Our host, Sean Harris, talks with nationally renowned attorney Dorothy Clay Sims about difficult DME doctors and several ways to catch them lying.
Sean: Hello and welcome to OAJ’s Civilly Speaking. I’m your host Sean Harris. We are very pleased today to have with us Dorothy Clay Sims, who is a lawyer and nationally renowned speaker and consultant on the issue of defense medical exams. Dorothy, thank you for joining us.
Dorothy: Thank you for having me.
Sean: What is your background and how did you get into this topic?
Dorothy: I did workers’ comp for about 25 years and I had one expert who routinely called my clients liars. After about the sixtieth report I began to take all of the psychological tests that he was given and I met the creator of one of the tests and he explained to me how this expert was misrepresenting the facts. I realized that this was happening all of the time. So I devoted the next 15 years to studying the science. I ultimately wrote a book that is about 1,200 pages that goes through all of the ways in which these bad guys lie. Every day I am learning new ways. It’s like playing whack-a-mole.
Sean: So it’s not the same old things over and over again?
Dorothy: No they are getting new and creative.
Sean: I know you have outlined some typical myths that you deal with in these issues with these doctors. For example, and we see this in our practice all of the time, the doctor says this crash, this accident was too minor to cause the injuries that your client is claiming. What do you do with a situation like that?
Dorothy: I am going to act like Luther the Angor translator for President Obama and I am going to translate what he is really saying. What the expert is really saying is “I can diagnose what is wrong with your client by looking at a picture of your car.” Now, you’ll notice when a crash is very severe the defense won’t give them those pictures or the doctor won’t mention that this is a severe crash. So the first thing that you want to do is point out an inconsistency. Point out that “doctor you have had cases where there have been very severe crashes with significant damage to the car and you leave that out of your report when that happens, don’t you?” Which they do and you can get reports easily by going on your listserv. The second thing that you want to do is point out that what he is doing is impossible. He doesn’t know where your client was in space, he doesn’t know the g-force, he doesn’t know the information to rule out that the crash did cause the injury. My husband is a physiatrist and he had a patient once who was in a 10 mile an hour crash. The patient had really bad spinal stenosis. After the 10 mile an hour crash he was rendered a quadriplegic. What matters isn’t the speed of the crash but the condition of your client and what happened to your clients body in space.
Sean: Now you made a comment in there which I know is a power message and a theme and that is when this DME doctor can’t pinpoint exactly when the injury happened or your client was healed, that certainly starts to suggest that this doctor is speculating.
Dorothy: Absolutely! What will happen is that when you go down that road the defense will object and argue speculation which is your point. One other thing that I think is really important is these are the same guys that will say, and you can get them to say this, “well doctor are you telling me that an activity of daily living can herniate a disc?” “Oh, Absolutely.” And if you ask it in a somewhat argumentative fashion they always give you the opposite response. I call that briar patching. I don’t mean being mean; if they think you want answer A they will give you answer B. So when you say “Do you mean to tell me that a sneeze could herniate a disc?” “Absolutely” So then you’ve got what you need. “So Doctor, explain to me how a sneeze can herniate a disc but being hit by a three thousand pound vehicle cannot.”
Sean: They don’t have an answer for that.
Sean: You made a comment during your seminar talk today that I thought was fascinating. And that is the idea of showing a video deposition of a DME doctor to the jury without the sound on.
Sean: And what a difference that makes. Have you seen that done?
Dorothy: I did it myself, not in a case because I just found out about this a couple of months ago. But a psychiatrist was talking about how people determine truthfulness and that it’s not based on what you say. In fact it is clearer if you have the sound off because sometimes the jurors get confused when they listen to big words used by the defense expert. Turn the sound off and ask them to watch it. I would suggest that you take a deposition and have twenty people watch it and rate the integrity of the person testifying without listening to the words. I think what you are going to find is shocking.
Sean: Taking it to the next logical step, I wonder if a plaintiff’s lawyer might show the defense DME depo with the sound off to the jury.
Dorothy: That is exactly what I recommend. What will happen is that the defense will object to this. The jury will go back into the deliberating room and play the deposition with the sound off. We know that is what they do.
Sean: Amazing. You mentioned another idea which I thought was fascinating and you can see it being very powerful. The idea of bringing your client, as a plaintiff’s lawyer, to the deposition of the DME doctor, how do you use that?
Dorothy: Yes. Let me tell you a story that I think is really funny. A doctor wrote a report that said the client appear attractive, well rested and happy. My client was a mess! She had PTSD, a brain injury, she had lost custody of one of her children, she was pale, dark circles. I brought her to the deposition and I brought a videographer. I said “Doctor, my client is seated next to you. You wrote a report saying that she looked great, she looked fine. I would like for you to look at her right now and tell me if she still looks fine.” And what he said was “No you can’t make me do that.” And he physically turned away from my client on video. He looked like an idiot.
