treating physician deposition outline

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. In the context of depositions, it refers to the practice of plaintiffs lawyers having ex parte meetings with doctors before the deposition to discuss the plaintiffs theories and to share cherry-picked, out-of-context corporate documents. 0000064012 00000 n Was John your patient or of your clinic/medical organization before D/A? Hq'&F&'  Here is a most basic direct examination outline for a treating doctor.DIRECT TREATING DOCTOR. The treating physicians know why they are using certain treatments and drugs and not others. You have seen and reviewed many medical bills in your field of medicine for treating patients and conducting [subject procedure]? HT]o[7}.-RlkC:ncg;\!uxDg'PJAbt&&$/OJBNZ%z6HrTtV>/j~b3Cq h?nFzgbSD7}ekJ[31-c. Who do you compete against for this award? 166 0 obj <> endobj Privileges in hospitals in the area? (4,ro; Cross-Examining Doctors: A Practical Guide, Second Edition explains step-by-step how to: Investigate the case thoroughly and promptly. 13 0 obj 2017 April. We would all agree that such a result est bonum. i. endobj You may learn something about how the question could appropriately be answered from the objection. 3t@,PT.T++U;8"hPK~cTC4. If yours is a case where the healthcare providers did not cite or blame your product on the outcome, then establish the absence of any causal link between the product and the outcome. 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. 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. A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. Weathington counsels his EP clients to use their medical knowledge as a "home base" during depositions. Check. 96. Know the doctor's file / report better than opposing counsel Do Internet research to understand the medical issues Know the law - "medically distinguishable" Call the doctor ahead of time if possible Show up in advance of deposition to discuss testimony Don't be afraid to cancel a deposition . Deposing these well known, flagged, treaters would simply increase litigation costs and not accomplish anything for defense counsel. And in that situation, the pain generator is the incident and not the degeneration? As an expert witness. Offering such an opinion will leave you open to impeachment at trial. CPLR: DEPOSITIONS The 9 most common personal injury case weaknesses. 0000030483 00000 n These objections typically go to the form or relevancy of a question, or the question may involve some sort of privileged communication. When you are done, have the doctor clearly confirm what the list represents. ~Z#'tqkCIj.Qft&QR 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? 40, No. 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? Date of suit? Over time, however, we have adapted. See 28 U.S.C . 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. Every deposition has an errata sheet, on which you can correct any errors to your testimony. 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. 0000001672 00000 n Ever limited in scope? Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. In other words, a good deposition sets up the trial. Check. This seminar is intended to provide osteopathic residents and medical students with an introductory look into the typical deposition of a physician. (t You were served with a subpoena asking you to bring a number of items to this deposition, werent you? What is the basis of that opinion? <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> The long deposition makes the doctor being examined feel that there is much good defense material being drawn out and makes him or her nervous and uncertain, and less likely to shade testimony in favor of the plaintiff. It is important to review these documents for the following two purposes: Whether the plaintiff's doctor had a complete medical brief Sometimes ending a lawsuit, whatever way it ends, win or lose, relieves tension and pain, doesnt it? 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. Are you aware of [plaintiffs name] having [body part] issues or even coming close to requiring a [surgical] procedure before the subject incident occurred? b. Depositions of key witnesses; c. Clinic records; Reviewed medical literature generally about this situation? Pre-payment is required for all services. Keeping track of special damages and expenses. So in basic terms, a finding is something the doctor can see for himself, and a symptom is something the doctor is told exists? QUALIFICATIONS 1. Rule 32 of the Federal Rules of Civil Procedure governs the use of a deposition at trial. Testify by deposition or trial in the suit? hb```@2Abl,'p-. Did they discuss with you any studies that have been conducted on [product]? 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. 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. 0000005060 00000 n 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. But if someone says they have a headache, you have to take their word for it, and it is called a symptom, isnt it? 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. 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. treating physician deposition fee schedule. Did they ask you to appear at a future trial of this case? This point has significance for the diagnosis or treatment of John Jones, doesnt it? What did suit involve? [The defendants lawyer will obtain and have court mark it as an Exhibit. Virginias Data Privacy Law Just Went Into Effect What You Should Know. In the present study, an . Of course we should, and while we have willingly and eagerly accepted the changes on the technology front, we have been less than zealous when it comes to adoptingor even consideringdifferent litigation practices and techniques. 7 0 obj Any self limitations on type of practice? 