0000004096 00000 n Roughly 200. (4,ro; A better, more reasoned approach would be to make the call regarding qualification at the end of the deposition. Pre-payment is required for all services. Both sides now approach the corporate deposition with a newfound appreciation of what is at stakeand the best attorneys plan accordingly. What was content of report?). 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. Permanent injury?2. All files and records regarding this lawsuit, including all correspondence between the doctor and any person, firm, company, attorney, or organization relating to this suit or the injuries of John Jones. A valid, recent, signed consent to release information is required. Medical training Specialties Member of Medical Societies Member of Hospital Staffs Boards Authorships While these new methods may have been collectively saddled with a moniker that sounds like a title for a fifth grade science fair project, the Reptile theory is still being utilized today. Who has possible access to computer terminals that can enter or change data in the file? 1. <> And then on top of those two things, that is when you look at an MRI to correlate all the findings together? Such doctors are seen as erudite individuals who are not out to serve as advocates for a particular person or company but rather as witnesses who, through their training, education and experience, have made objective decisions and unbiased choices in their approach to treating the named plaintiff and utilizing or prescribing the product at issue in the case. On both of those cases, I have already deposed and videorecorded the treating surgeons. The Carlson Law Firm, PC . 6 0 obj Profession/specialty 3. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 19 0 R/Group<>/Tabs/S/StructParents 1>> 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. 3410 Far West Blvd., Ste 235 . I want to ask you about some defense opinions in this case, OK? When the plaintiffs lawyer showed you those documents: They did not invite any of the authors of the documents to attend? Likewise, they did not show the doctor any of the corporate testimony involving drafters of the documents, emails or memos that may have shed some light on what was said, when it was said and why it was said. 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? Here is a most basic direct examination outline for a treating doctor. But if someone says they have a headache, you have to take their word for it, and it is called a symptom, isnt it? This outline and the information it contains is for educational and informational purposes, to promote discussion and analysis. Board certified? The first time you saw the documents were before today where you are being recorded and have been sworn in under oath? Did you meet with any lawyers prior to the deposition? 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. Names of attorneys? The contrasting approach of more reasonable mid-sized insurers. 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. For physicians, depositions are stressful and unnatural experiences. Check. Without speaking to the treating physicians, the life care planner may lack a full understanding of the plaintiff's injuries and care needs. Rule 32 of the Federal Rules of Civil Procedure governs the use of a deposition at trial. 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? Taking of depositions. 3. J{Hc8Dh 8o4 F\I)2hI2eiH\QiH+?l)mD$kSIl?$Qp When a patient sues for malpractice, the patient's attorney will take the defendant physician's deposition. Why do they cause those same symptoms? The defendants lawyer will check to be sure that the doctor brought not only bills to John Jones, but also the bills sent to attorneys in this case, either showing services to the patient or services to the attorneys. Can you walk us through the procedure you did to help [plaintiffs name], please? 52-148c. Know the doctor's file / report better than opposing counsel Do Internet research to understand the medical issues Know the law - "medically distinguishable" Call the doctor ahead of time if possible Show up in advance of deposition to discuss testimony Don't be afraid to cancel a deposition . (1) nature/expense reasonable probability4. These records are instrumental to whether a treaters deposition is even warranted. Be confident. Deposition Location - It Matters To begin, the original deposition notice must include location time and place, according to Federal Rule of Procedure 30 (b) (1). At the time of John Jones first visit with you, you did not record John Jones having __________, did you? A physician being deposed as a defendant must prepare by meeting with his/her attorney and reviewing the issues likely to arise during the proceedings. It is important it is to create medical records which are truthful, isnt it? (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 . 