Sunday, September 10, 2006

Supreme Court Requires Deposition by Interrogatories Before Discovery of IME Doctor's 1099s

The Supreme Court has addressed the cases in which IME physician Dr. Eagle desires to not respond to the Order of the Common Pleas Court that he produce three years of 1099s from insurance companies and defense attorneys. The Judge found the discovery request was appropriate upon which to found a demonstration of bias. The Superior Court affirmed.

In Cooper v. Schoffstall; Appeal of: Eagle, M.D. the Supreme Court held a deposition by interrogatories is required before a Judge can order that 1099s be produced. The Court felt the IME doctor's answers to the interrogatories will be sufficient upon which to demonstrate bias in most cases where it exists.

Madame Justice Newman authored an excellent concurring opinion reminding the bar that requiring an expert witness to produce personal financial information is generally an abuse of the discovery process.

No one can deny, however, that IME physicians can underestimate the IMEs they perform for defendants, overestimate the IMEs they perform for Claimants, or both. The doctor's testimony can't be challenged without hard evidence, such as 1099s. One has to question the doctor's veracity when the doctor says he or she does one IME a week and all the Judges in our part of the state see the doctor's evaluations twenty times a year or more.

The Supreme Court decision still allows discovery that digs deeper than questioning the doctor without his financial records. The first step, however, will be to direct interrogatories to the doctor.

In workers' compensation, there is no provision in the Rules of Practice and Procedure before WCJs to conduct a deposition by interrogatories. Claimant's counsel will have to direct these questions to the IME physician at deposition. If the answers seem incredible to counsel, they will probably seem incredible to the Judge. In a rare case, counsel may seek additional documentation.

No comments: