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. Many physicians will admit they are trainedfor charting purposesthat if its not in the medical record, it didnt happen. Unfortunately, a deposition is an event that many, if not most, physicians will experience at least once in their career. Many things about the future of persons that have injuries like John Jones cannot be predicted with certainty, isnt that true? endobj 1. Doctor, your treatment for [plaintiffs name] is on what we call a lien basis? It is not legal advice. Failure of John Jones to follow directions of doctors could have affected his present condition, couldnt it? Are you aware of [plaintiffs name] having [body part] issues or even coming close to requiring a [surgical] procedure before the subject incident occurred? Requirements for taking of depositions. What facts did you rely upon in making that diagnosis? So, in your deposition notice, state: Please take notice that the deposing party intends to cause the proceedings to be recorded stenographically, through the instant visual display of testimony and by videotape. You did not ask for the documents that you were shown? PREPARING FOR DEPOSITIONS A. Depositions as Part of an Overall Discovery Plan 1:50 Reviewing the Case 1:51 Establishing Goals 1:52 Preparing an Outline 1:52.1 Practice Tip: When Making a Deposition Outline, Should You Write Out Every Question? As an expert witness. endobj Should you fail to appear, the defendant may petition the court for recovery of any expenses incurred as a result. o Remember comp cases are all different o What is the doctor [s . Did you meet with any lawyers prior to the deposition? In the below checklist, the plaintiff is referred to as John Jones and Willy Fox or Mr. What did you discuss with plaintiffs counsel? Testify by deposition or trial in the suit? 0000001907 00000 n 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. 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 . Proximate cause of injury: reasonable probability, 1. Opinion re plaintiff honest or exaggerated/fake2. 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. They know what future treatment they recommend and why. When you are done, have the doctor clearly confirm what the list represents. The defense lawyer will also examine and ask questions about items shown if not previously covered.]. 8 Id. Depositions usually in the office of an attorney. 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? 0000003549 00000 n This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case. What conclusions, opinions did you reach and what do you intend to testify to at trial? 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 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. 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. endobj PREPARING FOR THE DEPOSITION o Outline the critical issues in your case and what opinion you need from the doctor on each . When a patient sues for malpractice, the patient's attorney will take the defendant physician's deposition. Gives you a low-cost way to put together your deposition outline questions. A valid, recent, signed consent to release information is required. 0000004096 00000 n Many physicians wonder if they have a choice to participate when it comes to a deposition. 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. thorough outline of topics typically addressed when deposing a medical expert in a car wreck case. <>/Metadata 528 0 R/ViewerPreferences 529 0 R>> In federal court proceedings, the deposition may be your only shot to obtain favorable testimony from the treating physician. 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? 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. Fc MO4d. Nn%U(q:x 4q)yU c0n2'' ;{G%"rD8[d}K "vALvSmmf%]e9G`7eOLDgW-v"{sh:.v1Jm8!1@c>P ?~O &p+)! One of the most effective ways to attack a treating physician's opinions under Daubert is when those opinions are based upon an incomplete, if not outright wrong, understanding of the plaintiff's pre- and post-accident medical history. Once the deposition resumes, the attorney may then play on this "friendship" in an attempt extract additional testimony. Date of suit? J{Hc8Dh 8o4 F\I)2hI2eiH\QiH+?l)mD$kSIl?$Qp Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. Do our court reporters come to the conference room with a pad and pencil ready to write down every word? Did they discuss with you any scientific literature? 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. 7 Id. Tell us about your medical background, starting with medical school. 2 0 obj Sometimes ending a lawsuit, whatever way it ends, win or lose, relieves tension and pain, doesnt it? So why do we continue to take physician depositions as if we are still in the stone age? Are there other conditions (other than the one you diagnosed) that may cause John Joness symptoms? 1:53 Practice Tip: Ten Things to Cover in Every Deposition B. Privileges in hospitals in the area? 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. )f^_,FNfP\!vL*\UIQ@ /p0933L\>cK;S$ W=T3-uDA8$[S'Gb/@b)_ePdH) wF~0K^zE/=2Z\ M(%Lb&X&g+|yY\3+$_ >Km-F?P(S2::EGG(ax@hF( 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]. 3 0 obj Both sides now approach the corporate deposition with a newfound appreciation of what is at stakeand the best attorneys plan accordingly. 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. Rule 32 of the Federal Rules of Civil Procedure governs the use of a deposition at trial. 