The most common approach to cover letter questions in personal injury litigation is to completely avoid asking specific questions. The reason has to do with the nature of discoverable information in civil litigation. Since all communications between the attorney and the medical expert are discoverable, some attorneys prefer not to tip their hand to opposing counsel by asking questions that might reveal their strategy or approach to the case. In addition, the doctor is the retaining party’s witness so leading questions in a cover letter may be deemed impermissible. Hence, some attorneys will not risk asking a specific question that could be deemed leading and result in the doctor’s answer being stricken from the report.
Those who take this approach do not want to be seen as influencing the independent physician’s opinion in any way. This can be especially significant if the case ends up in front of a jury because jurors are considerably less skeptical of medical experts’ independence. But, the detriment to not asking specific questions is that this approach relies solely on the doctor to glean the relevant information and issues that need to be addressed from the materials provided. Sometimes the issues to be addressed are obvious, but sometimes they are not.
The risk of not asking any specific questions is the report may not address all of the issues that need to be addressed. This is a very real possibility if no communication takes place with the expert concerning the issues of the case.
This approach for Worker’s Compensation may be a convoluted way to get to the same result as if questions were asked. Additionally, the concerns in a Worker’s Compensation case are not the same because there is no jury to worry about and there is no concerns about leading a witness.
Do you ask specific questions or do you let the doctor provide information to the doctor and simply ask for conclusions? Why?
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