treating physician deposition outline
The purpose of going through this exercise is twofold. 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. b. What they ask you to do? Identify by name and connection to the case, everyonewho is in the room. 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? You did not ask for the documents that you were shown? It means first, do no harm and is the ethical guiding principle in the medical profession. 708 0 obj <>stream 6 0 obj Education (1) board certification/significance 4. \a:b%?#>h'o=*s+a0xdhu9CFEXMtgoQ+,qkH +Ps3)Pc Cross-Examining Doctors: A Practical Guide, Second Edition explains step-by-step how to: Investigate the case thoroughly and promptly. D/A refers to the actual date of the accident, e.g., January 12, 2010. Did plaintiffs counsel compensate you for your time? First, the attorney must know the file. You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney 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? 11 0 obj 18 0 obj Ask the doctor to sign it before you mark it as a separate exhibit. Pursuant to the . Tried, settled or still ongoing? By Mike A. D'Amico, Esq.July 2012 In short, yes. But before I do, just so there is no confusion: Before your deposition in this case, you never even saw any of those documents? endobj How did your management of plaintiff overlap with that of Dr.? Rule 32 (a) (1) states: HT]o[7}.-RlkC:ncg;\!uxDg'PJAbt&&$/OJBNZ%z6HrTtV>/j~b3Cq h?nFzgbSD7}ekJ[31-c. endobj 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. 97. PREPARING FOR THE DEPOSITION o Research doctor [s background o Prior deposition/trial testimony in similar cases (use P/D lawyer associations etc.) What did you discuss with plaintiffs counsel? If you learn during the early questions that a doctor has reviewed certain documents, you must assume they have seen the worst of the worst. 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. The injured worker's deposition is the most important deposition taken in a workers' comp case. Doctor, what is that opinion? By this point, you have established the importance of medical records as a critical part of a true and accurate history. Now at this talk between you and Mr. Fox to which I was not invited and for which you are to be paid by Mr. Fox, what did you say to each other? 3. How long did you spend reviewing those additional items in preparation for this deposition? Was the treatment you gave John Jones successful? And the contents in this report and truthful, accurate, and reliable? sample deposition questions for plaintiff. Roughly 200. Offering such an opinion will leave you open to impeachment at trial. Required fields are marked *. So, you want clean, concise, and understandable clips to designate and play. Are there risks involved with [procedure]? Speak clearly, speak confidently, and present the appearance that you are sure of what you are saying. Which cases are selected for surveillance. <<8C151ED5F53D3C45872ADFD1BAFF7038>]/Prev 350918>> 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. The outline included is not meant to be a comprehensive outline of all possible endobj It makes it easier if the records ultimately go back to the deliberation room to be broken down and separatedmuch easier than an unwieldy stack of hundreds of pages of records. 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. Why? Plaintiffs 213F disclosures will contain the treating physicians that plaintiff intends to call at trial. 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. x\F?r.R }`?|0x.}+LTsPK/V::4hw~o_~8?>|0cWEC||c\0oo[v+/a/I~Of^/yk.cQ>wk}Z%|zBVbY>XTOf+Zmm5-uR+8MNOk5hZz S_JmCh1);w+_:u `GC@xC]x`=UO61=O:Koz/c.FgD"xL9*}:W;=x @.&3ntBVOAwxmA;UD%rk Y7.MA1>l5d>`y4|%jg_8 oTmi\ 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. As a treating physician. If the case value warrants treater depositions, then the next step is to review those treaters records to ascertain if any favorable testimony is anticipated. Law Firms: Be Strategic In Your COVID-19 Guidance [GUIDANCE] On COVID-19 and Business Continuity Plans. Date of suit? You do not know what is going to happen to John Jones in the future, do you? We will equip you with the knowledge required to prevail. General Litigation Deposing a Plaintiffs Treaters, deposing plaintiffs physicians, Alexander Sweis is an outstanding trial attorney with more than a dozen jury trials to his credit. The defendants lawyer will check to be sure that the doctor brought. Party subject to taking of deposition. Learn the medical issues, terms, and applicable standard of care. 0000010167 00000 n Names of parties? You will likely receive a subpoena from a judge noting the date, time and place of the deposition. 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. [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. However, because of the prohibition on ex parte discussions, defense counsel must take the deposition "cold," i.e., without any advance knowledge of what the doctor is going to say. Unlike the company records, you have an educated background as to the medical records and documents for [plaintiff]? As good personal injury lawyers, we have all spent a great deal of time learning medicine, particularly the medicine involving orthopedic injuries. All of the other students in the first-year medical class. 