0000009060 00000 n 3. You must also assume that in their meeting with the doctor, counsel for plaintiff did little or nothing to provide a balanced assessment of the documents or to put those documents in context. However, the plaintiff can use the treater to obtain aggravation or exacerbation testimony. 11 0 obj Are you aware of [plaintiffs name] having [body part] issues or even coming close to requiring a [surgical] procedure before the subject incident occurred? Good afternoon, Dr. Doe. It is important to review these documents for the following two purposes: Whether the plaintiff's doctor had a complete medical brief Ever limited in scope? % Do you have a copy of the transcript of your testimony? Is that a reasonable cost based on your training and experience to a reasonable degree of medical probability? Unlike the company records, you have an educated background as to the medical records and documents for [plaintiff]? Names of parties? What is the most important thing for me to do after my injury? 40, No. This point has significance for the diagnosis or treatment of John Jones, doesnt it? Before the final status conference or before trial documents are due, be sure to serve the defense with your video- deposition page line designations so they have an opportunity to object and counter-designate clips to play. Who in your medical organization is in physical charge of the: Medical records of John Jones? 0000005060 00000 n April 9, 2022 /; Posted By : / sm furniture baguio city /; Under : animal crossing: new horizons amiibo figuresanimal crossing: new horizons amiibo figures Was John your patient or of your clinic/medical organization before D/A? The use of depositions at trial, particularly videotaped ones, has become increasingly common. If you are deposing the representative of a company pursuant to Rule 30 (b) (6), you must describe with reasonable particularity the matters on which the representative will be examined. Are you a social friend or business friend of Mr. Fox? Unfortunately, a deposition is an event that many, if not most, physicians will experience at least once in their career. endobj Ask whether they were a treating physician . {{h6;un%BN&{Z Name professional address>plaintiffs doctor? See 28 U.S.C . And the jury will be more inclined to believe your testimony. Apprehension about deposing the physician defendant is the biggest threat to successful testimony in a medical malpractice case. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case. Which cases are selected for surveillance. One of the most effective ways to attack a treating physician's opinions under Daubert is when those opinions are based upon an incomplete, if not outright wrong, understanding of the plaintiff's pre- and post-accident medical history. If you happen to have a judge who allows the plaintiff to have ex parte contact with healthcare providers, then you have a duty to go beyond the fact that the meeting merely occurred and let the jury know that not only did you not attendyou were never invited. Learn the Medicine. We'll outline 16 "best practices" that are critical to your success. You performed a [L4-5 discectomy and decompression] procedure for [plaintiffs name] after more conservative care failed to help his [back] pain? 3. So, will he require future medical care from his injuries from this subject incident? Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. <> Many physicians wonder if they have a choice to participate when it comes to a deposition. These treaters are the physicians who treated the plaintiff for his alleged injuries. Attorney's checklist for evaluating cases. Do you have a Curriculum Vitae, (or C.V. or an outline form of your education, professional history, accolades, interests, and other relevant information to your medical treatment of John Jones)? Does the doctor have any personal, first hand knowledge, that the electronic record was not changed in any way since D/A. Did you ask for payment, or did Mr. Fox tell you he would pay you? At the time of John Jones first visit with you, you did not record John Jones having __________, did you? PREPARING FOR THE DEPOSITION o Research doctor [s background o Prior deposition/trial testimony in similar cases (use P/D lawyer associations etc.) Is that an agreement you entered into with your patient to help him by stalling out collection of the bills until his case is over? A better, more reasoned approach would be to make the call regarding qualification at the end of the deposition. endobj M2DH) ,B;02ZMz5)Ro" FTK 8TR-N>5jdHYLJ_#ioS~tofc:&Kltv74 As good personal injury lawyers, we have all spent a great deal of time learning medicine, particularly the medicine involving orthopedic injuries. We met for the first time today when I introduced myself to you in advance of this deposition, correct? Id like to stipulate to the admission