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Defending a Medical Proof Deposition Part 1: Objections to the Scope of the Use of Medical Records in a Treating Doctor’s Deposi


If you have ever defended a treating doctor’s deposition, you have probably seen a scenario play out where the doctor is asked whether the doctor treated the plaintiff (patient); the doctor references the medical records prepared during the course of treatment; and, then gives an opinion about the reasonableness and necessity of the medical treatment. Some treatment is extensive. Some is not. Most of the time however, the doctor will need to reference the medical records prepared in order to be able to discuss the medical treatment. Then, the doctor’s “entire chart” is “moved” into evidence.

All too often, I believe the doctor is not treated as a witness on the witness stand in the courtroom. However, isn’t the doctor’s testimony trial testimony? Yes. Don’t the same rules apply in the doctor’s deposition as they do to every witness you are going to see in the courtroom? I think so. I’ve even seen requests during a doctor’s deposition to go “off the record” to have a conversation with the doctor to clear up a matter. Uh, no. That doctor is on the witness stand and that would never happen in the courtroom.

There are a lot of directions this blog can go in. However, I want to limit the scope to “moving” the “entire chart” (or even a few of the medical records) into evidence because I see this happen so often. Typically, I do not want a doctor’s records marked as an exhibit during the deposition. As I have heard one judge say, “we don’t want the jurors playing doctor.” Isn’t that exactly what would happen if you have lay people reading records prepared by a physician?

So, what’s the objection? Well for one, the information in the records may be relevant, but also inadmissible. Why? Because the information is cumulative of the doctor’s testimony. Under Tennessee Rule of Evidence 403 even relevant evidence can be excluded if the evidence could confuse the jury or if the evidence is a needless presentation of cumulative evidence. Is that not what the medical chart would be? More of the same and a lot of confusing information.

Next, the records are hearsay. And, yes, there is a hearsay exception that may permit the records to be moved into evidence (if the above hurdle can be overcome), but few take the time to lay the foundation for the records to be made an exhibit. Tennessee Rule of Evidence 803(6) is the business record exception. But, just because a document is a business record, the gate is not open for documents to be made an exhibit. The necessary foundation must be laid before the records can be made an exhibit. If the foundation is not laid, I doubt the judge is going to let it come in during a trial, so why give a pass in the doctor’s office?

There may be plenty of reasons to not object and have the records made an exhibit to the doctor’s testimony. There are reasons to not want the records in as well. In my opinion, sometimes doctor’s depositions get too comfortable. Questions are asked, evidence comes in, and exhibits are made that may never make it beyond the gatekeeper in the courtroom. I believe the doctor’s deposition should be held to the same standard as if the doctor were sitting live in front of the jury.

Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.

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