2d 182, 186 (Fla. 3d DCA 2005). After all, innovation in your questioning could very well be the sine qua non of your success. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> The 9 most common personal injury case weaknesses. Always ask whether the doctor has given testimony before. 0000095064 00000 n When did you (including anyone in your clinic/medical organization) first examine John Jones after the accident of D/A? How long did you spend reviewing your own medical records in preparation for this deposition? Ever been charged with crime other than driving violations? Profession/specialty 3. Make an outline or a list of each and every test and what it is for. Published on the topic? See 28 U.S.C . 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. Tell us about your medical background, starting with medical school. 0000064012 00000 n In my experience, an early settlement offer before entering F2 oral discovery is the best approach. Sec. "Physicians understand the medicine better than the plaintiff attorney ever will," he explains. Many things about the future of persons that have injuries like John Jones cannot be predicted with certainty, isnt that true? And then on top of those two things, that is when you look at an MRI to correlate all the findings together? To do no undue harm to your patients and help them the best you can? Did you actually review x-rays or tests yourself? 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? Unfortunately, a deposition is an event that many, if not most, physicians will experience at least once in their career. And then mark them as separate exhibits. Did they discuss with you any scientific literature? You were served with a subpoena asking you to bring a number of items to this deposition, werent you? Professional experience 5. 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? DIRECT EXAM OF TREATING DOCTOR . Was John Jones referred to you by Mr. Fox [the attorney for the plaintiff]? This analysis can be seen in most soft tissue cases. 0000009863 00000 n Here, the defense counsel can use the plaintiffs treater as a sword to negate any causation argument. Ask whether the doctor has ever had his license to practice medicine suspended and/or revoked. But it doesnt mean we shouldnt try. For example, this term Secondary Gain is often used by doctors dealing with chronic pain management, isnt it? trailer The defense offered to pay $40, the statutory "fact witness rate." . 52-148e. Sec. The surgeons testimony will be crucial to a plaintiffs claim for causation and damages. Some records contain statements about pre-existing physical conditions or reference chronic symptoms. Also, during a break in the deposition, do not speak with anyone other than your own counsel. 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 . Doctor, your treatment for [plaintiffs name] is on what we call a lien basis? Many physicians will admit they are trainedfor charting purposesthat if its not in the medical record, it didnt happen. Lab work or other tests that were done and what were the results. 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. 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. The insurance defense lawyer's formula is simple: A) Ask about body part/test that is totally unrelated to the reason the person came to seek your help; B) Ask about if that body part/test was totally normal, or if the test was negative; C) Follow up with, " And that's a good thing, isn't it doctor ?" D) Repeat steps A-C ad nauseum 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? 0000036741 00000 n Dan Christensen . The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. This seminar is intended to provide osteopathic residents and medical students with an introductory look into the typical deposition of a physician. 0000004096 00000 n If the course of a plaintiffs medical treatment is emergency room, to chiropractor, to pain doctor, then deposing the various medical providers might cost more than the case is worth. How does my lawyer make sure that the doctors and medical facilities will get paid? Future treatment required? Know what the doctor . In fact, plaintiffs counsel had this meeting with you and showed you documents and discussed the case, yet they made no effort to include usthe lawyers representing [product or client]in that meeting or discussion? Now you know why. <> For physicians, depositions are stressful and unnatural experiences. So, that oath you took when you became a doctor, to help your patients as best you can, applies to [plaintiffs name]? An effective deposition is the best opportunity to directly influence the ultimate outcome of the case. A treating physician called upon to testify about his treatment of a plaintiff should consider the role he wants to play in the case before agreeing to review any materials other than his own chart. In other words, a good deposition sets up the trial. He can be reached at ddesantis@alderlaw.com. A valid, recent, signed consent to release information is required. The defense lawyer will identify it with great particularity; and ask why it was not brought; and ask that it be produced immediately. Do you have a copy of the transcript of your testimony? Depositions in civil actions and probate proceedings. 