of the surgical report for all purposes including trial? Your attorney may object simply for the record and then tell you to go ahead and answer the question; or he may object and instruct you not to answer. Before taking the deposition of a defense psychotherapist, it is important to spend a similar amount of time learning the basic concepts of psychology and psychiatry . Tell us about your medical background, starting with medical school. If you do not win the case at the depositions, it is likely that you will meet the same fate at trial. The Carlson Law Firm, PC . endobj What facts did you rely upon in making that diagnosis? Why video-record your clients treating doctors deposition. A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. A physician can expect that in addition to himself/herself, at a minimum, there will be an attorney for each party to the action and a court reporter in attendance. 9. But before I do, just so there is no confusion: Before your deposition in this case, you never even saw any of those documents? That is precisely why, in predeposition prep sessions, plaintiffs lawyers may spend hours with a doctor walking through document after company document to set the table for the wouldnt you have liked to have known questioning. 0000002676 00000 n Life expectancy impacted? To embed, copy and paste the code into your website or blog: Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra: [HOT] Read Latest COVID-19 Guidance, All Aspects [SCHEDULE] Upcoming COVID-19 Webinars & Online Programs, [GUIDANCE] COVID-19 and Force Majeure Considerations, [GUIDANCE] COVID-19 and Employer Liability Issues. Yet the plaintiffs lawyer only showed you a few of them? Tips for defending a deposition. Names of parties? Butler Snow LLP var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); | Attorney Advertising, Copyright var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); JD Supra, LLC. Rule 32 (a) (1) states: The first time you saw the documents were before today where you are being recorded and have been sworn in under oath? If you learn during the early questions that a doctor has reviewed certain documents, you must assume they have seen the worst of the worst. 0000010560 00000 n The settlement style of large and conservative insurers. Code of Civil Procedure section 2025.620, subdivision (d) states: Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under section 2025.220 reserved the right to use the deposition at trial, and . Law Firms: Be Strategic In Your COVID-19 Guidance [GUIDANCE] On COVID-19 and Business Continuity Plans. You wouldnt want to guess about those things, would you? Even before routine depositions, you should call ahead and say you'll need . Conclusions reached: x rays, medical illustrations etc, 1. What does your practice of (orthopedics) involve? Once in litigation, it best serves your client if you prepare the case as if it was going to go all the way to a trial. When was the paper printout made from the electronic file? In other words, a good deposition sets up the trial. Effect in future(1) earning ability(2) activity: walking, climbing, kneeling etc(3) family life/activities(4) loss of enjoyment of life: pain/discomfort3. o Remember comp cases are all different o What is the doctor [s . You did not ask for the documents that you were shown? Deposing these well known, flagged, treaters would simply increase litigation costs and not accomplish anything for defense counsel. Invariably, the defense examiner will note a full range of motion, full measurements of strength, equal bilateral strength in all extremities, and negative test results in order to justify an opinion of no permanent injury or to otherwise minimize the Plaintiff's injuries. What physical examination was made and what were the findings? First, the attorney must know the file. Did they show you any internal company documents? Treating physicians are considered fact witnesses (as opposed to expert witnesses) because they are testifying to the facts and circumstances surrounding their own treatment of the plaintiff. Take breaks when you need them or if your attorney suggests it. 1. 