166 0 obj <> endobj Board of Medical Specialties (www.abms.org) and determine whether the opposing expert has been board certified in her claimed specialty. Medical malpractice depositions are unique, unlike other personal injury matters, in that "opinion questions" are permitted,. Before one can conduct a useful deposition of a plaintiff, there are three basic things that every attorney must do before the deposition even starts. And the contents in this report and truthful, accurate, and reliable? If the patient gave a version of the accident to the hospital or doctor that varies from his deposition testimony, may be able to apply to the court for a fact deposition of a doctor. You wouldnt want to guess about those things, would you? 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? Case factors which suggest plaintiff fraud. Tell us about your medical background, starting with medical school. But if someone says they have a headache, you have to take their word for it, and it is called a symptom, isnt it? Games insurers play in wrongfully denying claims. 0000001716 00000 n Rule 32 of the Federal Rules of Civil Procedure governs the use of a deposition at trial. I want to ask you about some defense opinions in this case, OK? Once the deposition starts, it is even more important to explore these meetings on the record so that the jury understands the who, what, where, when, why and how they transpired. treating physician deposition outlinemuseum of glass restaurant near netherlands. 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. Have you and Mr. Fox ever discussed this case on the phone or in person on other occasions? stream These records are instrumental to whether a treaters deposition is even warranted. Name - professional address >plaintiff's doctor? 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]. 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. 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 . 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. ?4bm9MQFc:=R%`h0QO1{W~}Cxw1# 4Dzu[Zd.6/|D`^m^ :7 If there are favorable facts or opinions in the medical records of others, the defendants lawyer will ask this doctor: Do you see any reason not to believe (fact or opinion X in the records)? If the records do not reflect a causal link, then the physicians opinion as to your product or device should be consistent. The outline included is not meant to be a comprehensive outline of all possible This is the operation report you drafted and generated soon after the procedure you did? Requirements for taking of depositions. 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. Be confident. 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]? This article discusses general tips specific to medical malpractice deposition preparation. demonstrative, then itemize the comorbidities on a piece of paper as the doctor identifies each item as clinically significant. 0000009060 00000 n Yet the plaintiffs lawyer only showed you a few of them? 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. How many students were there in your first-year medical class? Ultimately, you recommended that [plaintiffs name] undergo a [procedure] on [date]? Build a Morning News Brief: Easy, No Clutter, Free! We'll outline 16 "best practices" that are critical to your success. 9. PREPARING FOR THE DEPOSITION o Outline the critical issues in your case and what opinion you need from the doctor on each . What facts did you rely upon in making that diagnosis? Individual websites for medical specialties often 5 Betsey Herd and Janabeth Evans, "Preparing for the Defense Medical Expert's Deposition", Trial, Vol. <<8C151ED5F53D3C45872ADFD1BAFF7038>]/Prev 350918>> And that number does not include the surgery center cost? These objections typically go to the form or relevancy of a question, or the question may involve some sort of privileged communication. Which cases are selected for surveillance. Taking of depositions. 1. Please introduce your self to the jury. Can you explain to the jury what a _____ does. Lab work or other tests that were done and what were the results. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case. Over the past 20 years, the advent of the internet and other technological innovations, coupled with novel approaches to assessing, diagnosing and treating patients, has led to a paradigm shift in the way many doctors practice medicine. ~Z#'tqkCIj.Qft&QR Appellate Practice Including Appeals of ESOs, Appeals of Final Orders, Appeals of Revocations, Appeals of Veterans Cases, Assisted Living Facility Representation, Adult Day Care Centers, Continuing Care Retirement Communities, Group Homes, Clinical Privileges, Fair Hearings, and Peer Review, Complex Litigation, Complex Business Litigation, Complex Commercial Litigation, Class Action Litigation, Multidistrict Litigation, Corporations, LLC's, Partnerships and other Business Entities, Dentists Advantage Insurance Company Cases, Employment, Discrimination, and EEOC Complaints, Healthcare Providers Service Organization (HPSO), Independent Legal Counsel and Investigations, Insurance Defense Attorney for Health Professionals, Liberty Insurance Underwriters, Mercer Consumer Services, Mercer Health and Benefits Admin Attorney, Mercer Insurance Attorney Cases, Medicaid and Medicare Qui Tam or Whistleblower Cases and False Claims Act, Medicaid Cost Reimbursement Report Denials, Nondisciplinary Citations and Notices of Noncompliance from Florida Department of Health (DOH), Nurses Service Organization (NSO) Insurance Company Cases, OneBeacon Insurance Company Attorney and One Beacon Insurance Company Cases, Podiatric Insurance Company of America Attorney and Podiatric Insurance Company of America Cases, Psychologists, Licensed Mental Health Counselors (LMHCs), Clinical Social Workers (CSWs), and Licensed Marriage and Family Therapists (LMFT) Representation, The Doctors Company (TDC) Insurance Cases, Volunteer Immunity and Good Samaritan Act. x\on?},\shzmQ-D}gf$ Xfo7|ysvw"rqZrqG}{f6K.]%Y*9*Reer~\$-t]i~8?2/grE2ty%3r.BGa&y*I.>%o64$YN\LL~;\SZxcDy=:TRLe2e+AWyVb8 3*L3V3JcM_QCd` TNI:eZME*&5jipbXMI(=Y6{mO_uX-d5-dNZpilAmS&_?q k:V&]Gdc";{I-Y oMdf(N4$!/yk;'/]%r$zndicvMDJ0Ll,Xv)Tdag$z=}vZ|(vh[=9aD9;FT2)4TLex(:+P0h 6i4S{HTGtL(*+,yGPjr@[]c:hQEn6iZN>cz ?$AK A deposition is not to find out the facts. Tried, settled or still ongoing? Dan Christensen . In personal-injury actions, treating physicians are often able to provide valuable testimony in support of the plaintiff's case. When was the first time you or anyone in your clinic/medical organization saw John Jones? 52-148a. All files and records of the doctor and his clinic or medical organization regarding John Jones. 