Hypothetical Questions and Treating Physicians

Is there a limitation upon hypothetical questions that can be posed to treating physicians? This question came up in May, 2013 during a treating physician deposition I took.

To set the scene, this particular treating physician exercised his right to have personal counsel present. Most have been through this process so many times they do not exercise that right but this one did. It changes the dynamic of the deposition, but not for my questioning. The key question was, where the treating physician did not wish to be a medical expert in the case, could hypothetical medical questions be posed to him? Fortunately, DC Bulla was available at the time and graciously agreed to resolve the issue via a telephone call.  The result?  It seems hypothetical questions are appropriate even when the expert does not want to be an expert.

Finally, please note counsel involved remained professional throughout. Each vigorously asserted their position but did so professionally, permitting a productive deposition.

Part One: Don’t Talk to My Client:

The deposition started with an eight page debate between the doctor’s personal counsel and plaintiff’s counsel.  The witness had not even been sworn in because counsel wished to make preliminary statements. The most relevant part is when the doctor’s personal counsel indicates the doctor does not want to be and is not an expert for the purposes of this case.

5:23            MS. ALEXANDER:  Right.  And as counsel for the
24   witness, it would be my instructions to both counsel that
25   they should have no contact with my client separate and
6:1   apart from here, today, in the deposition, and any and all
2   attempts to reach him on an ex parte basis should go
3   through my office. And he’s not willing to act as an
4 expert witness on behalf of this matter and has not been
5 so retained by any party, so he will not be having
6   ex parte communications with anyone, in other words.
7             MR. ANDERSON:  And this is just sort of a
8   conversation, I guess.
9             Ordinarily, a doctor can speak with an attorney
10   who has been retained by a patient, and he certainly has
11   the right to have any ex parte communications with me,
12   given that I represent [plaintiff/patient].  Now, if he’s more
13   comfortable going through counsel, that’s a choice the
14   doctor can make, obviously, but if that helps to
15   clarify –
16             MS. ALEXANDER:  At this point, he’s been
17   subpoenaed to appear here today for deposition. He has no
18 desire to be retained as an expert, nor has he been
19 retained as an expert by either side, and so his
20   involvement here today is strictly for purposes of this
21   deposition.  Any future attempts to reach the physician on
22   behalf of any party should go through my office, as his
23   counsel.
24             MR. ANDERSON:  Okay.  And I understand that.
25   That’s at the doctor’s — that’s at the doctor’s request,
7:1   as I understand it.
2             MS. ALEXANDER:  Yes.
3             MR. ANDERSON:  He certainly has the right to do
4   that.
5             I guess what I was explaining — if you haven’t
6   been involved in treating patients for injuries that are
7   the subject of litigation in the past, you are allowed to
8   talk with counsel of your patients, even outside of a
9   deposition setting or something like that, if you so
10   choose.  I mean, that’s really your choice.  The only
11   prohibition would be discussing your treatment of your
12   patients with people who do not represent your patients;
13   for example, defense counsel in this case outside of a
14   deposition setting, if that helps to, you know, kind of
15   explain usually how this process works.
16             MS. ALEXANDER:  Counsel, just to clarify,
17   because he does not wish to be retained as an expert and
18 he has not been retained as an expert by your client or by
19 opposing counsel, any and all attempts by counsel to reach
20   him would be improper at this point if not coming through
21   my office.  If your patient — if your client, whom was
22   his former patient, wishes to schedule an appointment and
23   be seen by a physician for his medical needs, certainly
24   I’m not standing in the way of that, but simply you
25   picking up the phone and giving him a call to discuss the
8:1   case, no.  That should go through my office.
2             MR. ANDERSON:  I’m not disagreeing with that in
3   light of the doctor wanting it to be that way, but the
4   distinction of, you know, whether someone has been
5   retained officially to act as an expert witness really
6   doesn’t have any impact on a doctor’s ability to hold
7   communications with counsel for his patient, if that’s
8   what he would choose to do.  But this is all academic, I
9   guess, just a discussion at this point.
10             MS. ALEXANDER:  We’re scheduled for an hour, so
11   let’s get started, and he needs to be sworn.

