So why do it at the beginningbefore you know what they are going to say? Kim Hart's Deposing and Examining Doctors gives you both. The witness was then provided additional medical records after deposition and before trial, with no . The same is true for tolerance (or lack thereof) for a particular surgical procedure or medical device implantation. endobj On both of those cases, I have already deposed and videorecorded the treating surgeons. 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? How long have you been practicing medicine. Mr. DeSantis is a 2017 graduate of the Consumer Attorneys Association of Los Angeles Trial Academy. What is your occupation? Virginias Data Privacy Law Just Went Into Effect What You Should Know. Did you actually review x-rays or tests yourself? I'm always surprised by lawyers who do not take advantage of the opportunity to meet with the doctor before the deposition. What did you have to do in the . Are there any documents that you had or saw in that conference that are not here with you now? You may learn something about how the question could appropriately be answered from the objection. What did you do? <> 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? But the treater actually treated. But what you do have here is your history in the care and treatment of the plaintiff, correct? sample deposition questions for plaintiff. 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. Sec. (Who? Tell us about your medical background, starting with medical school. Board Certified by The Florida Bar in Health Law, OSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM. Sometimes ending a lawsuit, whatever way it ends, win or lose, relieves tension and pain, doesnt it? When the plaintiffs lawyer showed you those documents: They did not invite any of the authors of the documents to attend? Was John Jones referred to you by Mr. Fox [the attorney for the plaintiff]? 2 0 obj And the jury will be more inclined to believe your testimony. Is that a reasonable cost based on your training and experience to a reasonable degree of medical probability? 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. 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. When did you (including anyone in your clinic/medical organization) first examine John Jones after the accident of D/A? Tips for defending a deposition. Name - professional address >plaintiff's doctor? 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. Did plaintiffs counsel compensate you for your time? How did your management of plaintiff overlap with that of Dr.? These objections typically go to the form or relevancy of a question, or the question may involve some sort of privileged communication. Ask whether it was an an expert for plaintiff or defendant ii. 9. 52-148d. Doctor, do you have an opinion of whether Mr. (name of plaintiff/patient)'s accident of (state the date) was the producing cause of the (state the injury/injuries) condition for which you have been treating him? 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. This analysis can be seen in most soft tissue cases. Do you agree it is important when you look at a document to put it into context? You have seen and reviewed many medical bills in your field of medicine for treating patients and conducting [subject procedure]? A defense-hired doctor might say that [plaintiffs name] did not require the [procedure] based on their interpretation of the MRI films only do you determine whether a patient requires a [procedure] just by reviewing MRI films? [either a case brought by you, or a case involving other persons]. Insurance carriers are becoming more unreasonable. direct examination of treating physician. L between counsel for the plaintiff and the doctor before the first question is asked under oath. <> We met for the first time today when I introduced myself to you in advance of this deposition, correct? This line of questioning would generally fall into those reserved traditional outlines. This is an adversarial process, in which the patient's attorney will attempt to demonstrate that the physician's negligence injured the patient. i. <> The defense lawyer will also examine and ask questions about items shown if not previously covered.]. Instead, it is more akin to a marathon, where the individual with the most stamina wins. demonstrative, then itemize the comorbidities on a piece of paper as the doctor identifies each item as clinically significant. 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, Will the doctors, hospitals and other medical facilities wait for payment if I am unable to pay my bills as they are incurred? 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. Second, it provides you, the questioner, an opportunity to bring the line of questioning back to the documents that doctors are most familiar withmedical recordsand show, by analogy, that a single document, standing alone, does little to educate the physician on the issue at hand. Have you referred to any articles or texts in reviewing this case or in preparing your opinions or to testify in this case? . The defense offered to pay $40, the statutory "fact witness rate." . It is certainly not possible with every doctor, as some may have developed steadfast views against our product before we even serve the Notice. Permanent injury?2. Are there risks involved with [procedure]? Conduct discovery depositions that precisely and unambiguously pin down the doctor's interpretation of the relevant facts and his or her . 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]? More importantly, we are still discussing the Reptile theory today because, in many cases, it has worked. Board of Medical Specialties (www.abms.org) and determine whether the opposing expert has been board certified in her claimed specialty. 1. 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? Potential lines of questioning regarding placing documents in context may include the following: At this point, you should have the attention of both the doctor and jury. Attorney's checklist for evaluating cases. Did you know that in fact that John Jones had ___________? Always ask whether the doctor has given testimony before. Have you had any discussions with plaintiffs counsel about being compensated for your time meeting with them or reviewing documents? 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. 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). 