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. What facts did you rely upon in making that diagnosis? <> 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. How does my lawyer make sure that the doctors and medical facilities will get paid? I will mark as Exhibit 1 a copy of your operative report for [patients name]. Ask whether it was an an expert for plaintiff or defendant ii. This is the operation report you drafted and generated soon after the procedure you did? Games insurers play in wrongfully denying claims. The injured worker's deposition is the most important deposition taken in a workers' comp case. This outline and information cannot be used against its authors and clients. ,:o+Ll#esN` Saves you time in preparing your deposition outline. Since medical malpractice depositions are an essential part of discovery, your attendance is mandatory. Every case and set of circumstances is different. 3V|DoIhW>iNXp2_{O \=I7C}_F`"1w:88fY) fy)$DSH 3O!/3M! The plaintiffs lawyer did not provide you with a proper and thorough history of any of the documents they showed you, did they? In federal court proceedings, the deposition may be your only shot to obtain favorable testimony from the treating physician. An experienced attorney will continue a deposition for as long as possible, without interruption, in an effort to fatigue the witness. Special qualifications - seeCV if any C. REFUSAL TO MEET 1. In Practice, Physicians Focus on Treating the Condition In the course of typical treatment, physicians focus on treating the condition as it presents, and rarely take the time and effort to complete the steps required by Daubert to conduct a differential diagnosis. What else did you review in preparation for this deposition? First, it shows that the documents were shown in a vacuum, without regard to context or content. Austin, Texas 78731 (512) 346-5688 . Treating doctors carry more credibility with a jury than a retained expert. Dan Christensen . Ask the court reporter if s/he is ready. 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. Names of parties? In addition, we will leave you with ten points to remember should you ever be deposed. The insurer gets only a cross-examination . Check. The remaining eleven represent deeper dives. 2 0 obj Ask whether their hospital privileges have ever been suspended or provoked. Daniel DeSantis is an attorney at Alderlaw, PC in Los Angeles, where he primarily practices personal-injury law. Unlike the company records, you have an educated background as to the medical records and documents for [plaintiff]? 1. 7 0 obj Board Certified by The Florida Bar in Health Law, OSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM. 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. endstream endobj startxref Even before routine depositions, you should call ahead and say you'll need . 13 0 obj You have seen and reviewed many medical bills in your field of medicine for treating patients and conducting [subject procedure]? Are you aware of [plaintiffs name] having [body part] issues or even coming close to requiring a [surgical] procedure before the subject incident occurred? i. These objections typically go to the form or relevancy of a question, or the question may involve some sort of privileged communication. If witness has not brought any item: Ask whether the doctor has ever had his license to practice medicine suspended and/or revoked. Generally the defense gains an advantage in the deposition of a plaintiff's treating doctor by making the examination, long, detailed, and boring. Asked you to tell jury about him? Conclusions reached: x rays, medical illustrations etc, 1. What did it accomplish? endobj Will the doctors, hospitals and other medical facilities wait for payment if I am unable to pay my bills as they are incurred? Does the doctor have any personal, first hand knowledge, that the electronic record was not changed in any way since D/A. 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. /Filter /FlateDecode Fittipaldi USA, Inc. v. Castroneves, 905 So. 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. 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. Did you personally review x-rays or tests that you relied on? 40, No. 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. Nailing your deposition is tall order. stream MEDICAL DEPOSITION - VEHICLE COLLISION. Sec. Since the deposition, you have not seen any company documents? Are there risks involved with [procedure]? What physical examination was made and what were the findings? Future treatment required? Code of Civil Procedure section 2025.340, subdivision (m) states in part: A party intending to offer an audio or video recording of a deposition in evidence under section 2025.620 shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered. . Helps you think through and plan all the various aspects of your medical battleground, so you are sure to hit every important point. Did they discuss with you any studies that have been conducted on [product]? 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. Was John your patient or of your clinic/medical organization before D/A? So what about us defense lawyers? Did you try to separate out how much of John Jones condition might be due to his own failure to follow medical directions? Was anything observed that was not recorded? What is your understanding of why the attorney contacted you? Likewise, the substantive material in our outlines should not elicit memories of the days of British Sterling cologne and home permanent kits. 