Author: John R. Alexander & Richard H. Adler

In Washington state, when a provider receives a subpoena to testify at deposition regarding a particular patient, it is generally because the at-fault defendant’s attorney wants to know the substance of the providers "expert testimony." However, if you receive a subpoena to testify at trial, it is generally because the patient's attorney wants to present their treating expert testimony to the jury or judge in the county in which the plaintiff’s personal injury case will be heard.

During typical testimony, inquiry will be made regarding the patient's history, examination findings, diagnosis, treatment plan, the patient's response to treatment, future care needs and/or permanent impairment or disability. While all the testimony is important, the healthcare provider's testimony regarding "proximate cause," i.e., whether the injuries to your patient and related treatment were a direct result of the traumatic incident caused by the at-fault person, is the most critically important. It is this proximate cause or "causation" element of the personal injury claim which often makes or breaks a case. Without such testimony, the injured party's claim will not be able to meet their standard of proof, and the personal injury claims may be dismissed by the court before a trial even begins.

The Washington Supreme Court has long recognized our laws require the testimony of an expert treatment provider to establish "causation." Medical testimony must be relied upon to establish the causal relationship between the liability-producing situation, and the claimed physical, mental and/or emotional injuries and disability resulting therefrom. The evidence will be deemed insufficient to support the jury's verdict, if considering the whole of the medical testimony, the jury must resort to speculation or conjecture to determine the causal relationship between the injury causing incident, be it a car accident, a bicycle accident, a trip and fall accident, or otherwise, and the personal injuries the person sustained. See O'Donoghue v. Riggs, 73 Wn.2d 814, 824, 440 P.2d 823 (1968)

In an earlier decision, Miller v. Staton 58 Wn.2d 879, 365 P.2d 33 (1961), the Washington Supreme Court ruled "the causal relationship of an accident or injury to a resulting physical condition must be established by medical testimony beyond speculation and conjecture." In another case, Carlos v Cain, 4 Wn. App. 475, 481 P.2d 945 (1971), the Washington Court of Appeals noted the causal relationship between an accident and an injury presents a question of "reasonable medical probability" and ruled a lay witness was not competent to testify regarding reasonable medical probability between a collision and an injury.

These case law precedents make clear proof of the causal relationship between an accident and an injury is left exclusively to all "licensed doctors," e.g., primary care practitioner, medical specialist, chiropractors, osteopath, physiatrist, psychologist, neuropsychologist, etc. The testimony by t he care providers regarding the link between the injury incident and the injuries need only rise to the level of more probably than not, or a 51% certainty to meet the applicable standard.

Though testimony from all licenced doctors in Washington is equally permissible to establish or contradict the proximate or causation issues, the weight given by the judge or jury to the provider's testimony will depend upon their expert status as a healthcare provider. Evidence Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact [a judge, jury or arbitrator] to understand the evidence or determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The rule is succinctly written and elegant in application to the infinite facts and circumstances presented by legal controversies. When the foundation of the expert’s expertise and the factual foundation of the particular opinions stated are established, the expert witness will be allowed to testify to his or her opinions. It is because of this preliminary need to establish the expertise of the treating physician that the testimony initially given by the healthcare provider describes "knowledge, skill, experience, training, or education," in their professional discipline. A second set of foundational questions will then involve the providers knowledge of, and experience with, the patient and their condition.

Our attorneys know most providers would rather spend their day treating patients than at a time- consuming deposition or trial. Nonetheless, most providers recognize that with the privileges afforded a licenced healthcare provider comes the responsibility to assist the patient in resolving questions concerning injuries, treatment, diagnosis, or causation. This is particularly significant for the successful resolution of the patients personal injury claim.

When the experienced personal injury attorneys of Adler Giersch represent the patient, they take the time to answer questions, carefully prepare the provider for deposition or trial, and communicate with their office to coordinate testimony in as mutually agreeable time frame as possible. These preparation meetings will happen in the providers office, or if more convenient, can occur in the Adler Giersch offices located in Seattle, Bellevue, Everett and Kent.