A QME must enter a deposition prepared to defend his or her opinions. Verbal testimony, while inconvenient, constitutes a necessary duty of a QME when requested. Good preparation and a review of reports ahead of time will ensure the most pleasant deposition process possible.
Applicable State Law
A QME must make themselves available for a deposition within 120 days of the notice of deposition. In-person depositions must be held at either the location at which the evaluation examination was performed or at a facility or office chosen by the deposing party that is not more than 20 miles from the location of the evaluation examination. Many attorneys now prefer Zoom or virtual meetings. If agreed upon by all parties, the deposition can be conducted virtually. At OrthoLegal, we have a beautiful deposition room that we offer to our physicians for in person depositions when needed.
Compensation
A typical QME deposition spans one hour at a rate of $455/hour. The QME is also paid for an hour of preparation time, amounting to $910 according to the QME fee schedule. If a deposition is canceled fewer than eight (8) calendar days before the scheduled deposition date, the physician shall be paid a minimum of one hour for the scheduled deposition.
Review of Relevant Material
A QME should review their own report or reports ahead of their deposition, and refresh their understanding of any labor code relevant to the case. As the records are summarized in the report, it is not necessary to review the raw records again. A QME should always be prepared to discuss their physical examination techniques required by law according to the AMA Guides 5th Edition in the event they are asked to describe how their measurements were obtained.
Prior to the deposition, open each of your prior reports in PDF format, as these can be easily searched by page number or terms.
It is important to be sure not to contradict your prior testimony unless deliberately making changes to a report. Generally, opinions should not be changed unless there is an error or new medical evidence has been provided. Medical evidence is rarely provided during a deposition, and therefore, changes of opinion are rarely made. If new evidence is provided in a deposition, it is reasonable to ask that this be submitted for thoughtful review with a supplemental report request.
Be precise in your answers by consulting your report. Ensure that you understand the medical evidence behind any impairment ratings that you provide. It is wise to avoid using terms such as “in my opinion” and instead base your conclusions on the medical evidence provided.
What to Expect
No one besides the deponent (you) and the parties taking the deposition (attorneys) and court reporter may be present, unless you want an attorney present and representing you. This is highly uncommon for a QME or expert witness.
You will be sworn in by the court reporter. A court reporter will be present to take the deposition under oath and may type or take video, or both.
You will be asked to identify yourself for the record and asked how many depositions you have done; if you are experienced, they will ask if you waive admonitions, but if you have not done many depositions, the admonitions will be read. Admonitions are important to understand your role in a deposition and appropriate deposition behavior and etiquette. The party that requested the deposition will then ask questions of you. Recall that the Applicant Attorney represents the applicant and that the Defense Attorney represents the employer. Keep in mind the motivations of each party: the onus is on the AA to prove existence of injury and causation, while the onus is on the defense to prove apportionment.
Remember, you are the expert in the room! Consider your audience and explain concepts the way you would to a patient. Make sure to pause and breathe between questions. If you feel threatened or pressured, you can verbalize this. When another party objects, you still have to answer the question; however, it is okay to say, “I don’t know.”
What if…
…The deposition runs late?
You are under no obligation to stay beyond the agreed upon time. The deposition can be closed and reopened at a later date under a “Volume Two.” If the discussion remains involved and at risk of going overtime, it is appropriate to allow them to know that you have another appointment and cannot stay late.
…The attorney deposing me is acting unprofessionally?
The judge reading the transcript is unable to hear the tone or see any hand gestures. If there is unprofessional behavior, it is important to calmly point it out. “Please stop raising your voice at me and interrupting while I speak” is very powerful on the transcript. This does not happen often but can defuse a situation. Remember to maintain your own professionalism.
…I don’t know the answer to the question?
It’s okay to say “I don’t know.” It’s also okay to say “I don’t know how to answer that because the question is confusing and I disagree with the premise of it.” Leading questions are sometimes used to get you to say something you do not necessarily mean but you are under no obligation to provide the answer that they want. Stick to simple answers and do not provide any more information than what is asked. Your job is not to volunteer information; you are here to respond to the questions asked.
…I’m being asked to provide a new impairment rating for the case and feel that I don’t have time or ability to consider this carefully?
In general, re-rating requires additional medical evidence. This is most appropriately done in a supplemental report or re-evaluation. You may request whatever information you need to support the new rating and ask that this be requested in a formal supplemental report request.
As always, the team at OrthoLegal is here to assist you in your deposition preparation and to answer any questions you may have.
