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By: Jon H. Tisdale
We are all familiar with the mandate that a defense medical examination report, the so-called “IME”, must be produced upon written request by the patient’s attorney. California law requires production 30 days after the demand (or 30 days after the examination, if demanded prior thereto). Basically, as soon as your expert doctor in any discipline of medicine lays a hand on the plaintiff, he or she must author a report of the examination within 30 days and you must produce if demanded (and they always demand it; it is in every form response to a demand for IME used by the entire plaintiff’s bar). You and your expert must also produce any previous reports created by or provided to the examining expert for review.
What is far less clear is whether you must produce reports containing that expert’s assessment and opinions that are separate and apart from the actual IME report. The custom and practice in California that has evolved over many decades is that medical experts prepare two reports: (1) a report of the examination itself (the IME Report) which contains the current complaints of the plaintiff, the examiner’s findings, results of tests conducted, diagnoses, prognoses and “conclusions” of the examiner, and (2) a report of the examiner’s review of all pertinent medical records, films, images and test results by plaintiff’s treating physicians, together with the examiner’s opinions and anticipated trial testimony regarding what injuries or conditions are accident-related versus those that may not be. It is this writer’s opinion that you may never be required to produce the latter report.
Once you have designated a retained expert, you are now obligated to produce him for an expert witness deposition at the request of the plaintiff’s attorney. Typically, the notice for such a deposition includes a demand to produce records at the deposition. Bear in mind that your obligation to produce the examination report is separate and distinct, and may not wait until your expert’s deposition is noticed. Further, prior to a formal demand for production of documents contained in the expert witness deposition notice, there is nothing in California case law or statute that requires you to produce anything else. More specifically, there is nothing in California law that requires you to produce a Medical Record Review.
At the time of the designation of experts before trial, California law allows plaintiff’s counsel to make a demand for simultaneous exchange of all discoverable reports and writings. When the expert’s deposition is noticed, California law requires production of all materials no later than three business days before the deposition. By implication, this also means discoverable materials, as the statute is clearly not intended to invade privilege or work product. So, the key question that lurks within the statute but is not squarely addressed is this: What constitutes a “discoverable” report, versus a non-discoverable report? The statutory framework is silent, so we must examine case law.
National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476 holds generally that not all work by an expert witness is properly the subject of discovery. The court found that the product of the expert’s services rendered in an advisory capacity was not removed from the protection of the attorney work product doctrine merely because the expert was retained.
Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527 took the work product protection a step further, stating: “ . . . the mere fact that the expert may have the dual status of a prospective witness and of advisor to the attorney, does not remove the product of his services rendered exclusively in an advisory capacity . . . from the work product limitation upon discovery”. The court goes on to state: “We hold that an expert’s report rendered in an advisory capacity is one designed to assist the attorney in such matters as . . . the manner of presentation of proof, and cross-examination of opposing expert witnesses; matters that are often reflective of the mental processes of the attorney under whose direction the expert works.”
To be sure, there is nothing that prevents opposing counsel from asking the expert in deposition what his opinions are and upon what facts and records the opinions are based. However, when a retained expert assists the attorney is assessing causation, apportionment to preexisting conditions or subsequent events at the specific request of the attorney who hired him, arguably the report which explains these tactical considerations at trial remains work product. Certainly, where an expert’s report reflects the attorney’s analysis of trial issues that must be addressed, it can properly be cloaked with work product protection. The worst case scenario is an in camera inspection of the report and redaction of protected portions. Rarely will it get that far. For example, Medical Record Reviews are not intended as trial exhibits. In 37 years of practice, I have introduced such a report into evidence exactly ZERO times. Why on earth would I want jurors behind closed doors reading that voluminous gibberish and speculating why something is in the report that was not testified to or why something isn’t in the report that was testified to? (That’s a rhetorical question . . . there is no reason to introduce the report and subject your expert to cross-examination on what is in or not in the report.)
In the case of non-examining doctors (i.e., neuroradiologists) and non-medical experts (i.e., biomechanical experts, accident reconstructionists, and engineers) the solution is much simpler. Advise them when you retain them that you do not want a report. All you really need is to know what their trial testimony will be.
Are you 100% protected if the other side learns of a Medical Record Review and you decline to produce it? No, it’s just not that clear. However, I think the best practice is to not share the report or even acknowledge that such a report exists. If the other side finds out that there was a written Medical Record Review, make them seek a court order that it is not work product. On the other hand, if the Medical Record Review only hurts the plaintiff’s case and only helps your defense, you can consider sharing it to gain advantage in negotiations at a Mediation. The only downside to sharing it is that if the case does not resolve, your expert will be cross-examined on the review and his expert opinions at trial may be limited to what is contained therein.
If you have any questions or would like more information, please contact Jon Tisdale at [email protected].