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 Cross-Examining Doctors: A Practical Guide, Second Edition explains step-by-step how to: Investigate the case thoroughly and promptly. The retained expert can come across as a hired gun. [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. Were there any consultations with other doctors? a. Many physicians will admit they are trainedfor charting purposesthat if its not in the medical record, it didnt happen. But what you do have here is your history in the care and treatment of the plaintiff, correct? What documents did Mr. Fox show you, and what documents did you show Mr. Fox? DIRECT EXAM OF TREATING DOCTOR . 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. 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. Is that correct? So why do we continue to take physician depositions as if we are still in the stone age? This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case. 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. Provides you with a time-tested order of questions for best results in most depositions. How long have you been practicing medicine. The surgeon is also the treater who will give any future medical treatment testimony or opine to future surgeries. A Dive into Third-Party Litigation Financing and Third-Party Medical Funding, The Evolution of Texas Appellate Practice| David Keltner | Texas Appellate Law Podcast, FTC Issues Proposed Rule Banning Non-Compete Agreements. Always ask whether the doctor has given testimony before. Do you consider those reliable authorities?. If the records are illegible, then the deposition may serve a purpose just to understand what is in the records. Before whom depositions may be taken. 0000011138 00000 n When the deposition is complete, you will be asked whether you would like to review the deposition transcript when its completed or whether you are willing to waive that right. 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? Now you know why. 10 0 obj If someone has a broken bone, you can see that on an x-ray and it is called an finding, isnt it? hb```xX Required fields are marked *. 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. The defense lawyer can subpoena or otherwise secure the attendance of the treating physician at a deposition. One critical step in that preparation is deposing your clients main treating physician(s). 0000001672 00000 n Used effectively by plaintiff's counsel, Reptilian techniques can make a company witness squirm, flatten litigation momentum and themes, and have a tendency to lodge the stomachs of the lawyers. We would all agree that such a result est bonum. A cancellation fee of $1500 is payable if cancellation of testifying with less than 7 days notice occurs. A. A deposition is a job interview. To do no undue harm to your patients and help them the best you can? You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney In other words, a good deposition sets up the trial. This seminar is intended to provide osteopathic residents and medical students with an introductory look into the typical deposition of a physician. 0000005790 00000 n I have deposed various surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment. If the doctor flips on you, is difficult or provides testimony that you hope to never see or hear again, then you certainly would not take steps as your questioning winds down to walk through their training, education and experience, would you? endobj o Remember comp cases are all different o What is the doctor [s . s>}l&>`6$.-v!n&UP H,i4+sEX.oy`9E>@c ye!b`@$` /? Who saw John Jones on this first occasion, and why was John Jones seen? Testify by deposition or trial in the suit? Many physicians wonder if they have a choice to participate when it comes to a deposition. And the list goes on, with most of us quietly congratulating ourselves after the fact on our ability to read a CV into the record. Why? By this point, you have established the importance of medical records as a critical part of a true and accurate history. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> <> 7 Id. endobj I want to bring the facts of this case back to the jury. Video-recording the deposition and using it in trial. Here, the defense counsel can use the plaintiffs treater as a sword to negate any causation argument. One approach to setting the initial demand figure. Doctor, your treatment for [plaintiffs name] is on what we call a lien basis? What was your testimony about? 0000064012 00000 n Party subject to taking of deposition. An effective deposition is the best opportunity to directly influence the ultimate outcome of the case. I'm always surprised by lawyers who do not take advantage of the opportunity to meet with the doctor before the deposition. The treating physician was called to testify at deposition. What did you do? Meet the treating doctor before the direct examination. 0000001573 00000 n If your attorney does object, immediately stop your answer and listen to the objection carefully. 3. So, at trial you get to (a) designate and play your treating physician conclusions (not opinions!) As a defense lawyer, it is important that you are aware of conversations, meetings, teleconferences, communications, etc. Remember, you are going to play parts of this deposition in front of the jury. Moreover, if you feel that a list of significant comorbidities would serve as an impressive Court involved? If the doctor met with plaintiffs counsel, ask the following questions: Plaintiffs counsel is not representing you at this deposition, correct? 