The defense attorney will make sure the court reporter marks as an exhibit and copy everything that the witness has brought with him, even if it is not referred to in this deposition. 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. The remaining eleven represent deeper dives. (2) A treating physician and surgeon or other treating health care practitioner who is to be asked during the deposition to express opinion testimony, including opinion or factual testimony regarding the past or present diagnosis or prognosis made by the practitioner or the reasons for a particular treatment decision made by the practitioner . While it certainly will not fit every situation, there are times when some of this approach can have a positive impact on the outcome of the case. Do you have a copy of the transcript of your testimony? 7 0 obj
Dan Christensen . 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. [1] Physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient's medical interest's paramount by: (e) Delivering honest testimony. endobj
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That being the case, for you to fully understand that document and be educated on itlike a medical recordwould you need a proper and thorough history of that document? Copyright 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. In addition, we will leave you with ten points to remember should you ever be deposed. 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. Professional experience 5. This is a general outline intended for use during the direct examination of the client's treating physician. xn6wTt"``iQHS7qwv#L,~!NT'O6Z}/BN?axz\.+T\ *tPAGjo?R=n8Z.~mT^..?,vKDc x S: " 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. 6 Id. To do no undue harm to your patients and help them the best you can? As to all items disclosed of interest, the defendants lawyer will close with asking: Is there anything else you can recall about this visit/condition/treatment? Names of attorneys? i. 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. If the doctor met with plaintiffs counsel, ask the following questions: Plaintiffs counsel is not representing you at this deposition, correct? On both of those cases, I have already deposed and videorecorded the treating surgeons. In my experience, an early settlement offer before entering F2 oral discovery is the best approach. What to ask in the treating doctors deposition. I want to ask you about some defense opinions in this case, OK? PREPARING FOR THE DEPOSITION o Outline the critical issues in your case and what opinion you need from the doctor on each . Conclusions reached: x rays, medical illustrations etc, 1. 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. Follow his instructions and do not be intimidated by the examining attorney. If it is maintained as an electronic data file the lawyer will ask: When you were asked to testify about John Jones, did you have an independent recollection of John Jones, or did you have to review your medical records? Case factors which suggest plaintiff fraud. Date of suit? Here is a most basic direct examination outline for a treating doctor.DIRECT TREATING DOCTOR. The contrasting approach of more reasonable mid-sized insurers. Trust your lawyer to monitor your stamina and coherence. 691 0 obj
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Does the doctor have any personal, first hand knowledge, that the electronic record was not changed in any way since D/A. What facts did you rely upon in making that diagnosis? Rule 32 (a) (1) states: endobj
52-148b. How does my lawyer make sure that the doctors and medical facilities will get paid? Before this deposition, did you meet with the attorney for John Jones, Mr. Fox? Were you asked to review facts of this case and objectively determine whether there was any departure from the proper standards of medical care involved here . It means first, do no harm and is the ethical guiding principle in the medical profession. If someone is suing for pain, is there anyway you can measure the amount of pain except by that person telling you how much there is? Significant entries:(1) surgery(2) pain medication(3) therapy, 1. See 28 U.S.C . b. Because they have expert knowledge, experts are allowed to state opinions in their testimony, such as whether a physician's conduct complied with the applicable standards of care. Please show me all the items you brought to comply with that subpoena. How long engaged in practice? What did you each say about these documents? Mechanics of how accident causes these injuries2. Tried, settled or still ongoing? }oPqp[h|sI>T>Q~K)g.s5j|\fS6R}?QzFwPml_M0Sqf 0^)/^c
{BB8&i1=fDY. Was the treatment you gave John Jones successful? No. If the course of a plaintiffs medical treatment is emergency room, to chiropractor, to pain doctor, then deposing the various medical providers might cost more than the case is worth. 0000063781 00000 n
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? You are not there to be an expert witness and likely have not properly reviewed the subsequent physicians records. 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. The short answer to this question is "yes.". 3. 1. "Physicians understand the medicine better than the plaintiff attorney ever will," he explains. Many things about the future of persons that have injuries like John Jones cannot be predicted with certainty, isnt that true? As noted above, these practice points may not be applicable for every case, in whole or in part, nor should they be interpreted as suggesting change for the sake of change. Medical Deposition Outline for Injury Case MEDICAL DEPOSITION **Put objections on tape Qualifications of doctor Name, profession and address License to practice in State? Future treatment required? Pursuant to the . 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. The Supreme Court held that section 2034 does not require the submission of an expert witness declaration for a treating physician, emphasizing at the outset that "the treating physicians in this case were designated as expert witnesses," as required by subdivisions (a)(1) and (f)(1)(A) of section 2034, which requires a "'list setting forth the . Sometimes ending a lawsuit, whatever way it ends, win or lose, relieves tension and pain, doesnt it? EXAMINATION OF PLAINTIFF See Clinic Records, 1. (1) nature/expense reasonable probability4. 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. A deposition is not to find out the facts. Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. Before whom depositions may be taken. Dr. _____, where is your practice located. endobj
