An instruction sheet for doctors providing defense-side “independent” medical exams in injury cases reads in part as follows:
# Point out whatever findings or claims are not related [to the sued-over incident]. Otherwise be silent on causal relationship.
# If prognosis appears good, then state that – otherwise be silent
# If you can state that plaintiff can participate in all normal activities, do so. If not, be silent
Eric Turkewitz, who brings this story to public attention (Feb. 12), wonders what ethical questions might be posed for both lawyers and doctors when expert witnesses are coached in this way to give partial and incomplete (to say no more) testimony. I don’t know what New York legal and medical authorities would do, but in the mother of all witness-coaching scandals in recent years — the inadvertent release of Baron & Budd’s “Preparing for Your Deposition” memo in asbestos litigation in Texas — nothing at all wound up being done by established authorities to discipline or punish the plaintiff’s lawyers involved. In fact, even more incredible, Baron & Budd succeeded in hiring more than one well-known academic ethics specialist to sign affidavits attesting that the coaching practices were in no way objectionable — details here and here (see pp. 161 et seq. of Brickman’s Pepperdine article). So if Integrated Risk Services, Inc., of Long Island, New York, which bills itself suggestively as a firm providing “Attorney Managed Independent Medical Consultation Services”, finds itself in hot water, perhaps it should give Prof. Silver in Austin a ring.
P.S. Jane Genova at Law and More doubts it works well before juries — though of course persuasiveness to a jury might not be the only objective for those who engage in coaching.