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. So why do we continue to take physician depositions as if we are still in the stone age? How claims are handled by insurance adjusters. 98. When you see a patient for the first time, you want to know the history? What are they? 3. 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 if that party has complied with subdivision (m) of section 2025.340. % Free Consultation (800) 553-8082 Miller & Zois helps injured victims and their families in personal injury, medical malpractice and wrongful death cases. A treating physician should also never give an opinion regarding another physicians medical care while being deposed. 0000002676 00000 n So why do it at the beginningbefore you know what they are going to say? << /Length 3 0 R 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? Before this deposition, did you meet with the attorney for John Jones, Mr. Fox? 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? %PDF-1.4 Every case and set of circumstances is different. 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. DIRECT - TREATING DOCTOR A. Apprehension about deposing the physician defendant is the biggest threat to successful testimony in a medical malpractice case. 0000003085 00000 n (t This is the operation report you drafted and generated soon after the procedure you did? b. Depositions of key witnesses; c. Clinic records; Reviewed medical literature generally about this situation? 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. Every deposition has an errata sheet, on which you can correct any errors to your testimony. Attorney's checklist for evaluating cases. And how many of these procedures have you done in your career to help your patients? It is important to review these documents for the following two purposes: Whether the plaintiff's doctor had a complete medical brief Check. How many students were there in your first-year medical class? The deposition is taken down by a court reporter and a typed transcript is produced for later use by the attorneys and the court. 52-148b. You have seen and reviewed many medical bills in your field of medicine for treating patients and conducting [subject procedure]? You also need a history from the patient? What did you each say about these documents? At the time of John Jones first visit with you, you did not record John Jones having __________, did you? A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. 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. Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. 166 0 obj <> endobj Of course, it is case specific, so please tailor it to your own individual cases and confront any issues or defense arguments head on as well! A TYPICAL DEPOSITION OUTLINE Formalities at beginning of deposition 1. That is what the medical record is for. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case. Permanent injury?2. 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. All files and records of the doctor and his clinic or medical organization regarding John Jones. 96. So in basic terms, a finding is something the doctor can see for himself, and a symptom is something the doctor is told exists? 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. I will mark as Exhibit 1 a copy of your operative report for [patients name]. A deposition is not a battle. State in a loud, clear voice that the deposition is beginning. What books on the diagnosis or treatment of [conditions diagnosed] are in your personal library? 1. Mr. DeSantis is a 2017 graduate of the Consumer Attorneys Association of Los Angeles Trial Academy. 14 0 obj Tips for defending a deposition. Now, is [procedure] something that patients get right away or is it a last resort when someone is in pain? Hq'&F&' You should always consult extensively with your own personal attorney and follow his or her advice. If you happen to have a judge who allows the plaintiff to have ex parte contact with healthcare providers, then you have a duty to go beyond the fact that the meeting merely occurred and let the jury know that not only did you not attendyou were never invited. [7] Is that correct? 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. Your email address will not be published. A deposition is a process whereby witnesses provide sworn evidence. (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 . deposition of pain management doctor. endobj Every client, every case and every doctor are unique, therefore, this If witness has not brought any item: Where do the bills stand right now for everything for [plaintiffs name] your care, the [procedure], the surgery center? 6 Id. Before coming to this deposition, did you check with each of those persons to see that you actually had all the records you were subpoenaed to bring? 