What to ask in the treating doctors deposition. Did they discuss with you any studies that have been conducted on [product]? Whether you are a treating physician, a subsequent treating physician, a defendant in a lawsuit, or an expert hired for the case, you may be required to participate in a 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 . We'll outline 16 "best practices" that are critical to your success. Which cases are selected for surveillance. Keeping track of special damages and expenses. 0000007401 00000 n After you have been beaten up and down, would you pump the brakes and show the jury what an educated, upstanding, well-published and well-credentialed healthcare provider this individual is? Direct-Examination of Dr. Jackson (Treating Doctor). 0000009006 00000 n You have testified in the past as an expert on other cases on reasonable cost of medical treatment? In a personal injury case one of the most important witnesses is the treating doctor. 2 0 obj Did you try to separate out 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? Sec. For example, on a letter, who has possible access to edit the copy? Note: Here the defense counsel can cause the doctor to become uncertain or more conservative in his or her testimony by informing him/her of pertinent aspects of the plaintiffs prior injuries or history that this doctor did not mention as part of the history considered or known about. Did plaintiffs counsel compensate you for your time? 1:53 Practice Tip: Ten Things to Cover in Every Deposition B. 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 Have you and Mr. Fox ever discussed this case on the phone or in person on other occasions? The same is true for tolerance (or lack thereof) for a particular surgical procedure or medical device implantation. 1. The remaining eleven represent deeper dives. Average plaintiff's counsel leave the doctor's direct testimony, in its most powerful form, unknown to the defense insurer. 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 . 1. When you became a doctor, did you take an oath? What does your practice of (orthopedics) involve? Mr. DeSantis is a 2017 graduate of the Consumer Attorneys Association of Los Angeles Trial Academy. In federal court proceedings, the deposition may be your only shot to obtain favorable testimony from the treating physician. Fox refers to the name of the plaintiffs attorney. Always request to review the transcript! 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? %PDF-1.4 % Remember, you are going to play parts of this deposition in front of the jury. Dates, nature, tests; b. <> The short answer to this question is "yes.". The first five are bitesize. 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? xn6wTt"``iQHS7qwv#L,~!NT'O6Z}/BN?axz\.+T\ *tPAGjo?R=n8Z.~mT^..?,vKDc x S: " 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. For each examination I revise them to fit the particular situation involved. Bills for services to John Jones? Here, the defense counsel can use the plaintiffs treater as a sword to negate any causation argument. Asked you to tell jury about him? Identify by name and connection to the case, everyonewho is in the room. What medical history was obtained from John Jones? <<8C151ED5F53D3C45872ADFD1BAFF7038>]/Prev 350918>> And all caused from the subject incident from [date of loss]? In conclusion, 213F(2) oral discovery is a costly endeavor. Back in the day, one of the first topics covered at the deposition was the physicians credentials. [The defense lawyer will obtain and mark as Exhibit. 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. 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. You do not know what is going to happen to John Jones in the future, do you? << /Length 3 0 R Fc MO4d. Nn%U(q:x 4q)yU c0n2'' ;{G%"rD8[d}K "vALvSmmf%]e9G`7eOLDgW-v"{sh:.v1Jm8!1@c>P ?~O &p+)! 0000048138 00000 n Please summarize for us briefly what John Jones was seen for, and what treatment he received during that period from the first time he was seen until D/A. thorough outline of topics typically addressed when deposing a medical expert in a car wreck case. First, the attorney must know the file. As a defense lawyer, it is important that you are aware of conversations, meetings, teleconferences, communications, etc. Deposing these well known, flagged, treaters would simply increase litigation costs and not accomplish anything for defense counsel. Permanent injury?2. You had the benefit of the plaintiffs medical record and past illnesses, ailments and comorbidities? room. Treating Physicians as Non-Retained Experts There is a fine line between a retained medical expert and a non-retained treating physician. stream Findings; D. ROLE IN CASE. How does my lawyer make sure that the doctors and medical facilities will get paid? The preparation and effort expended in this deposition determines the defendant's assessment of the case. In addition, we will leave you with ten points to remember should you ever be deposed. An expert witness's deposition is almost always taken. Privileges in hospitals in the area? What medical history was obtained from other physicians or from records? 11 0 obj <> The James T. Allan Award is an award given to a first-year medical student for outstanding achievement in research. Dr. _____, where is your practice located. Every deposition has an errata sheet, on which you can correct any errors to your testimony. J&zXLEn& "( [2mf#'cwvm/*Uz/MealffAc,sX19 v @@;@R`q9 9b Did plaintiffs counsel say or suggest we were invited but did not show up? You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney 0000011138 00000 n What books on the diagnosis or treatment of [conditions diagnosed] are in your personal library? %%EOF 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. 0 It means first, do no harm and is the ethical guiding principle in the medical profession. This proactive tactic leads to better settlements for the 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. Additionally, if the physician wishes to charge for his time, he should work this out with counsel prior to the deposition. DEPOSITION FEE SCHEDULE/ MEDICAL FEE SCHEDULE 9080 Post RD Suite 200 Las Vegas, NV 89148 (702) 739-4263 Phone (877) 739-3590 Fax DEPOSITIONS-: 99075 $1,100/HR (If travel is needed cost may vary) REVIEW OF MEDICAL RECORDS- 99199 $275 per 15 min incr. Daniel DeSantis is an attorney at Alderlaw, PC in Los Angeles, where he primarily practices personal-injury law. Testified in any deposition or at trial before? Is that a reasonable cost based on your training and experience to a reasonable degree of medical probability? By Mike A. D'Amico, Esq.July 2012 In short, yes. 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 . Did they discuss with you any internal company documents? We would all agree that such a result est bonum. Saves you time in preparing your deposition outline. endobj deposition treating physician. Of course not. Check. 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)? o Remember comp cases are all different o What is the doctor [s . 0000003549 00000 n And do you believe [plaintiffs name]s injury that you treated with [procedure] was a result of the subject incident that occurred on [date of loss] to a reasonable degree of medical probability? 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 . But if someone says they have a headache, you have to take their word for it, and it is called a symptom, isnt it? The defense offered to pay $40, the statutory "fact witness rate." . Provides you with a time-tested order of questions for best results in most depositions. Having now laid the foundation for the plaintiffs health condition and having taken a trip through time leading up to the allegations at issue, you must then make the call to determine how deep you want to go regarding substantive opinions about the product, outcomes, diagnosis and prognosis. Date of suit? Kim Hart's Deposing and Examining Doctors gives you both. DIRECT EXAM OF TREATING DOCTOR . Tried, settled or still ongoing? endobj What did you each say about these documents? What did it accomplish? 2 0 obj By this point, you have established the importance of medical records as a critical part of a true and accurate history. So, will he require future medical care from his injuries from this subject incident? The settlement style of large and conservative insurers. Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. Since the publication of Reptile: The 2009 Manual of the Plaintiffs Revolution some 10 years ago, we have seen an evolution of tactics and styles in the way depositions of company witnesses have been taken in personal injury litigation. <> Be confident. When one undergoes a procedure like the one [plaintiffs name] underwent, does that mean they are going to be in the clear without the need for future medical care moving forward? In the present study, an . For the plaintiff's lawyer, a lot of the work required for the deposition of a treating physician takes place just before the deposition begins. Evidence of this standard of care must be presented through a similar health-care provider as the defendant whose conduct is in Read More Did they discuss with you any scientific literature? We will highlight the basic format of a deposition, along with many of the tricks and tactics often used by deposing attorneys. Can you tell the jury about your educational background? 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? Pre-payment is required for all services. Consequently, we all can leave here knowing there is no mistake that [summarize again]. Learn the medical issues, terms, and applicable standard of care. Austin, Texas 78731 (512) 346-5688 . How insurers view personal injury claims. Nailing your deposition is tall order. deposition of pain management doctor. 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? What was content of report?). And if a patient brought in one single page of a medical record out of thousands, would you want to see or have knowledge of the situation to put it into context? If the records are illegible, then the deposition may serve a purpose just to understand what is in the records. 