Opening Statements

Alternative Rx

When lawyers hear about a Florida business that provides Indian physicians for reviewing documents and disputing expert witness statements, the $90-an-hour price sounds great. But are these foreign docs credible?

Dorothy Clay Sims, the Ocala, Fla., plaintiffs lawyer who started the business, has an answer for that. All of the doctors who work with her service, called MD in a Box, made it through an extensive selection process that included critiquing medical exams for errors. Of the 800 physicians who applied, she says, only 80 made the cut.

Sims, who is married to a doctor, got the idea for the business during a visit to India, where her husband was examined for hip pain—at a quarter of what it would have cost for the evaluation in the U.S., she says.

The Indian doctors who work through Sims’ service are not considered expert witnesses, but they will critique those on the other side. “What I’ve found in the U.S. is that doctors don’t like to criticize each other, but these guys started jumping up and shouting,” she says.

During a deposition or a trial, Sims sets up a laptop computer, and an Indian doctor listens in through Skype, an Internet telephone network. Questions, requests and suggestions are exchanged through instant messaging.

Sims recalls a recent deposition in a case involving an auto accident; a defense expert witness claimed that the plaintiff’s brain injury was due to alcohol and marijuana use. “I had a neurologist online who IM’d me and said that the MRI findings were not consistent with alcohol or marijuana use but, in fact, due to traumatic brain injury,” Sims says.

Opposing counsel have ob­ject­ed to the doctors’ virtual presence, Sims says, but so far judges have said it’s OK in both trials and depositions.

“One said it was a cool idea,” she adds.

And since the doctors’ advice is considered part of trial preparation, Sims says, juries aren’t aware of the Indian doctors’ involvement.

“This sounds like a creative way to get cheap labor,” says Jeffrey J. Kroll, a Chicago plaintiffs lawyer with Clifford Law Offices. He co-chairs the ABA Litigation Section’s expert witness committee.

During depositions, Kroll says, he often calls U.S. doctors for advice during breaks. He’s not sure what they charge for that, but he estimates it’s “a lot more than $90 an hour.”

Yet Kroll is not sure he’d be comfortable relying on the advice of a non-U.S.-trained doctor. Patrick A. Long, a Santa Ana, Calif., defense lawyer, says that if opposing counsel in one of his cases used this service in a trial or a deposition, he’d object.

“I see no problem with a plaintiffs or defense attorney going to a doctor anywhere in the world for advice on how to try a case,” says Long, a name partner with Long, Williamson & Delis. “It’s a different thing when you have someone online during trial or a deposition, simply because the trier of fact should be aware of when peo­ple are whispering in the ear of an attorney.”

If Sims plans to communicate with an overseas doctor during a deposition, she says, opposing counsel is always informed.

“I think it would be wrong not to do that—sort of like spying,” Sims says. “Also, I think it helps keep the [opposing counsel’s] doctor honest.”

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