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  1. #1
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    Apr 2021
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    Default Doctor Not Willing to Testify

    Hello all. My surgeon is no longer willing to testify because he has been "burned" too many times in the past. He indicates each time he is told it will take 4 hours, it ends up taking 8 and then all of his other appointments are behind and need rescheduled. In addition, he said that he is told it is only 1 time.... but it has always turned into multiple depositions or being requested into court. He said he will answer any questions by written response and of course we would have access to all of the medical file.

    Has anyone else experienced this, where their Expert Witness is NOT willing to do the deposition? We asked our Attorney if we can just Subpoena him into court and she said she absolutely will NOT do that because it will upset the Doctor.... well, what other choice do I have? He would be under oath, so even if upset, he has to speak the truth, correct?

    Any insight or experience would be greatly appreciated.

  2. #2
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    831 East Morehead St., Ste 355, Charlotte, NC 28202
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    Default Re: Doctor Not Willing to Testify

    That is ridiculous. What state is your case in? I have been a litigator for over 30 years and I have never heard of a doctor's depo taking 8 hours. I have taken hundreds of depos in my career and I am hard pressed to recall one taking more than 2 hours. Who is paying the doctor for 8 hours of his time? Good grief. There is no good reason for it to take anywhere near that long.

    Your lawyer is unwilling to subpoena the doctor to court because (a) the expense and (b) it really will piss off the doctor, and the last thing you want is for your doc to be mad at you when he testifies about your case, and (c) it would disrupt the doctor's day even more than a depo. But he probably can force the doctor to give a depo. However, that has to be handled very carefully.

    Yes, the doctor would be under oath, but the most important stuff coming out of his mouth will be subjective-- his expert opinions on things like medical causation and disability. So "truth" is a bit of a relative thing. "Truth" in that context is whatever the doctor testifies that it is. Therefore, you don't want the doctor in a bad mood, angry at you or your lawyer, when he testifies.

    But doctors, like any other citizen, have an obligation to testify when needed on a civil case. Most Medico-Legal guidelines in the various states put an obligation on doctors to cooperate with legal proceedings as necessary. The doctor may prefer not to give a depo, but he is sort of professionally obligated to cooperate, and your lawyer's task is to figure out how to make that happen without pissing off the doctor.
    Last edited by complwyr; 04-21-2021 at 03:13 PM.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  3. #3
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    Apr 2021
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    Default Re: Doctor Not Willing to Testify

    We are in Ohio. We are being told the cost we have to pay for his depo is approx $5,000 which we didn't argue with because, what are we to do? Not pay for his time. I don't know, we just feel like we are being put in a bad position. Our attorney says we can't go to court with our expert depo and our Doctor / Surgeon says he won't do it.... which leaves us in the middle and our Attorney saying "well if he won't testify, I have to notify the judge and attorney general that we do not have an expert witness and try to salvage a settlement. Which in our eyes we thought, well wait a minute... how can that be the "only" option, and why we then said to subpoena him. Thinking that would be our only other option.

    Our attorney says that my case is so complex that it would require 4 to 6 hours for her to depo him and the attorney general to cross examine him.

    Can you direct me to any Ohio Revised code or law that would show he is obligated to testify? Or any other advice you can provide for me to get him to change his mind? I was standing along a highway in Columburs OH when a lady lost control and hit me as a pedestrian in Sept 2015. My 1st 2-level fusion was March 2019 (after numerous PT, Injections, etc) then I just had to have an SI Fusion this past February. We had my 8 week post-op appointment yesterday and was able to speak with my surgeon face-to-face and that is when he voiced his objections because he has had his whole day ruined before from other depo's.

  4. #4
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    Default Re: Doctor Not Willing to Testify

    Do you need him in a PI case or a workers' compensation case? In many states, it is easier to get a doctor depo, and cheaper, in the work comp case. In the PI case, the doctor is a free market trader, and can charge whatever exorbitant fee he wants. In civil trial testimony, however, the trial judge might have authority to set his expert witness fees. But this is a conversation you need to be having with your lawyer.
    The North Carolina Court of Appeals has held that "In contested Workers' Compensation cases today, access to competent legal counsel is a virtual necessity." Church v. Baxter Travenol Labs, Inc., and American Motorists Insurance Company, 104 N.C. App. 411, 416 (1991).

