Re-Peers, Depositions of Peers, and Some Questions

A couple of months ago I tried to do some research on 3117(a)(4). I was more or less trying to understand the impetus behind the provision. As it turns out, I’m terrible at researching this. I had a research librarian trying to help me out and I really couldn’t get anything on it. That said, I’m pretty sure it is a patient treating mechanism, not a money saving mechanism. The only reason to have a rule that allows for doctors’ depositions to be used at trial is to keep them out of court and in their offices, treating patients. Lately, a few insurance companies have been using it as a money saving mechanism. They have one doctor in their (ins co lawyer’s) office all day doing depositions for various cases–the doctors get paid a fixed (lower) rate, and the insurance companies don’t have to pay the doctors to appear at trial. At trial, the insurance company lawyer reads the deposition into the record. There is no doubt that CPLR R. 3117(a)(4) is being used as a money saving mechanism. From experience, I can tell you that the doctors are available to testify. There are days where they are in court to testify on over five cases for various insurers. Do I blame them? No, everyone needs to make a living. The point is, they aren’t treating patients. The depositions aren’t allowing them to treat more patients. They still come to court and testify on cases where depositions weren’t held.

Like I said, and I could be wrong (but I doubt it) CPLR R. 3117(a)(4) was not intended to be a money saving mechanism.

Is this something a party really wants to do? Depositions are a completely different animal than trials. It’s part of discovery. Accordingly, there is a lot of leeway. All those questions that you could never get away with at trial; you can ask them. The questions need only be relevant. If the insurance company refuses to allow their doctor to answer and bust the deposition, well, that will be their problem. There is a lot of interplay between IME doctors, Peer Review doctors, the vendors that work in-between the doctors and the insurance companies. The insurance companies play a role as well. Do you really want these questions asked? Do you want the answers memorialized? I’d guess no. But, I could be wrong. In the end, it could wind up costing far more than it would save.

Using this rule is a ballsy move. One that most parties wouldn’t make but for desperation. We can all agree that a jury wouldn’t like it. Would a Judge? Would anyone feel comfortable telling the trier of fact, especially one that went to law school, and one who is smarter than your average Joe that, “Yes your honor, I didn’t think it important that you see the witness. No, you don’t have to worry about the witness’ demeanor. It’s fine, trust me”.

Feel free to comment. If anyone has some insight into the legistlative history of 3117(a)(4), speak up.

If you wind up at one of these depositions, you’ll want to ask questions. To help you along, here is a list of questions. Some are stupid, others aren’t. Feel free to add more in the comments.

How many times did you take the boards?
Med School grades
Has an insurance company ever asked you to change one of your reports?
Where did you get the journal cites for your reports?
Do you subscribe to any journals? Which ones?
How much do you make from peers/IMEs/testifying
Tax records
Bank records
Has an insurance company or its representative ever withheld records?
Has Has an insurance company or its representative ever altered records?
How are the peer reviews/IMEs scheduled?
Who schedules them? Insurance Company or Vendor?
Do you receive instructions before the peer/IME? What are they
Is there a cover letter? If so what does it say?
Are there any vendors or insurance companies you won’t work for? If so, why?
Has an insurance company ever instructed you on how to testify?

I’ll add more as I think of them. Add more in the comments if you want.

I M.

December 2, 2009 | 6:18 pm

State Farm and Progressive are the usual suspects in serving non-party deposition notices. I agree with everything you’ve stated and only add that the Courts do, too. The transcripts cannot be used and the service of such notices upon plaintiff’s counsel is improper.

zuppa's pit

December 2, 2009 | 6:19 pm

Here’s what we’re going to do. We’re going to go trial and really force the Defendant to make a strong showing that the doctor is not available to testify. Meanwhile we are going to be with the doctor the whole day — he won’t know it. Then we’re going to bring a motion for a new trial and sanctions by proving the defendant lied about the doctor’s availability.

Joe Armao

December 9, 2009 | 3:39 pm

What we’ve been doing is essentially treating these things as mini-EUOs of the doctors. Asking all sorts of questions regarding the relationship between the doctor, the vendor, the insurance company, and everything in between (basically the last five bullet points on Dave’s list).

Then we object to the use of the transcript at trial, arguing that its an abuse of the statute, against public policy and way outside the scope of the statutory intent. Thus far the Judges in Hempstead have universally rejected their use, and at least one firm bulk settled their EBT cases with us.

David M. Gottlieb

December 9, 2009 | 4:35 pm

I.M.

To its credit, I don’t think State Farm is pursuing this. As far as I know it has only been Progressive. I could be wrong.

Joe.

Normally these are noticed after the Notice of Trial has been filed, creating additional issues.

December 13, 2009 | 12:57 am

Anyone who has a State Farm or Allstate EUO of a Peer Doctor coming up after Jan. 1 — I would love one of an IME doctor too if they do that — please contact me.

If the vendor is right I would love to do it as pro bono of counsel. We all benefit.

FightInsurerFraud@gmail.com