Sean: Wow. I can see that whether it being for a truth detector for your client who went for the exam or making the doctor say it to their face. How advantageous that would be.
Dorothy: Right. If the doctor says that the client is malingering or faking and he has to look that person in the eye, he will back off. They don’t feel comfortable.
Sean: That’s a big assumption isn’t it. Talk to us about herniated discs as far as dating when a herniated disc occurs. Can a doctor look at a scan and determine when that herniated disc occurred?
Dorothy: He cannot. And that is a big myth. That is what the defense experts are saying all of the time; oh this preexisted the crash or this occurred after the crash. You can’t look at the image and know when it occurred. There is an article by Herzog in the journal Spine that says that you cannot determine the onset of a herniated disc unless you have an MRI immediately before an event. So when these people are saying that they know when this disc is herniated that’s a lie. It’s not scientifically possible. The only way to know that is to know when the symptoms started. That is an inconvenient truth for the defense.
Sean: Because usually it happened after the injury.
Sean: Speaking of preexisting injuries, how do you use visuals, graphics, charts to chart medications and complaints before versus after?
Dorothy: I think those charts are very important. The jury doesn’t even have to read them but make no mistake, they stop listening. It is tough to listen to somebody talk for hours. So when the defense paints your client as someone who has preexisting problems, it is very untrue and the only way the juries will get it, and sometimes I will get it, is to prepare a chart that shows pre-injury complaints, number of doctors visits, types of symptoms. For example, no radiculopathy, no left sided pain, no weakness, no numbness, no problems with reflexes, etc. They weren’t on narcotics. They saw a doctor three times in five years as opposed to twice a month now. When you do a chart like that it is visually very powerful and if you don’t you are making a huge mistake and it doesn’t cost anything.
Sean: I think what you are saying is that it is one thing to hear it but another thing to literally see the changes.
Dorothy: Yes. You see three things on the before crash and you see sixty-eight changes after the crash.
Sean: It’s powerful.
Dorothy: It is.
Sean: A picture is worth a thousand words.
Sean: One of the issues that we seem to come across all of the time is the idea that your client/my client is exaggerating. It’s not that bad and any of us would be fine but your client seems to be having a harder time with it.
Dorothy: Yes, there are several ways in which that occurs. First of all, make no mistake that the defense is calling your client a liar. Whether they diagnose malingering or symptom exaggeration, they are calling your client a liar and that’s the jury’s job to determine truthfulness, not an expert; especially when there are no valid, in my opinion, tests that test for malingering. Here is how they do it: they will use what is called Waddell signs or non-organic signs. Dr. Waddell himself said that you shouldn’t use my signs to determine malingering.
Sean: You talked to Dr. Waddell?
Dorothy: I did and I got his book. In his book it says stop misusing my signs. Plus the book says that you are only supposed to use Waddell signs for low back pain. Plus you are supposed to have three out of five signs positive and these doctors never test it right. Plus you aren’t supposed to use it if someone has a significant neurologic condition. You’re not supposed to use it in the first place. So A. they don’t give it correctly B. they don’t interpret it and C. you are not supposed to use it for malingering. So in my book I have a serious of questions for when they argue it that way. The second way in which they call your client a liar is to give psychological tests. Those psychological tests ask about symptoms. If your client admits to a certain number of symptoms the presumption is that they are lying even if there is an explanation for each symptom that they complain about. So I urge lawyers to get the questions to the psychological tests and when you do you will be outraged. You will see that you get a point for faking if you admit to neck pain even if you had a cervical fusion. You get a point for faking if you have stomach problems even if you are on narcotics that are causing the stomach problems. So be very careful about these malingering tests. I have in the book a whole chapter on how to cross examine regarding that and on my website your listeners can download motions in limine on malingering and orders striking it. However, I think you should embrace those tests because when the juries see the lack of science supporting the use of those tests in your clients cases, they get angry. I’ve had lawyers tell me that they get greater verdicts when they embrace those malingering tests and educate the juries.
Sean: Anger can be a powerful motivator for the juries. Dorothy, thank you for joining us today. You’ve mentioned your book and your website. If folks want to find that, where do they find you?
Dorothy: My website is dorothyclaysims.com and if you log into the plaintiff’s lawyer section, I will vet you, and then you can go back in and download whatever you want which are sample depositions, sample questions, references to articles. My book is sold at jamespublishing.com and it’s called Deposing the Deceptive Defense Doctor.
Sean: Dorothy Clay Sims, thank you very much for joining us here on Civilly Speaking.
Dorothy: Thank you for having me.