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? Even without expert testimony, the plaintiff's case should be made with the defendant's deposition. 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? DIRECT - TREATING DOCTOR A. b. Your job as his doctor, was to try and make him feel better? Conclusions reached: x rays, medical illustrations etc, 1. Rule 32 (a) (1) states: 2. And how many of these procedures have you done in your career to help your patients? 0000008212 00000 n As a treating physician. Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. How many students were there in your first-year medical class? Good afternoon, Dr. Doe. 0000036741 00000 n 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. 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. 166 31 As a physician, there are three common reasons why you will be compelled to testify and your deposition will be taken, each of which presents its own problems and pitfalls. 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. This analysis can be seen in most soft tissue cases. Is deposing a plaintiffs treating physicians worth it for the defense attorney? 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. After all, innovation in your questioning could very well be the sine qua non of your success. For physicians, depositions are stressful and unnatural experiences. Deposing these well known, flagged, treaters would simply increase litigation costs and not accomplish anything for defense counsel. Lab work or other tests that were done and what were the results. (1) nature/expense reasonable probability4. Unlike the company records, you have an educated background as to the medical records and documents for [plaintiff]? 10 0 obj This needs to be done before the defense deposition. s>}l&>`6$.-v!n&UP H,i4+sEX.oy`9E>@c ye!b`@$` /? 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? Would your opinion change if you knew that ___________? Make an outline or a list of each and every test and what it is for. Have you referred to any articles or texts in reviewing this case or in preparing your opinions or to testify in this case? Are there any documents that you had or saw in that conference that are not here with you now? When the plaintiffs lawyer showed you those documents: They did not invite any of the authors of the documents to attend? Do you agree it is important when you look at a document to put it into context? This field is for validation purposes and should be left unchanged. See Appendix C. How the questions are phrased, in what order the questions are given, and what topics are covered is going to vary for each case. Before entering this phase of oral discovery, the defense attorney will have all of the records for the treaters. It is important it is to create medical records which are truthful, isnt it? [The defendants lawyer will obtain and have court mark it as an Exhibit. 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 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. (4,ro; 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. 52-148d. Build a Morning News Brief: Easy, No Clutter, Free! Testified in any deposition or at trial before? 5. First, it shows that the documents were shown in a vacuum, without regard to context or content. Finally, the rules of evidence allow people with specialized knowledge to testify as experts in fields normally beyond the average juror's experience. Sec. Was anyone representing [product or client] present? Hospital privileges ever denied? Ultimately, you recommended that [plaintiffs name] undergo a [procedure] on [date]? What did you each say about these documents? 17 0 obj These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. That is what the trial is for. 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)? b. Depositions of key witnesses; c. Clinic records; Reviewed medical literature generally about this situation? 0000007401 00000 n What to ask in the treating doctors deposition. 0000009006 00000 n 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 It is a proceeding where a lawyer representing a party to a lawsuit asks questions to or interviews a witness under oath, but out of court. 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. No. Ever been charged with crime other than driving violations? Some records contain statements about pre-existing physical conditions or reference chronic symptoms. \a:b%?#>h'o=*s+a0xdhu9CFEXMtgoQ+,qkH +Ps3)Pc Your email address will not be published. Free Consultation (800) 553-8082 Miller & Zois helps injured victims and their families in personal injury, medical malpractice and wrongful death cases. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 19 0 R/Group<>/Tabs/S/StructParents 1>> Fittipaldi USA, Inc. v. Castroneves, 905 So. !`.Yh Video-recording the deposition and using it in trial. 3410 Far West Blvd., Ste 235 . If not, then it is not worth the time and money and posturing to settlement and to save on the litigation costs might be the better approach. What did suit involve? [7] I want to ask you about some defense opinions in this case, OK? A. a. You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney Without speaking to the treating physicians, the life care planner may lack a full understanding of the plaintiff's injuries and care needs. Permanent injury?2. endobj Check. 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.
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