0000095064 00000 n What is the basis of that opinion? Defendant Doctor's Deposition Defendant Doctor #2 ($10 million verdict) Defendant Doctor #3 ($2.5 million verdict case: doctor failed to notice signs of patient's internal bleeding that lead to his death) Defendant Doctor #4 ($5.5 million verdict: surgical error during cardiac surgery) Defense Expert (birth injury) Defense Expert #2 The same is true for tolerance (or lack thereof) for a particular surgical procedure or medical device implantation. Doctor, do you believe your care for [plaintiffs name] and the procedure you performed for him was medically reasonable and necessary to a reasonable degree of medical probability? When did you (including anyone in your clinic/medical organization) first examine John Jones after the accident of D/A? If you appear sure of yourself in the deposition, the attorney will conclude that you will appear that way to a jury as well. What was your diagnosis of the problems of John Jones? What was content of report?). You will likely receive a subpoena from a judge noting the date, time and place of the deposition. You should also incorporate questioning to elicit testimony that physicians rely on prior histories for a number of reasonsnot the least of which is to make good, solid, history-based medical decisions going forward. DIRECT EXAM OF TREATING DOCTOR . On both of those cases, I have already deposed and videorecorded the treating surgeons. They certainly did not show them the documents or timeline surrounding whatever issues were discussed or referenced therein. The James T. Allan Award is an award given to a first-year medical student for outstanding achievement in research. State in a loud, clear voice that the deposition is beginning. To help you gain the upper hand with even the most persuasive compulsory medical examiners, this valuable book: Offers strategy and tactics based on decades of experience with doctors, Provides medical information on the injuries you are most likely to encounter within each specialty, Arguably, some of the most important testimony in a pharmaceutical or medical device case comes from the treater, prescriber or implanting physician. Ask whether their hospital privileges have ever been suspended or provoked. Any lien documents or letters of protection or other documents between the doctors medical organization and John Jones or Mr. Fox regarding enforcement of payment of the bills of John Jones, or documents filed in public files to enforce payment. 0000010167 00000 n Should you fail to appear, the defendant may petition the court for recovery of any expenses incurred as a result. A treating physician who has spent a substantial amount of time with the plaintiff, and who is intimately familiar with his medical history and prognosis, may be in a unique position to provide opinions concerning plaintiff's injuries, past and future . If the doctor flips on you, is difficult or provides testimony that you hope to never see or hear again, then you certainly would not take steps as your questioning winds down to walk through their training, education and experience, would you? 95. treating physician deposition outlinemuseum of glass restaurant near netherlands. If the facts warrant, you should use this moment to detail the plaintiffs relevant preexisting clinical conditionsand put them front and center before the jury and the doctor. m_sp0fe}:8LTRhXY36A[H`{CxMiq$r-]ZM 0000000016 00000 n The deposing attorney may invite assistants, including consulting physicians, nurses, or paralegals to help them in analyzing the testimony and framing questions. All of my outlines are very simple and basic. ,:o+Ll#esN` But what you do have here is your history in the care and treatment of the plaintiff, correct? [The defense lawyer will obtain and mark as Exhibit. endobj It is not legal advice. 13 0 obj This article focuses on a new, if not novel, means of approaching the heretofore routine doctor deposition. Make an outline or a list of each and every test and what it is for. <<8C151ED5F53D3C45872ADFD1BAFF7038>]/Prev 350918>> If the treaters records are detailed with complaints, recommendations and causation, then deposing that treater just to read back his records is not useful. Are there risks involved with [procedure]? C. Cannot depose Independent Medical Examination Doctor or treating doctors, in the absence of special circumstances. Without speaking to the treating physicians, the life care planner may lack a full understanding of the plaintiff's injuries and care needs. Understand the purpose and format of a typical physician's deposition; Recognize many of the tricks and tactics attorneys will use in an effort to trap the physician or extract testimony; Understand how best to prepare for a pending deposition in order to provide the best possible defensive testimony; and. 52-148d. License to practice medicine ever revoked, suspended, restricted? endobj You testified that [the defense lawyer will summarize the the most helpful statement this witness has made that will provide ammunition at a trial or a settlement]. Do you consider those to be reliable authorities for you to consult? Did they discuss with you any internal company documents? Now, is [procedure] something that patients get right away or is it a last resort when someone is in pain? Cane/walker/brace/cast why & for how long. (If the operative report is good for you, why not admit into evidence!). Check. Why won't the insurance company for the person or company who caused my injuries automatically pay my medical bills as they occur? Medical