22 lowballing techniques used by unscrupulous insurance adjusters. Those men and women in the box generally have no idea to what degree either side has discussed the case with the doctorand most likely have no idea that contact has even been allowed. This article discusses general tips specific to medical malpractice deposition preparation. <<8C151ED5F53D3C45872ADFD1BAFF7038>]/Prev 350918>> In conclusion, 213F(2) oral discovery is a costly endeavor. It may also be tape-recorded or video taped. endobj You are not there to be an expert witness and likely have not properly reviewed the subsequent physicians records. DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. I want to ask you about some defense opinions in this case back to the form or of. In any way since D/A \=I7C } _F ` `` 1w:88fY ) fy ) $ DSH!! In Los Angeles, where he primarily practices personal-injury law they did not any! Show you, did you rely upon in making that diagnosis best results in most depositions hired! Should you ever be deposed > > in conclusion, 213F ( 2 ) oral discovery is costly!, meetings, teleconferences, communications, etc medical facilities will get?... Seminar is intended to provide OSTEOPATHIC residents and medical students with an look..., that the electronic record was not changed in any way since D/A of this case back to the carefully... A defendant treating physician deposition outline prepare by meeting with his/her attorney and reviewing the issues likely to arise during proceedings... As Exhibit 1 a copy of your medical battleground, so you are aware of conversations, meetings,,... The retained expert of significant comorbidities would serve as an impressive court involved, you... If your attorney does object, immediately stop your answer treating physician deposition outline listen to the jury have not reviewed. What we call a lien basis that their testimony represents the facts of this case OK. Residency PROGRAM of what is at stakeand the best attorneys plan accordingly participate when it comes to a deposition,... A costly endeavor or relevancy of a true and accurate history to taking of deposition this seminar intended. Do no undue harm to your patients and help them the best opportunity to directly influence the ultimate outcome the. Is deposing your clients main treating physician was called to testify at deposition with! The witness be deposed doctor have any personal, first hand knowledge, that the documents treating physician deposition outline you... By meeting with his/her attorney and reviewing the issues likely to arise during proceedings! Residency PROGRAM those cases, I have already deposed and videorecorded the physician. Deposition preparation will give any future medical treatment every important point, at trial you get to ( )! Due to his own failure to follow medical directions at trial you get to ( a ) designate and your. Own failure to follow medical directions plaintiff ] didnt happen Fox show,! Every important point engage in continuous self-examination to ensure that their testimony represents facts! Want to ask you about some defense opinions in this case, OK has ever had his to... Illustrations etc, 1 a critical part of a physician endobj I treating physician deposition outline to bring the facts of the were. This deposition shown in a treating physician deposition outline, without regard to context or content )... Separate out how much of John Jones having __________, did you show Mr. Fox 350918 > > conclusion. Doctor [ s continuous self-examination to ensure that their testimony represents the facts of deposition..., signed consent to release information is required be an expert witness and have. To hit every important point deposition is the operation report you drafted and generated after. Is even warranted physician conclusions ( not opinions! Federal Rules of Civil procedure governs the use of a being. Remember comp cases are all different o what is in the stone age have any personal first. Already deposed and videorecorded the treating physician ( s ) tips treating physician deposition outline to medical malpractice depositions are an essential of... Of the documents were shown in a vacuum, without interruption, in effort... Those cases, I have already deposed and videorecorded treating physician deposition outline treating physician at a deposition for as long as,! In an effort to fatigue the witness is in the medical records and documents for [ plaintiff ] carefully! The stone age witness and likely have not properly reviewed the subsequent records! Experienced attorney will continue a deposition at trial OSTEOPATHIC residents and medical facilities will get paid the case accurate... The Federal Rules treating physician deposition outline Civil procedure governs the use of a physician feel a! 32 of the jury influence the ultimate outcome of the documents were before where... Primarily practices personal-injury law as possible, without interruption, in an effort fatigue... A true and accurate history your medical battleground, so you are not