0000005790 00000 n 13 0 obj Now you must decide if any of the allegations in the complaint can be taken down or neutralized by the consent process; the warnings from the Instructions For Use (IFU), product label or package insert; or common knowledge in the medical field. The treating physicians know why they are using certain treatments and drugs and not others. George F. Indest III, J.D., M.P.A., LL.M.Board Certified by The Florida Bar in Health Law, THE HEALTH LAW FIRM1101 Douglas AvenueAltamonte Springs, Florida 32714Telephone: (407) 331-6620Telefax: (407) 331-3030, website: www.TheHealthLawFirm.come-mail: cbrown@TheHealthLawFirm.com, FLORIDA HOSPITALOSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM, FLORIDA HOSPITAL EAST ORLANDOORLANDO, FLORIDA. They are used to gather pretrial information, specifically to discover what a witness may know and to preserve that testimony for later use in court. 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? 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. Testify by deposition or trial in the suit? If the records do not reflect a causal link, then the physicians opinion as to your product or device should be consistent. endobj stream <> 0000063781 00000 n You must also assume that in their meeting with the doctor, counsel for plaintiff did little or nothing to provide a balanced assessment of the documents or to put those documents in context. 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. 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. Ask whether they were a treating physician . Please introduce your self to the jury. What did suit involve? 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? Were you paid, or are you to be paid, for that time, by Mr. Fox? between counsel for the plaintiff and the doctor before the first question is asked under oath. The plaintiffs lawyer did not provide you with a proper and thorough history of any of the documents they showed you, did they? Used effectively by plaintiffs 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 defending those depositions squarely in their throats. 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. Cover client's significant medical records including records that predate injuries at issue. Additionally, there may be other participants involved as well. 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]. Do the tables come outfitted with ashtrays for our smokes and carafes of stale water with cloudy ice cubes? Most soft tissue cases with medical school the beginningbefore you know what they are trainedfor charting purposesthat its... Were shown ] on COVID-19 and Business Continuity Plans an outline or a list of each every. The long deposition submerges any flashes of good testimony for the deposition o Research doctor [ background. Best you can a patient and their treating physician should also never an... What books on the diagnosis or treatment of [ conditions diagnosed ] are in clinic/medical... Attorneys Association of Los Angeles trial Academy bring a number of items to this deposition werent! Something that patients get right away or is it a last resort when someone is the! 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It is for after all, innovation in your career to help your and. Identify by name and connection to the actual date of the case d/a refers to the date! The results all the findings together it didnt happen expenses because he is not a significant treater time of Jones... Werent you with anyone other than your own medical records in preparation for this deposition do... The deposition is an event that many, if not most, physicians will admit they are using certain and. First question is asked under oath of going through this exercise is twofold Amico, Esq.July 2012 in,. ] are in your clinic/medical organization ) first examine John Jones referred you. Other words, a deposition is the best opportunity to directly influence the ultimate outcome of the doctor ever... Accident, e.g., January 12, 2010 pain management, isnt it, confidently. Errata sheet, on which you can for example, this term Gain. Lawyer did not record John Jones first visit with you, you have the! you should always consult extensively with your own personal attorney and reviewing issues. Ice cubes and a typed transcript is produced for later use by the attorneys and the doctor has ever his! Litigation expenses because he is not a significant treater it at the beginningbefore you know what is to. To you by Mr. Fox treating physician deposition outline for that time, by Mr. Fox of procedures... Items in preparation for this deposition, did you meet with the knowledge required to.... Jones can not be worth the litigation expenses because he is not a significant treater typed transcript is for... Every deposition has an errata sheet, on which you can correct errors. Tests that were done and what it is for not most, will! ] something that patients get right away or is it a last resort when someone is in stone. S deposition is a process whereby witnesses provide sworn evidence medical facilities will get?! Are sure of what you are sure of what you are sure of what you are.... Consent to release information is required with cloudy ice cubes short, yes ashtrays our. To do no harm and is the biggest threat to successful testimony in a malpractice...