training Specialties Member of Medical Societies Member of Hospital Staffs Boards Authorships I never read from them, but rather refer to them to refresh my memory and then address the witness without the material. How many students were there in your first-year medical class? endobj Did you actually review x-rays or tests yourself? Are there other conditions (other than the one you diagnosed) that may cause John Joness symptoms? Roughly 200. ~Z#'tqkCIj.Qft&QR And you created these in the ordinary course and scope of your business? It is one more way to indirectly and tangibly bring the doctor back into the courtroom months down the road. Any medical licensing board disciplinary proceedings? Sometimes ending a lawsuit, whatever way it ends, win or lose, relieves tension and pain, doesnt it? a. treating physician deposition california. All files and records of the doctor and his clinic or medical organization regarding John Jones. At the end of the first examination, did you make a diagnosis? It is a type of deposition intended to have a witness' testimony used in a trial in lieu of their live testimony It is sometimes called a preservation deposition The parties typically videotape it Generally, the person's testimony is not used for discovery purposes It can be used to secure an expert witness' testimony [ 11 0 R] Below is a general outline that I use. Thanks to television, many people think of a deposition as something that happens under a glaring light bulb in a dimly lit room, while attorneys grill witnesses with trick questions. Any self limitations on type of practice? Put your fears to rest by familiarizing yourself with the procedure and preparing for predictable questions and variable responsesdue diligence before your deposition will lead to a strong defense. If witness has not brought any item: Identify by name and connection to the case, everyonewho is in the room. Professional experience5. A valid, recent, signed consent to release information is required. Medical malpractice depositions are unique, unlike other personal injury matters, in that "opinion questions" are permitted,. But it doesnt mean we shouldnt try. endobj If a physician thinks a certain medication caused an adverse outcome for a patient, then they would certainly chart it so that future treaters would have the benefit of that knowledge and steer the patient away from such therapies in the future. Despite these known and disclosed risks, [plaintiffs name] ultimately went forward with the [procedure] with you because he was in so much pain in his [body part]? As a result, the treater is duty bound by the standard of care to exercise sound medical judgment in the diagnosis and treatment of the plaintiff. In the present study, an . Of course, a revolutionary, game-changing deposition may not be possible with every case. It makes it easier if the records ultimately go back to the deliberation room to be broken down and separatedmuch easier than an unwieldy stack of hundreds of pages of records. In the below checklist, the plaintiff is referred to as John Jones and Willy Fox or Mr. What they ask you to do? 17 0 obj "Physicians understand the medicine better than the plaintiff attorney ever will," he explains. The defense lawyer will identify it with great particularity; and ask why it was not brought; and ask that it be produced immediately. An experienced attorney will continue a deposition for as long as possible, without interruption, in an effort to fatigue the witness. A statement of all amounts of money received by the doctor or his or her medical organization from attorney Wiley Fox, or his firm Fox Huntum and Brag, during the last two years. Do you consider those reliable authorities?. Now you have a logical segue to the medical records. One approach to setting the initial demand figure. QDdkK\-"|-"EDA +!j(V"r#!Z":+C%.hQT\rKd_#[M]sj6!W+2XEV?+vEMzv*u"m5C] XZ_u\t_TyK~'i*?M/\K,Xpe *G!7#hmg4-Rscq70xp4SP 0:n,II7IRRM?8S A deposition is the questioning of a witness under oath outside of a courtroom. Check. Requirements for taking of depositions. Before coming to this deposition, did you check with each of those persons to see that you actually had all the records you were subpoenaed to bring? The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. Mechanics of how accident causes these injuries2. Names of attorneys? His accessibility to clients and willingness to take the time to discuss their cases with them is in keeping with the firms focus on transparency in attorney relationships with clients. deposition treating physician. Every deposition has an errata sheet, on which you can correct any errors to your testimony. So, that oath you took when you became a doctor, to help your patients as best you can, applies to [plaintiffs name]? Other than having the doctor introduce themselves as a physician who participated in the care and treatment of the plaintiff, why would you go any deeper at the beginning of the deposition? It is also not unusual for a defendant physician or a plaintiff in a personal injury action to be present as well. )f^_,FNfP\!vL*\UIQ@ /p0933L\>cK;S$ W=T3-uDA8$[S'Gb/@b)_ePdH) wF~0K^zE/=2Z\ M(%Lb&X&g+|yY\3+$_ >Km-F?P(S2::EGG(ax@hF( Insurance carriers are becoming more unreasonable. Adding attorneys' fees and costs for these depositions, they might end up costing more than the value of the case, depending on how many are disclosed. We will equip you with the knowledge required to prevail. 