deposition treating physician. Why do they cause those same symptoms? And that number does not include the surgery center cost? Sec. Plaintiffs 213F disclosures will contain the treating physicians that plaintiff intends to call at trial. After the Notice of Deposition is marked and covered, per tradition, the next exhibit would have been the physicians curriculum vitae, which would have been covered from A to Z. Why? (t By now, before any substantive shots have been fired, you will have established that the corporate documents were not only shown out of context but also that they have nothing to do with the plaintiffwhich is why the doctor is here. The Carlson Law Firm, PC . Did you ask for payment, or did Mr. Fox tell you he would pay you? Did they ask you to appear at a future trial of this case? C. Cannot depose Independent Medical Examination Doctor or treating doctors, in the absence of special circumstances. The defense attorney will identify on the records all exhibits that doctor has brought. Ask the doctor to sign it before you mark it as a separate exhibit. Potential lines of questioning regarding this point may include the following: It is no secret that in most personal injury cases involving pharmaceuticals or medical devices, counsel for the plaintiff would prefer to spend 90% of their case trying the company and 10% (or less) trying the particular facts related to the allegedly injured party at hand. Hq'&F&'
And how many of these procedures have you done in your career to help your patients? And all caused from the subject incident from [date of loss]? Bills for services to Mr. Fox or his legal firm? Law Firms: Be Strategic In Your COVID-19 Guidance [GUIDANCE] On COVID-19 and Business Continuity Plans. _Y>#Bx/:]jy H1Gg
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_cr.xrvB#6x#Ez|c$}a. These depositions focus on the substance of treatment, the patient's medical condition, and the patient's prognosis. Fox refers to the name of the plaintiffs attorney. Were there any consultations with other doctors? The insurer gets only a cross-examination . That is what the medical record is for. You were served with a subpoena asking you to bring a number of items to this deposition, werent you? However, regardless of the outcome of the case, [plaintiffs name] is still responsible to pay your bills in full? Have you ever been contacted by an attorney who represents the plaintiff in [current] litigation? A treating physician should also never give an opinion regarding another physicians medical care while being deposed. 2. First, it shows that the documents were shown in a vacuum, without regard to context or content. In the context of the practice of medicine, we are all very familiar with the Latin phrase primum est non nocere. What did suit involve? A deposition is frequently used at trial to impeach a witness who testifies differently than their deposition testimony at trial. More importantly, we are still discussing the Reptile theory today because, in many cases, it has worked. Individual websites for medical specialties often 5 Betsey Herd and Janabeth Evans, "Preparing for the Defense Medical Expert's Deposition", Trial, Vol. endobj
What books on the diagnosis or treatment of [conditions diagnosed] are in your personal library? Just like the treating physicians, product manufacturers have a bench of experts with front-line, ground-level involvement with the product who, by the nature of their positions, have spent years developing first-hand, fact-based opinions about the product's safety. Clients of McKenna Storer appreciate the hard work, precision and thorough preparation that he brings to every matter that he handles. 4. Medical training Specialties Member of Medical Societies Member of Hospital Staffs Boards Authorships You may learn something about how the question could appropriately be answered from the objection. Since medical malpractice depositions are an essential part of discovery, your attendance is mandatory. What did it accomplish? 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. 40, No. 0000001672 00000 n
Mr. DeSantis is a 2017 graduate of the Consumer Attorneys Association of Los Angeles Trial Academy. When did you (including anyone in your clinic/medical organization) first examine John Jones after the accident of D/A? What was your diagnosis of Johns problems when you last saw him? endobj
And you also need to examine the patient to determine what continues to hurt them? Taking of depositions. Do you consider those reliable authorities?. What medical history was obtained from John Jones? Was John your patient or of your clinic/medical organization before D/A? What represented the jurisdiction of each? Check. 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]. Did plaintiffs counsel show you several documents prior to this deposition? This needs to be done before the defense deposition. 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. They allow one side to find out what a witness or party knows about the case; It fixes a witness's story so that he/she cannot amend his/her story at trial; Under certain circumstances, it preserves the testimony for witnesses who may not be available to testify at trial; and. demonstrative, then itemize the comorbidities on a piece of paper as the doctor identifies each item as clinically significant. Of course, a revolutionary, game-changing deposition may not be possible with every case. cross examination of treating physician. Did plaintiffs counsel compensate you for your time? Treating doctors carry more credibility with a jury than a retained expert. stream
TEN POINTS TO REMEMBER WHEN THE DEPOSITION HAS BEGUN. This outline and the information it contains is for educational and informational purposes, to promote discussion and analysis. 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? Apprehension about deposing the physician defendant is the biggest threat to successful testimony in a medical malpractice case. Board of Medical Specialties (www.abms.org) and determine whether the opposing expert has been board certified in her claimed specialty. Names of parties? Names of attorneys? Your email address will not be published. 0000002676 00000 n
PREPARING FOR THE DEPOSITION o Research doctor [s background o Prior deposition/trial testimony in similar cases (use P/D lawyer associations etc.) The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. A treating physician called upon to testify about his treatment of a plaintiff should consider the role he wants to play in the case before agreeing to review any materials other than his own chart.
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