damages in excess of $50,000.00.

In Nevada, in cases where damages have a value of $50,000.00 or under,  go first go into the mandatory Court Annexed Arbitration program.  If either side appeals, (assuming no exemption),  the case then automatically goes into the short trial program (one day trial). Although a report may not be essential in an arbitration or short trial case, a  report can be entered as evidence in the arbitration/short trial, and the physician does not need to testify.

If the case involves emergent care, chiropractic treatment or physical therapy, diagnostic testing and  treatment by a M.D. or a D.O., then the M.D. or the D.O. in heir discharge report should comment on causation,  the medical necessity of treatment of all of the patient’s providers, as well as and the reasonable and customary nature of the charges of all providers.

NRCP 16.1 requires the expert report to contain a complete statement of all opinions of the expert,  the basis and reasons for his opinions, the data or other information considered by the expert in forming his opinions, any exhibits or information that he reviewed to support his opinions, the qualifications of the expert, including a list of all publications authored by the expert within the preceding 10 years, the compensation to be paid for his review and testimony, and a list of other cases in which the witness testified as an expert at trial or by deposition, within the preceding four years.

Therefore, a treating physician’s perfect discharge report should cover the physician’s opinions concerning the causation of the patient’s injury (stated to a reasonable degree of medical probability), the medical necessity of the patient’s treatment and the reasonable and customary nature of the charges for all of the patient’s medical treatment. All physicians that are involved with treating  personal injury victims should have a current CV, testimony list, and fee schedule prepared for use in litigation cases.

Therefore, in most personal injury cases involving litigation, the treating physician will be considered to be  at least a hybrid expert. Treating physicians should look at the format for their narrative and discharge reports to see if it meets all of the requirements of an expert report as stated in this blog.

The right to jury trial arises by statute.  In most jurisdictions, where the value in controversy exceeds a certain dollar amount, the right to jury trial will be preserved.  Most personal injury auto accident cases that result in jury trials have some weakness.  In some cases there is a delay in obtaining medical treatment after an accident.  In some cases there is a delay in the development of symptom after an accident.  In some cases pre-existing conditions are exacerbated or aggravated and there is no new injury.  In other cases a person complains a pain without any positive diagnostic findings.  Many times we see severe injuries with very minor property damage to the involved vehicles.  Many of these difficult cases are tried and result in defense verdicts.  

Sometimes difficult cases go to trial with a surprisingly good outcome. 

Insurance companies will spend money to litigate these cases, because they know some personal injury attorneys do not want to incur the expenses to take them to trial.  Many of these difficult cases settle for a nominal amount before trial.  

Some personal injury lawyers will try these difficult cases.  It is difficult for personal injury lawyers to decide which personal injury cases that really should be tried.  

Sometimes these difficult cases go to trial, and the jury will simply not believe the plaintiff was injured.  Oftentimes, when there is a plaintiff’s verdict, the jury will cut damages for medical bills, wage loss and/or pain and suffering.  If a plaintiff goes to trial and the result is a defense verdict the plaintiff will, undoubtedly, be on the hook for attorney’s fees and costs incurred by the insurance company in defending the case.  This can result in a judgment against a personal-injury victim of tens of thousands of dollars. If there is no offer made to settle a claim, and the plaintiff  is judgment-proof, any downside financial risk to the plaintiff can be extinguished in bankruptcy.   

Insurance companies always like jury trials over bench trials (trials without a jury).   They know that their odds of a defense verdict are greater with a jury than with a bench trial.  Once one side requests a jury, the opposing side generally cannot change the case back to a bench trial.

Can a jury really be impartial?  There are certain rules that control jury conduct to keep jurors impartial.  In a jury trial, the judge instructs jurors prohibiting them from conducting any outside research while they serve on the panel.  They are prohibited from discussing their case amongst themselves prior to the close of evidence and  the start of deliberations.  They are instructed to set aside any prejudice or preconceived notions that could affect the outcome of their decision.  

Despite these judicial warnings juror conduct may not be perfect.  Jurors are not supposed to communicate with others about the case.  In this modern technological age the internet can be accessed by a cell phone.   After they leave the courtroom, despite the warnings many will seek access to internet sources and attempt to dig deeper into the case to get  information to share with their fellow jurors.  Recently on the news a juror in a federal drug case admitted to the judge and he was doing research on the case on the internet.  It was also determined that many other jurors were doing the same thing.  This resulted in a mistrial.  Jurors are not allowed to do their own independent investigations of the case.   They are limited  in their decision making by only  the evidence that is presented during the trial.  They can’t be exposed to any evidence which is excluded by the judge, and they can’t have  access to any information that can create bias or prejudice toward any party.  Some jurors just do not follow these instructions.

The legal system provides for “voir dire.”  This is a process by which prospective jurors are questioned about their backgrounds and potential biases and prejudices before being chosen to set on a jury.  Personal injury attorneys want jurors who have been involved in car accidents or have had a close family member who has been has been involved in an injury producing not-at- fault car accident.  However, it is likely that these jurors will not be selected to serve, because they will be preempted by the defense. 

Juries must deal with complex legal issues during their deliberations. They are instructed on the legal issue of proximate cause.  This legal concept is confusing to jurors.  Lawyers spend many hours in law school studying this legal concept.  Proximate cause inquires into the sufficiency of the  connection between the defendant’s action in the plaintiff’s injuries.  When there is an intervening event between defendant’s negligence and plaintiff’s injuries, the determination of whether defendant’s conduct was a proximate cause of plaintiff injuries turns on whether the intervening event was a foreseeable consequence of the defendant’s negligence.  Were there other factors that contributed to the injury?  Was there enough force associated with the accident to cause an injury potential?  Was the defendant’s negligence continuous up to the time of the injury?  How much time elapsed from the negligent act to the injury.  Expert witnesses used by both sides in auto accident cases often express opinions concerning causation and proximate cause.  It is not unusual in a jury trial to have an expert’s on both sides state diametrically opposed opinions. It is easy to see how jurors can become overwhelmed by all this and loose perspective concerning their job as jurors.

So not every act of negligence combined with the development of injury will result in an plaintiff’s verdict.  The defense will always take the position  that the injuries were not caused by the subject accident.  They will center their defense on delayed symptomatology,  pre-existing conditions and lack of injury causing potential.

One of the recent jury reforms is to allow jurors to asked witnesses questions during the trial.  This procedure is slowly gaining acceptance throughout our country.  In most cases, the jurors to write down their questions and the judge determines the admissibility of the question.  The judge will read the question to both counsel and allow them to object.  The jury and witnesses are removed from the courtroom during this process.  

Juror comprehension is strained by lengthy cases and complex evidence and intricate law.  Jurors in these cases can become dissatisfied with their participation and look for an easy decision based upon an insignificant event that occurred at trial that was not commented upon by either side.  

A jury’s decision making ability is not always entirely accurate. Once their verdict is entered, the legal system limits procedures to query jurors to determine if they correctly applied the jury instructions to the evidence and honestly deliberated on the case.  See, e.g., NRS 50.065. The general rule is that we cannot inquire into their decision making process.  Therefore, the decision to take an auto accident case to trial is not easy one.  Many juror factors come into play.  The plaintiffs need to know what they are getting into with a jury trial, so that they can make an intelligent and informed decision about any settlement offer made on their case.