    Bob Bollinger, Attorney and Board Certified Specialist in NC Workers' Compensation Law

  5. #5
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    Default Re: Doctor Not Willing to Testify

    Quote Quoting complwyr View Post
    Do you need him in a PI case or a workers' compensation case? In many states, it is easier to get a doctor depo, and cheaper, in the work comp case. In the PI case, the doctor is a free market trader, and can charge whatever exorbitant fee he wants. In civil trial testimony, however, the trial judge might have authority to set his expert witness fees. But this is a conversation you need to be having with your lawyer.

    This is for the Workers Comp case. Our trial is scheduled for October of this year as long as they don't push it back again. The Employer dropped out of the claim, so it is us against the AG.

  6. #6
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    Default Re: Doctor Not Willing to Testify

    Quote Quoting Chloe@12 View Post
    This is for the Workers Comp case. Our trial is scheduled for October of this year as long as they don't push it back again. The Employer dropped out of the claim, so it is us against the AG.
    This makes zero sense!.....The AG?.....Your case is against your employer for your % of loss.....
    It sounds like you have a 3rd party case?

  7. #7
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    Default Re: Doctor Not Willing to Testify

    Quote Quoting airdale View Post
    This makes zero sense!.....The AG?.....Your case is against your employer for your % of loss.....
    It sounds like you have a 3rd party case?
    The Employer is the City of New Albany so not sure if that is different than a private employer?
    Notice filed:

    "Now comes the Defendant/Appellee City of New Albany, through the undersigned, and hearby files this notice that it has withdrawn its Answer. The City takes no position on Claimant's right to participate in the Workers' Compensation Fund of Ohio for the requested condition(s), and takes no position on this Appeal. Accordingly, the City will not be attending pre-trial, trial or any other judicial proceedings for the adjudication of Plaintiff's appeal in this matter."

    We are being told by our Attorney that they do this when they already meet their limit or something with their BWC insurance; therefore, the outcome of our case does not affect their bwc rates so now they are no longer worried about what happens. Isn't it amazing, they can fight us all the way here and then just drop out.

  8. #8
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    Feb 2013
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    Columbus, Ohio
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    Default Re: Doctor Not Willing to Testify

    I am a licensed Ohio attorney with over twenty-five years of experience in the area of workers' compensation. I can tell you that this problem is not uncommon.

    You, as the injured worker, are the plaintiff in your case. As a plaintiff, you have the burden of proof. In order to meet that burden, you are required to admit medical testimony in support of your case. The failure to do so is grounds for dismissal.

    This "proof" comes in the form of your doctor's testimony. Your doctor must testify that, to a reasonable degree of medical probability and certainty, your diagnosis was caused by your work-related injury. You can compel the testimony of a physician via a subpoena, but the physician is not required (by law) to hold the opinion that you want or need. You will also be responsible for paying for the physician's time.

    Unless you know another physician who is willing to testify and express the opinion that you need, then I would strongly urge you to follow your attorney's advice.
    http://www.ohiobwclaw.com
    Serving Injured Workers across Ohio

  9. #9
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    Default Re: Doctor Not Willing to Testify

    Quote Quoting ohiobwclaw View Post
    I am a licensed Ohio attorney with over twenty-five years of experience in the area of workers' compensation. I can tell you that this problem is not uncommon.

    You, as the injured worker, are the plaintiff in your case. As a plaintiff, you have the burden of proof. In order to meet that burden, you are required to admit medical testimony in support of your case. The failure to do so is grounds for dismissal.

    This "proof" comes in the form of your doctor's testimony. Your doctor must testify that, to a reasonable degree of medical probability and certainty, your diagnosis was caused by your work-related injury. You can compel the testimony of a physician via a subpoena, but the physician is not required (by law) to hold the opinion that you want or need. You will also be responsible for paying for the physician's time.

    Unless you know another physician who is willing to testify and express the opinion that you need, then I would strongly urge you to follow your attorney's advice.
    Have you ever subpoenaed a physician? Our attorney attempted to come to an agreement with the physician that the depo would stay within a 3 hours time frame; however, he is still only interested and agreeing to answer depo by written question / answer format. He is the only physician that I know of because he did my 2 back surgeries and agrees that for my age, trauma or a birth defect is the only way my injury would be present. Obviously its not a birth defect since I never had issues prior to the accident and had an unrelated ct in the past that didn't show anything.

  10. #10
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    Columbus, Ohio
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    Default Re: Doctor Not Willing to Testify

    Quote Quoting Chloe@12 View Post
    Have you ever subpoenaed a physician?
    No. If a physician tells me they don't want to cooperate, then I believe them. It is difficult enough getting favorable testimony from a cooperative witness, let alone one that does not want to cooperate.
    http://www.ohiobwclaw.com
    Serving Injured Workers across Ohio

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