Part Two: The Reluctant Expert Can Still Be Asked Hypothetical Questions:

My questioning did not last long, but got what I needed. At this point Plaintiff’s counsel is attempting to rehabilitate the doctor. It was not going well because the doctor did not want to be a medical expert in this case and was not particularly happy about the deposition. Counsel decided to switch tactics, instead of asking case specific questions, he would try hypothetical questions.

26:1        Q    Okay.  All right.  I’m going to give you a
2   hypothetical situation.
3             MS. ALEXANDER:  Counsel, he’s here as a treating
4   expert.
5             MR. ANDERSON:  Right.
6             MS. ALEXANDER:  He’s not here as a retained
7   expert, so hypotheticals are not allowed because he’s not
8   a retained expert.  He’s here simply as a treating
9   physician, so if you want to ask him questions about the
10   treatment he rendered to this patient, he can.
11   Hypotheticals, no.  And I would instruct him not to answer
12   for hypothetical, but if you want to ask about any and all
13   treatment he rendered to this patient, please feel free to
14   do so.
15             MR. ANDERSON:  Counsel, you are mistaken.  A
16   treating physician is fully entitled to answer questions
17   regarding hypothetical scenarios, hypothetical facts, and
18   I’m perfectly free to ask hypothetical questions of a
19   treating physician.  If you are going to instruct this
20   doctor not to answer, I will have to file a motion with
21   the discovery commissioner, asking for — to compel an
22   answer to my question; and I will be asking for attorney’s
23   fees and costs for having to file that motion, so I ask
24   you to carefully consider any instruction not to answer.
25             MS. ALEXANDER:  I’ve had this issue before,
27:1   Counsel, and one of the difficulties we have as treating
2   physicians is they get — we get dragged into these long,
3   drawn-out hypotheticals.
4             You’re here on behalf of the patient.  He has
5   the records of the patient in front of him.  He hasn’t
6   prepared to be an expert in this case; he hasn’t reviewed
7   all of the patient’s records to be an expert in this case;
8   he doesn’t have the benefit of having examined the patient
9   since these events occurred.  So as far as asking him
10   hypotheticals, it’s unfair to my client.  He’s not
11   properly prepared to do so, and it’s, frankly, a waste of
12   everyone’s time because should he be called to testify at
13   court, he’s going to have to say, “This was put on me on
14   the spot, and I wasn’t prepared to give the answer,” so
15   it’s to your benefit, is the reason I’m making this –
16   it’s to the best of my client; it’s to your benefit.
17             MR. LOWRY:  Mr. Anderson, do you want to cut it
18   short and just — if you want to be — given the trial
19   date, you can see if the discovery commissioner is
20   available by telephone, if that’s something you wish –
21             MR. ANDERSON:  Well, what we’re going to do if
22   you’re not willing to change your position is I’m happy to
23   call the discovery commissioner now and see if we can get
24   a ruling.
25             MS. ALEXANDER:  Again, he’s not prepared to
28:1   answer hypotheticals.  He doesn’t even have his chart
2   here.  You were given certain portions of the chart that
3   he was to review from the surgery center for this
4   deposition.  That’s all he reviewed.  He didn’t even have
5   his records here to review from 2008.  Those had to be
6   relayed to him from the counsel.  Now you want to ask him
7   hypotheticals about this patient.  He hasn’t seen this
8   patient’s chart.  He hasn’t agreed to be the patient’s
9   expert.  He hasn’t been retained to be the patient’s
10   expert, and to ask him hypothetical questions is patently
11   unfair, and it’s also irrelevant because he’s going to –
12   should he get called to trial, he’s going to say, “This
13   was sprung on me, I wasn’t prepared for it, and I gave an
14   off-the-cuff response, which now, in hindsight, with the
15   new information, may very well not be the case in fact.”
16   Do you really want to do that?
17             MR. ANDERSON:  Counsel, with all due respect –
18             MR. LOWRY:  Let’s just make the call because we
19   only have an hour.