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 For physicians, depositions are stressful and unnatural experiences. 6 0 obj Did you try to separate out how much of John Jones condition might be due to his own failure to follow medical directions? 0000047880 00000 n This is an adversarial process, in which the patient's attorney will attempt to demonstrate that the physician's negligence injured the patient. But it doesnt mean we shouldnt try. Depositions usually in the office of an attorney. b. Depositions of key witnesses; c. Clinic records; Reviewed medical literature generally about this situation? The defendants lawyer will specifically ask if the following are present now in the room. Q. A deposition is a process whereby witnesses provide sworn evidence. Please show me all the items you brought to comply with that subpoena. endstream Since the deposition, you have not seen any company documents? See 28 U.S.C . (Who? 0000010560 00000 n Additionally, there may be other participants involved as well. 4. Ask whether their hospital privileges have ever been suspended or provoked. 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. You performed a [L4-5 discectomy and decompression] procedure for [plaintiffs name] after more conservative care failed to help his [back] pain? 7 Id. Of course, a revolutionary, game-changing deposition may not be possible with every case. 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. 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]. [7] (1) nature/expense reasonable probability4. 2. A deposition is not to find out the facts. 14 0 obj All of my outlines are very simple and basic. The tired practice of following an outline loosely based on Introduction, Credentials, Records Review, Opinion and Thank You for Your Time, Doctor is over. 8 Id. 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. 2023 by the author. I have deposed various surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment. 0000003806 00000 n Some treaters will testify that they cannot answer how the accident affected the pre-existing injury, which is useful to defense counsel. While there is no substitute for being prepared, you can take an effective deposition "on the fly" by remembering five essential questions and their logical subquestions: 1. Who engaged you in this case. How long did you spend reviewing those additional items in preparation for this deposition? Cane/walker/brace/cast why & for how long. So even if the person isnt consciously increasing their pain, the end of a lawsuit may be a source of relief of tension and pain? 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. Did they show you any scientific literature? 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. Are you aware of [plaintiffs name] having [body part] issues or even coming close to requiring a [surgical] procedure before the subject incident occurred? 0000001672 00000 n Would you have liked to have known about it before you gave your opinions in this case? Passed specialty board for the specialty practiced? What type of medicine do you practice. Does Mr. Fox or his office refer patients to your office? But you have to ask yourself this question: Why qualify early? I have two cases right now in my personal portfolio (way more firmwide) where I took the Moradi depositions prelitigation and filed suit against a newly discovered employer. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 12 0 obj <> Requirements for taking of depositions. 3. [The defendants lawyer will obtain and have court mark it as an Exhibit. 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. Do the tables come outfitted with ashtrays for our smokes and carafes of stale water with cloudy ice cubes? As to each of the above classes of documents, after marking the exhibit, the defendants lawyer will ask if it is a printout of an item maintained as an electronic data file. endstream endobj 167 0 obj <> endobj 168 0 obj <> endobj 169 0 obj <> endobj 170 0 obj <>/ExtGState<>/Font<>/ProcSet[/PDF/Text]/Properties<>>> endobj 171 0 obj <> endobj 172 0 obj <> endobj 173 0 obj <> endobj 174 0 obj <> endobj 175 0 obj <> endobj 176 0 obj <> endobj 177 0 obj <>stream 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. Ever had treatment for chemical dependency? 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 During the deposition, your attorney may object to a question asked of you. Over time, however, we have adapted. Have you referred to any articles or texts in reviewing this case or in preparing your opinions or to testify in this case? 5 (May 2004). Insurance carriers are becoming more unreasonable. All files and records of the doctor and his clinic or medical organization regarding John Jones. Lets discuss why. Was John your patient or of your clinic/medical organization before D/A? A deposition is not a sprint to the finish. You were served with a subpoena asking you to bring a number of items to this deposition, werent you? So in basic terms, a finding is something the doctor can see for himself, and a symptom is something the doctor is told exists? These can range from emergency room physicians, primary care doctors, chiropractors, surgeons, pain doctors and physical therapists. \a:b%?