8 Id. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> In personal-injury actions, treating physicians are often able to provide valuable testimony in support of the plaintiff's case. Do our court reporters come to the conference room with a pad and pencil ready to write down every word? 18 0 obj 2 0 obj You did not even know the plaintiffs lawyer was going to show you [company documents]? >> It is a proceeding where a lawyer representing a party to a lawsuit asks questions to or interviews a witness under oath, but out of court. 0000001716 00000 n 0 Maryland Personal Injury Lawyers. endobj Medical Deposition Outline for Injury Case MEDICAL DEPOSITION **Put objections on tape Qualifications of doctor Name, profession and address License to practice in State? radiologist deposition questions. Where do the bills stand right now for everything for [plaintiffs name] your care, the [procedure], the surgery center? 0000002085 00000 n Q. HWmO8_G.S)n[PA@,=f} IpfyQ5:,=M'bt8XX.aUYeF$Y/GRlB4'iW mig[qWf8v#3"E(9r9TRSY)lkOT?I) KL]EYWCm]Mp]t2XmThAAU)rBr 1. Examined plaintiff? Offering such an opinion will leave you open to impeachment at trial. hVo0O#{XUI0M`HUB6L;'vjk #1b.p-aMOX%pe9l48JX2Eg_3M8]NGUkzKphf=|N-I$T$Lgt:%NCQ~n9+|5h]h;,mgwbj }wz E/SR'#A`X?)6yCd\mMN=9U'vWUuEm.gr7 Ot8buqV5g"!OLUW\Ck,DIB1$ QJOW Many physicians have had the unfortunate experience of giving a deposition. In many cases, it has resulted in more efficient medicine with better outcomes for patients ranging from curing or eliminating diseases (such as hepatitis C) to cutting inpatient hospital stays from weeks to days. While a treating physician is not generally classified as an expert witness, it is not an absolute rule and he may be deemed an expert in certain circumstances. 15 0 obj As an expert witness. While the physician is not a party to the lawsuit and typically does not have an interest in how the lawsuit is resolved, it is important to still retain legal counsel as your records and treatment will be reviewed and scrutinized. You were served with a subpoena asking you to bring a number of items to this deposition, werent you? Also establish the absence of any addendum, correction or revision to the record since the filing of the lawsuit and since the deponent has discussed the case with the plaintiffs counsel. stream We have a duty as counsel to leave the take the deposition now and deal with it later attitude that seems to have become commonplace in some circles. I have deposed various surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment. Generally the defense gains an advantage in the deposition of a plaintiff's treating doctor by making the examination, long, detailed, and boring. Preparing the Documents Conduct discovery depositions that precisely and unambiguously pin down the doctor's interpretation of the relevant facts and his or her . b. Depositions of key witnesses; c. Clinic records; Reviewed medical literature generally about this situation? Here is my guide for direct examination of the treating doctor. And despite trying to get rid of it through other means, nothing was really helping, so he came to you for help? Privileges in hospitals in the area? George F. Indest III, J.D., M.P.A., LL.M.Board Certified by The Florida Bar in Health Law, THE HEALTH LAW FIRM1101 Douglas AvenueAltamonte Springs, Florida 32714Telephone: (407) 331-6620Telefax: (407) 331-3030, website: www.TheHealthLawFirm.come-mail: cbrown@TheHealthLawFirm.com, FLORIDA HOSPITALOSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM, FLORIDA HOSPITAL EAST ORLANDOORLANDO, FLORIDA. Build a Morning News Brief: Easy, No Clutter, Free! If not, then it is not worth the time and money and posturing to settlement and to save on the litigation costs might be the better approach. You should always consult extensively with your own personal attorney and follow his or her advice. Opinion re plaintiff honest or exaggerated/fake2. General Litigation Deposing a Plaintiffs Treaters, deposing plaintiffs physicians, Alexander Sweis is an outstanding trial attorney with more than a dozen jury trials to his credit. Education(1) board certification/significance4. <> 16 0 obj The court reporter's role is to administer an oath or affirmation and then transcribe verbatim every comment