20             MS. ALEXANDER:  Right.  The doctor’s only
21   scheduled an hour.
22             MR. ANDERSON:  Let’s go off the record.  I’ll
23   see if I can get the commissioner on the phone.
24             (Recess taken.)
25             (Commissioner Bulla joins proceedings via
29:1             conference call.)
2             COMMISSIONER BULLA:  Good afternoon, Counsel.
3   This is Bonnie Bulla.
4             MR. LOWRY:  Good afternoon, Commissioner.  You
5   have Michael Lowry for Defendants, you have Jared
6   Anderson for the plaintiff, and Christina Alexander for
7   the doctor, as his personal counsel.  The dispute is
8   between Mr. Anderson and the personal counsel, so I’ll let
9   them go ahead.
10             We have the court reporter transcribing the
11   call.
12             COMMISSIONER BULLA:  Thank you.
13             MR. ANDERSON:  Thank you very much.
14             Good afternoon, Commissioner.
15             COMMISSIONER BULLA:  Good afternoon.
16             MR. ANDERSON:  The dispute arose when I
17   indicated to the doctor that I was going to ask him a
18   hypothetical question, and his personal counsel
19   interjected an objection and indicated that she would
20   instruct the doctor not to answer my hypothetical
21   question, and the reasoning appears to be that since he is
22   not a retained expert for trial, she will not permit him
23   to answer a hypothetical question.
24             COMMISSIONER BULLA:  And the doctor is the
25   treating doctor?
30:1             MR. ANDERSON:  Yes, he is.
2             COMMISSIONER BULLA:  Okay.
3             MS. ALEXANDER:  Your Honor, Christina Alexander
4   on behalf of the doctor.
5             We have a partial chart.  We don’t have a
6   complete chart.  I allowed counsel to ask certain
7   questions regarding — this involves a hernia, and he’s
8   asked, basically, questions revolving the hernia treatment
9   my client rendered, but he was asking hypothetical
10   questions based on the facts of the accident.
11             My client did not provide any care and didn’t
12   even know about the accident, so I explained to him that
13   because we don’t even have the correct chart, we don’t
14   have the complete records, asking my client a hypothetical
15   is a waste of time because he does not have the records.
16   He doesn’t even have his complete chart here, and we were
17   only given partial records regarding what was to be
18   expected to be asked here at this deposition.
19             COMMISSIONER BULLA:  Why don’t you just place
20   your objection on the record, but there’s no basis to
21   instruct him not to answer.  Depositions are taken just
22   like trial testimony.  If your client was at trial, he
23   could be asked a hypothetical question.
24             MS. ALEXANDER:  And my client has indicated he
25   doesn’t wish to be a retained expert in this case, so he’s
31:1   only been noticed as a treating witness.  So he’s not
2   retained, and he has no desire to be retained.
3             COMMISSIONER BULLA:  But he’s still –
4   Ms. Alexander, he’s still an expert.  Even though he’s not
5   retained, he’s an expert.
6             MS. ALEXANDER:  Then I guess my objection –
7             COMMISSIONER BULLA:  He’s a percipient witness.
8   We changed the rules; remember?
9             MS. ALEXANDER:  Right.  He’s is a percipient
10   witness.
11             COMMISSIONER BULLA:  But he is an expert
12   percipient witness, and so he can answer those questions
13   that are within his specialized knowledge.
14             MS. ALEXANDER:  Even without the chart or having
15   any of the documents in front of him?
16             COMMISSIONER BULLA:  Well, then you state your
17   objection for the record, and if he can’t answer them, I’m
18   certain the doctor can explain that to the attorney asking
19   the questions.
20             MS. ALEXANDER:  All right.  Well, thank you for
21   clarifying that, Commissioner.

Moral of the story? Even reluctant treating physicians can be asked hypothetical questions. Counsel cannot instruct the witness not to answer the question, but that does not mean the doctor must answer the question.  He answered the questions here, but I suspect the treating physician could answer that he is unable to respond to hypotheticals and will only answer questions specific to this patient’s case.