#>h'o=*s+a0xdhu9CFEXMtgoQ+,qkH +Ps3)Pc One treater that is normally deposed is the surgeon. 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? 13 0 obj Who asked you to this talk between yourself and Mr. Fox? 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. % 52-148e. 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. The first time you saw the documents were before today where you are being recorded and have been sworn in under oath? One approach to setting the initial demand figure. 40, No. Hospital privileges ever denied? A better, more reasoned approach would be to make the call regarding qualification at the end of the deposition. Court involved? In personal-injury actions, treating physicians are often able to provide valuable testimony in support of the plaintiff's case. ~Z#'tqkCIj.Qft&QR Is deposing a plaintiffs treating physicians worth it for the defense attorney? What represented the jurisdiction of each? All of the other students in the first-year medical class. They certainly did not show them the documents or timeline surrounding whatever issues were discussed or referenced therein. Depositions in civil actions and probate proceedings. 0000030483 00000 n Arguably, some of the most important testimony in a pharmaceutical or medical device case comes from the treater, prescriber or implanting physician. Both sides now approach the corporate deposition with a newfound appreciation of what is at stakeand the best attorneys plan accordingly. [either a case brought by you, or a case involving other persons]. So what about us defense lawyers? Copyright What conclusions, opinions did you reach and what do you intend to testify to at trial? 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 form is for the defense to use in examining the plaintiffs treating doctors. The defendants lawyer will check to be sure that the doctor brought. If the records do not reflect a causal link, then the physicians opinion as to your product or device should be consistent. 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. So, that oath you took when you became a doctor, to help your patients as best you can, applies to [plaintiffs name]? startxref Now you know why. [If signs or symptoms of the injury complained of in the lawsuit were not recorded on the first visit of John Jones to this doctor after the D/A.] Ever been charged with crime other than driving violations? Rule 32 of the Federal Rules of Civil Procedure governs the use of a deposition at trial. 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? And then on top of those two things, that is when you look at an MRI to correlate all the findings together? Were there any consultations with other doctors? <> How claims are handled by insurance adjusters. Gives you a low-cost way to put together your deposition outline questions. It is important to review these documents for the following two purposes: Whether the plaintiff's doctor had a complete medical brief Were you paid, or are you to be paid, for that time, by Mr. Fox? Or, at least it should be. 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. Do you consider those reliable authorities?. If the doctor met with plaintiffs counsel, ask the following questions: Plaintiffs counsel is not representing you at this deposition, correct? 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. What else did you review in preparation for this 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. about your clients injuries and treatment and then (b) call your retained doctor to the stand to discuss it (along with other matters). radiologist deposition questions. Professional experience5. When did you (including anyone in your clinic/medical organization) first examine John Jones after the accident of D/A? 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. An effective deposition is the best opportunity to directly influence the ultimate outcome of the case. Will the doctors, hospitals and other medical facilities wait for payment if I am unable to pay my bills as they are incurred? 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. Fittipaldi USA, Inc. v. Castroneves, 905 So. 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. I use them as a reminder list to be sure I cover each point I need to cover. C. REFUSAL TO MEET 1. Education(1) board certification/significance4. "Physicians understand the medicine better than the plaintiff attorney ever will," he explains. 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 The defense lawyer can subpoena or otherwise secure the attendance of the treating physician at a deposition. You may learn something about how the question could appropriately be answered from the objection.
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