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. Every deposition has an errata sheet, on which you can correct any errors to your testimony. If they are numerous, authenticate and mark each individual medical record that identifies a history of infarctions, diabetes, smoking, noncompliance, etc. An experienced attorney will continue a deposition for as long as possible, without interruption, in an effort to fatigue the witness. They did not provide any of the background data, underlying documents or emails leading up to that document? b. Depositions of key witnesses; c. Clinic records; Reviewed medical literature generally about this situation? 0 %PDF-1.5 % However, regardless of the outcome of the case, [plaintiffs name] is still responsible to pay your bills in full? This time is also an opportunity to revisit the clinically significant comorbidities and what impact they may have had on the plaintiffs injury, recovery or lingering sequelae. In federal court proceedings, the deposition may be your only shot to obtain favorable testimony from the treating physician. Roughly 200. For example, this term Secondary Gain is often used by doctors dealing with chronic pain management, isnt it? What did suit involve? A treating physician should also never give an opinion regarding another physicians medical care while being deposed. The deposition of the defendant physician is the crucial turning point of your medical negligence case. What represented the jurisdiction of each? Here is a most basic direct examination outline for a treating doctor.DIRECT TREATING DOCTOR. 11 0 obj Make an outline or a list of each and every test and what it is for. DIRECT EXAM OF TREATING DOCTOR . 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. 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. 0000011138 00000 n This seminar is intended to provide osteopathic residents and medical students with an introductory look into the typical deposition of a physician. 0000006588 00000 n The defendants lawyer will ask for details about all items which may be related to, or have similar bodily or mental conditions or symptoms to those complained of in this lawsuit. License to practice medicine ever revoked, suspended, restricted? Who asked you to this talk between yourself and Mr. Fox? These depositions focus on the substance of treatment, the patient's medical condition, and the patient's prognosis. 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 . Be confident. hbbd``b`$[AO What was your testimony about? As to each publication: is there anything in it that bears on the treatment of John Jones? 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. Know what the doctor . Before whom depositions may be taken. 15 0 obj Was the treatment you gave John Jones successful? !`.Yh That prior injury or history can affect a decision on how much of John Jones condition is due to his prior injury/history and how much is due to the accident he is suing about, cant it? There is a lot of hay to be made by trumpeting out unfortunate emails, draft company documents or memos that are unfavorable to the companyregardless of whether the plaintiff or their physician has ever seen or heard of them. So, as we get older, we all have degeneration in the spine, which includes the back and neck? 13 0 obj 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. <> In other words, a good deposition sets up the trial. Provides you with a time-tested order of questions for best results in most depositions. << /Length 3 0 R The defendants lawyer will check to be sure that the doctor brought. This article discusses general tips specific to medical malpractice deposition preparation. Were they lawyers retained by the plaintiff in this litigation? You had the benefit of the plaintiffs medical record and past illnesses, ailments and comorbidities? 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]. <> Almost all medical-legal reports will include a category or section listing the various documents that the plaintiff's doctor reviewed and/or relied upon in the preparation of his or her opinion and report. I have deposed various surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment. You did not even know the plaintiffs lawyer was going to show you [company documents]? 0000010560 00000 n <> This is the operation report you drafted and generated soon after the procedure you did? Maryland Personal Injury Lawyers. So why do we continue to take physician depositions as if we are still in the stone age? It means first, do no harm and is the ethical guiding principle in the medical profession. Hospital privileges ever denied? However, you now have the added benefit of having refreshed the physicians recollection while educating the jury on the relevant health issues and history saddling the plaintiffbefore the product was ever used and before the alleged injury occurred. The treating physicians know why they are using certain treatments and drugs and not others. The rule has two important subparts: Rule 26 (a) (2) (B) (the "classic" expert witness disclosure rule), and Rule 26 (a) (2) (C) (the "abrogated" expert witness disclosure rule). In coordination with the initial diagnosis, were there consultations with other doctors? Direct-Examination of Dr. Jackson (Treating Doctor). Ive written before about my belief that your trial notebook (and deposition notebook) should contain basic check lists or outlines for every examination you conduct whether you are an experienced or inexperienced trial lawyer. 3t@,PT.T++U;8"hPK~cTC4. Average plaintiff's counsel leave the doctor's direct testimony, in its most powerful form, unknown to the defense insurer. So in basic terms, a finding is something the doctor can see for himself, and a symptom is something the doctor is told exists? 3. Dr. _____, where is your practice located. trailer 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. Q. [7] If you do not win the case at the depositions, it is likely that you will meet the same fate at trial. Learn the medical issues, terms, and applicable standard of care. Here is my guide for direct examination of the treating doctor. 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. Please show me all the items you brought to comply with that subpoena. Here is a most basic direct examination outline for a treating doctor. 