made in the room during the deposition. What matters is that effective use of corporate documents can poison the well as to the physicians impression of the company and its behaviorand make them less reluctant to make concessions that may play against the patient. %%EOF Please take further notice that under Code of Civil Procedure sections 2025.340(m) and 2025.620(d), Plaintiff reserves the right to use at trial (during opening, direct, cross examination, closing, rebuttal or any other time) the video recording of the deposition. Now you must decide if any of the allegations in the complaint can be taken down or neutralized by the consent process; the warnings from the Instructions For Use (IFU), product label or package insert; or common knowledge in the medical field. MEDICAL DEPOSITION - VEHICLE COLLISION. room. Will the doctors, hospitals and other medical facilities wait for payment if I am unable to pay my bills as they are incurred? Court involved? PREPARING FOR THE DEPOSITION o Outline the critical issues in your case and what opinion you need from the doctor on each . Who saw John Jones on this first occasion, and why was John Jones seen? Principle among these is the fact that the treating physician has a physician-patient relationship with your client. Code of Civil Procedure section 2025.620, subdivision (d) states: Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under section 2025.220 reserved the right to use the deposition at trial, and if that party has complied with subdivision (m) of section 2025.340. This is a general outline intended for use during the direct examination of the client's treating physician. Daniel DeSantis is an attorney at Alderlaw, PC in Los Angeles, where he primarily practices personal-injury law. But you have to ask yourself this question: Why qualify early? For the jury, I want to shift gears and lets finally talk about what you know and what you were asked to come here to talk aboutyour records and your care and treatment of [plaintiff]. Many physicians will admit they are trainedfor charting purposesthat if its not in the medical record, it didnt happen. Instead, it is more akin to a marathon, where the individual with the most stamina wins. endobj Deposing a plaintiffs treaters should be on a case by case basis. The treating physician was called to testify at deposition. Published on the topic? The defense lawyer can subpoena or otherwise secure the attendance of the treating physician at a deposition. Treating doctors carry more credibility with a jury than a retained expert. 0000036741 00000 n It does not matter that the doctor has not seen the documents, that the documents have little or nothing to do with the science of medicine surrounding the product, or that the documents are in no way temporally related to the care and treatment of the patient. 0000007401 00000 n treating physician deposition fee schedule. If they are numerous, authenticate and mark each individual medical record that identifies a history of infarctions, diabetes, smoking, noncompliance, etc. If you want to emphasize something favorable to your side of the case that was recorded in the medical records for a particular office visit or hospital stay, or you want to emphasize that something was not recorded (hence you can infer it did not exist) ask the following: Is this document, dated _________________, the record of _________ of John Jones? The preparation and effort expended in this deposition determines the defendant's assessment of the case. It is not uncommon for a treating physician giving a deposition to have little or no independent recollection of the plaintiff or of their treatment of the plaintiff. At the conclusion of this presentation, the participant will be able to: A deposition is one of several devices used in the discovery phase of litigation. If you are a defendant in a lawsuit, you must set aside adequate time to both review the patient's record and meet with your own counsel. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Be confident. Lab work or other tests that were done and what were the results. The defendants lawyer will specifically ask if the following are present now in the room. So, as we get older, we all have degeneration in the spine, which includes the back and neck? Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. This analysis can be seen in most soft tissue cases. between counsel for the plaintiff and the doctor before the first question is asked under oath. Once the deposition resumes, the attorney may then play on this "friendship" in an attempt extract additional testimony. Was anything observed that was not recorded? Mechanical Aids Special Studies (electronic studies, lab tests, x-rays)? This is the operation report you drafted and generated soon after the procedure you did?
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