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? This form is for the defense to use in examining the plaintiffs treating doctors. C. REFUSAL TO MEET 1. I agree to be emailed to confirm my subscription to this list, A direct examination outline of a treating doctor. What did you each say about these documents? Nailing your deposition is tall order. Why? On both of those cases, I have already deposed and videorecorded the treating surgeons. So, will he require future medical care from his injuries from this subject incident? 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. Fittipaldi USA, Inc. v. Castroneves, 905 So. First, some of the treaters in Cook County are well known to all defense counsel and insurance carriers. You had the benefit of the plaintiffs medical record and past illnesses, ailments and comorbidities? In our zeal to smooth out the rough edges in our defense of corporate witnesses, have we ignored the opportunity to take a newdare we sayoffense-focused approach to doctor depositions? How long have you been practicing medicine. Principle among these is the fact that the treating physician has a physician-patient relationship with your client. Every deposition has an errata sheet, on which you can correct any errors to your testimony. But it doesnt mean we shouldnt try. That is what the trial is for. Proximate cause of injury: reasonable probability, 1. 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 . In the present study, an . Arguably, some of the most important testimony in a pharmaceutical or medical device case comes from the treater, prescriber or implanting physician. 19 0 obj Because this unconventional, outside-the-box approach to corporate depositions has created a shift in the way plaintiffs lawyers take depositions. a. When you see a patient for the first time, you want to know the history? Should we, as practitioners of one of the other learned professions, likewise move out of our comfort zones and embrace changing practices, thoughts or ideas? <> endobj The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. The preparation and effort expended in this deposition determines the defendant's assessment of the case. (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 . In fact, is it important for you to have a history of the patients prior injuries, treatment and health conditions for you to make an educated assessment about the condition? So, that oath you took when you became a doctor, to help your patients as best you can, applies to [plaintiffs name]? startxref 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. Now, is [procedure] something that patients get right away or is it a last resort when someone is in pain? You are not there to be an expert witness and likely have not properly reviewed the subsequent physicians records. So, in your deposition notice, state: Please take notice that the deposing party intends to cause the proceedings to be recorded stenographically, through the instant visual display of testimony and by videotape. Did you know that in fact that John Jones had ___________? A cancellation fee of $1500 is payable if cancellation of testifying with less than 7 days notice occurs. hVo0O#{XUI0M`HUB6L;'vjk #1b.p-aMOX%pe9l48JX2Eg_3M8]NGUkzKphf=|N-I$T$Lgt:%NCQ~n9+|5h]h;,mgwbj }wz E/SR'#A`X?)6yCd\mMN=9U'vWUuEm.gr7 Ot8buqV5g"!OLUW\Ck,DIB1$ QJOW hb```xX Attorney's checklist for evaluating cases. Ask the court reporter if s/he is ready. How long engaged in practice? 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. Gives you a low-cost way to put together your deposition outline questions. % Roughly 200. Your job as his doctor, was to try and make him feel better? These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Did you actually review x-rays or tests yourself? Generally the defense gains an advantage in the deposition of a plaintiffs treating doctor by making the examination, long, detailed, and boring. Deposing your clients treating surgeon or pain management doctor and video recording it benefits your clients case in two main ways: (1) It is less expensive to depose these physicians for an hour or two versus calling them to testify at a trial; and (2)You get to retain another doctor who can back up and agree with what the treating physician did for your client if the medical evidence supports it. Offering such an opinion will leave you open to impeachment at trial. endobj Was the treatment you gave John Jones successful? 0000008212 00000 n Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. trailer 0000095064 00000 n %PDF-1.5 (t Did they show you any internal company documents? <> You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney Code of Civil Procedure section 2025.330, subdivision (c) states in part: The party noticing the deposition may also record the testimony by audio or video technology if the notice of deposition stated an intention also to record the testimony by either of those methods, or if all the parties agree that the testimony may also be recorded by either of those methods. Education(1) board certification/significance4. 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. Do you consider those to be reliable authorities for you to consult? Are there any other records of this visit/condition/treatment? 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. For reprint permission, contact the publisher: www.plaintiffmagazine.com, California Jury VerdictsVerdict searchReport your recent verdict, Copyright2023 by Neubauer & Associates, Inc., All Rights Reserved. Speak clearly, speak confidently, and present the appearance that you are sure of what you are saying. Fox refers to the name of the plaintiffs attorney. (1) nature/expense reasonable probability4. Before entering this phase of oral discovery, the defense attorney will have all of the records for the treaters. 166 31 Cross-Examining Doctors: A Practical Guide, Second Edition explains step-by-step how to: Investigate the case thoroughly and promptly. I'm always surprised by lawyers who do not take advantage of the opportunity to meet with the doctor before the deposition. <> A treating physician should also never give an opinion regarding another physicians medical care while being deposed. Deposing a plaintiffs treaters should be on a case by case basis. 691 0 obj <> endobj endobj Party subject to taking of deposition. Many physicians are deposed concerning the care they provided to a patient in lawsuits that implicate the patient's health (auto accident, work injury, disability suit), but not the physician's standard of care. And how many of these procedures have you done in your career to help your patients? His injuries from this subject incident product or device should be on a case by case basis put together deposition..., No Clutter, Free $ 1500 is payable if cancellation of with! The results plaintiffs lawyer only showed you a low-cost way to put together your deposition outline questions that! 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