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. It is important that medical records should show significant items of the patients complaints and conditions and should show the doctors examination, diagnosis, and treatment, isnt it? And despite trying to get rid of it through other means, nothing was really helping, so he came to you for help? What did you discuss with plaintiffs counsel? o Remember comp cases are all different o What is the doctor [s . Future treatment required? When court order necessary. 0000010167 00000 n Why video-record your clients treating doctors deposition. (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 . Conclusions reached: x rays, medical illustrations etc, 1. Would you have liked to have known about it before you gave your opinions in this case? What was the primary purpose of [plaintiffs name] seeing you? 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. C. REFUSAL TO MEET 1. Remember, you are going to play parts of this deposition in front of the jury. INDEPENDENT MEDICAL EXAM (TREATING PHYSICIAN)-:99455 $1000 INDEPENDENT MEDICAL EXAMS (NONTREATING PHYSICIAN)-:99456 $1250 (LETTER Who saw John Jones on this first occasion, and why was John Jones seen? Treating Physicians as Non-Retained Experts There is a fine line between a retained medical expert and a non-retained treating physician. I never read from them, but rather refer to them to refresh my memory and then address the witness without the material. 0000008212 00000 n Effect in future(1) earning ability(2) activity: walking, climbing, kneeling etc(3) family life/activities(4) loss of enjoyment of life: pain/discomfort3. Code of Civil Procedure section 2025.340, subdivision (m) states in part: A party intending to offer an audio or video recording of a deposition in evidence under section 2025.620 shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered. As a treating physician. DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Even without expert testimony, the plaintiff's case should be made with the defendant's deposition. Where do the bills stand right now for everything for [plaintiffs name] your care, the [procedure], the surgery center? Surgeons are expensive to depose, but they are probably the star causation witness for a plaintiff. Do you consider those reliable authorities?. In our zeal to smooth out the rough edges in our defense of corporate witnesses, have we ignored the opportunity to take a newdare we sayoffense-focused approach to doctor depositions? endobj When you became a doctor, did you take an oath? 98. _Y>#Bx/:]jy H1Gg t0v]ge vKe!x8HJe^GL)4Dz:Js wKen~^xm]v\p&0CLjWhvw`A^//OU&w\%.2k|rql;)hV:z,t`wr#ps#n%#vflnfkaea]NcV1 _cr.xrvB#6x#Ez|c$}a. Bills for services to Mr. Fox or his legal firm? 166 0 obj <> endobj Inherent in this phrase is the understanding that physicians, as part of their work, must stay up to date with the evolving practice of medicine. history says by those individuals with clinical knowledge of the treatment, diagnosis, history, etc.? b. Cross-Examining Doctors: A Practical Guide, Second Edition explains step-by-step how to: Investigate the case thoroughly and promptly. The use of depositions at trial, particularly videotaped ones, has become increasingly common. 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. 9 0 obj 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 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. The term Secondary Gain in medicine means The gain derived from an illness, such as personal attention and service, monetary gains, disability benefits, and release from unpleasant responsibilities, doesnt it? Ever been charged with crime other than driving violations? Are you a social friend or business friend of Mr. Fox? The old idiom take them out to the woodshed harkens back to the days when a child or individual would be taken out of the house to the proverbial woodshed for some one-on-one behavioral modification. 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. Education (1) board certification/significance 4. 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? Here are some common tactics used by plaintiff attorneys deposing EPs: Plaintiff attorneys will try to get the EP to blame another . This field is for validation purposes and should be left unchanged. <> Once the deposition resumes, the attorney may then play on this "friendship" in an attempt extract additional testimony. Principle among these is the fact that the treating physician has a physician-patient relationship with your client. Follow his instructions and do not be intimidated by the examining attorney. But if someone that has non-symptomatic degeneration in their back or neck, is involved in a traumatic incident, that can light up the degeneration and make it painful? <>/Metadata 528 0 R/ViewerPreferences 529 0 R>> All of the other students in the first-year medical class. Medical school, internship, residency, fellowship? 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. 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. It may also be tape-recorded or video taped. Many physicians will admit they are trainedfor charting purposesthat if its not in the medical record, it didnt happen. 1 0 obj hb```@2Abl,'p-. Sec. CPLR: DEPOSITIONS Alarm fatigue is a safety and quality problem in patient care and actions should be taken to reduce this by, among other measures, building an effective safety culture. Now, is [procedure] something that patients get right away or is it a last resort when someone is in pain? He can be reached at ddesantis@alderlaw.com. But before I do, just so there is no confusion: Before your deposition in this case, you never even saw any of those documents? Individual websites for medical specialties often 5 Betsey Herd and Janabeth Evans, "Preparing for the Defense Medical Expert's Deposition", Trial, Vol. 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. 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 endobj Testified in any deposition or at trial before? Copies of all bills to John Jones, or to attorneys in this case, for services rendered regarding John Jones after D/A, plus statements of account showing amounts charged, balances paid and balance now due. Name professional address>plaintiffs doctor? Identify by name and connection to the case, everyonewho is in the room. endobj Through training, targeted witness preparation, issue-focused redirect examinations and effective motion practice, we have worked to neutralize and eliminate those jury-friendly sound bites.

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