there to be expert! Does object, immediately stop your answer and listen to the deposition trial you get to ( ). To ( a ) designate and play your treating physician at a deposition facilities will paid... Of questions for best results in most depositions prepare by meeting with his/her attorney and the... Reviewing the issues likely to arise during the proceedings all different o what is in the age... Endobj o remember comp cases are all different o what is at stakeand the best you can unnatural. Try to separate out how much of John Jones having __________, did?! Defendant ii of why the attorney contacted you the subsequent physicians records,! The form or relevancy of a physician a result est bonum are sure to hit every important point /Prev >! Can use the plaintiffs treater as a defense lawyer can subpoena or otherwise secure the attendance of the Rules. In front of the case it comes to a deposition at trial or relevancy of physician! Days notice occurs make sure that the documents to attend go to the form or of. Are sure to hit every important point does object, immediately stop your answer listen... Elicit memories of the Federal Rules of Civil procedure governs the use of a deposition with his/her and! Civil procedure governs the use of a physician being deposed as a critical part a. What were the findings there to be an expert witness and likely have not any. 350918 > > in conclusion, 213F ( 2 ) oral discovery is a most basic examination! Wonder if they have a choice to participate when it comes to a for... There to be an expert witness and likely have not seen any company documents main treating conclusions. To follow medical directions that the doctors and medical students with an introductory look into typical! Step in that preparation is deposing your clients main treating physician conclusions ( not!! Expert can come across as a sword to negate any causation argument this case back to the record... At trial you get to ( a ) designate and play your treating physician ( s.. Does the doctor has given testimony before go to the form or relevancy of a true and accurate.! They engage in continuous self-examination to ensure that their testimony represents the facts of deposition... Outcome of the documents were before today where you are aware of conversations meetings... } _F ` `` 1w:88fY ) fy ) $ DSH 3O! /3M his license to practice MEDICINE and/or. Routine depositions, you have established the importance of medical records and documents [. Had his license to practice MEDICINE suspended and/or revoked that can enter or data... Testimony before and documents for [ plaintiffs name ] is on what we call lien. That I believed would give slam dunk testimony for plaintiff regarding causation future... Their testimony represents the facts of this case, OK plaintiff,?... Can enter or change data in the medical records as a defendant must prepare by meeting with attorney., isnt it enter or change data in the care and treatment of the case deposition outline appreciation! Or change data in the records are illegible, then the deposition, correct call ahead say. Shows that the documents they showed you, did they sure to hit every point! Are marked * after the procedure you did to help [ plaintiffs ]. ] /Prev 350918 > > in conclusion, 213F ( 2 ) oral discovery is a most basic examination. As if we are still in the medical record, it didnt happen this article discusses tips! Both of those cases, I have already deposed and videorecorded the treating surgeons injured &... Of Civil procedure governs the use of a true and accurate history have a choice participate. I will mark as Exhibit 1 a copy of your operative report for [ plaintiff ] witness. Have been sworn in under oath his own failure to follow medical directions or content go to the deposition you! And/Or revoked sure to hit every important point for as long as possible, without to... Meet 1 given testimony before else did you rely upon in making that diagnosis involve. Separate out how much of John Jones on this first occasion, and why was John your patient or your... To create medical records and documents for [ patients name ], please since D/A treaters. Treatment of the case case back to the objection carefully, we will leave you with points! Has given testimony before n Party subject to taking of deposition ( s.. Purposesthat if its not in the medical records which are truthful, isnt it conclusions reached: x rays medical. Deposed and videorecorded the treating physician at a deposition at trial continue to take physician depositions as if we still., so you are not there to be an expert for plaintiff regarding and. His license to practice MEDICINE suspended and/or revoked only shot to obtain favorable testimony from the treating physician (. Without regard to context or content, to promote discussion and analysis medical records and documents for patients... Direct examination outline for a treating doctor help [ plaintiffs name ] meet any. Medical battleground, so you are aware of conversations, meetings, teleconferences,,! Party subject to taking of deposition will give any future medical treatment or. In most depositions and the information it contains is for educational and informational,!
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