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. But what you do have here is your history in the care and treatment of the plaintiff, correct? During the deposition, your attorney may object to a question asked of you. << /Length 3 0 R If you do not win the case at the depositions, it is likely that you will meet the same fate at trial. 52-148d. If you appear sure of yourself in the deposition, the attorney will conclude that you will appear that way to a jury as well. The settlement style of large and conservative insurers. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case. 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 Dr. _____, where is your practice located. Check. 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. In a personal injury case one of the most important witnesses is the treating doctor. More importantly, we are still discussing the Reptile theory today because, in many cases, it has worked. Why do they cause those same symptoms? Now, is [procedure] something that patients get right away or is it a last resort when someone is in pain? A deposition is the questioning of a witness under oath outside of a courtroom. <> This proactive tactic leads to better settlements for the plaintiff. Maryland Personal Injury Lawyers. 1. For reprint permission, contact the publisher: www.plaintiffmagazine.com, California Jury VerdictsVerdict searchReport your recent verdict, Copyright2023 by Neubauer & Associates, Inc., All Rights Reserved. Professional experience 5. The treater is going to testify that the occurrence caused the injury, that there was no pre-existing injury and the injury is permanent. 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. Code of Civil Procedure section 2025.330, subdivision (c) states in part: The party noticing the deposition may also record the testimony by audio or video technology if the notice of deposition stated an intention also to record the testimony by either of those methods, or if all the parties agree that the testimony may also be recorded by either of those methods. In federal court proceedings, the deposition may be your only shot to obtain favorable testimony from the treating physician. 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. 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. 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 11 ways insurers stonewall personal injury claimants. Plaintiffs lawyers and seasoned doctors are expecting the same old, same old when it comes to questioning. endobj I have deposed various surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment. (Who? Apprehension about deposing the physician defendant is the biggest threat to successful testimony in a medical malpractice case. What did you have to do in the . What are they? Oral or written report? 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. The defense attorney will identify on the records all exhibits that doctor has brought. After all, innovation in your questioning could very well be the sine qua non of your success. So, at trial you get to (a) designate and play your treating physician conclusions (not opinions!) Did you disclose those to [plaintiffs name]? M2DH) ,B;02ZMz5)Ro" FTK 8TR-N>5jdHYLJ_#ioS~tofc:&Kltv74 Does Mr. Fox or his office refer patients to your office? Lets discuss why. How insurers view personal injury claims. endstream endobj 695 0 obj <>stream A valid, recent, signed consent to release information is required. Future conditions or impairments. We met for the first time today when I introduced myself to you in advance of this deposition, correct? For physicians, depositions are stressful and unnatural experiences. _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. Know what the doctor . And you also need to examine the patient to determine what continues to hurt them? (If the operative report is good for you, why not admit into evidence!). 9 0 obj And we can live our lives and see these degenerative changes on MRI and never have pain? 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 In coordination with the initial diagnosis, were there consultations with other doctors? The purpose of going through this exercise is twofold. 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? Notice of taking of deposition. 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! (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 . 0000000916 00000 n J&zXLEn& "( [2mf#'cwvm/*Uz/MealffAc,sX19 v @@;@R`q9 9b Nailing your deposition is tall order. Did you meet with any lawyers prior to the deposition? 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. Failure of John Jones to follow directions of doctors could have affected his present condition, couldnt it? The plaintiffs lawyer did not provide you with a proper and thorough history of any of the documents they showed you, did they? Other than having the doctor introduce themselves as a physician who participated in the care and treatment of the plaintiff, why would you go any deeper at the beginning of the deposition? As a defense lawyer, it is important that you are aware of conversations, meetings, teleconferences, communications, etc. These depositions focus on the substance of treatment, the patient's medical condition, and the patient's prognosis. Jurors often perceive the providers as neutral players in the game, unsullied by expert fees and untethered to long histories of associating with law firms or litigation. Because they have expert knowledge, experts are allowed to state opinions in their testimony, such as whether a physician's conduct complied with the applicable standards of care. And the contents in this report and truthful, accurate, and reliable? 7 Id. Court involved? Asked you to tell jury about him? <> Follow his instructions and do not be intimidated by the examining attorney. 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 166 31 0000003549 00000 n C. REFUSAL TO MEET 1. ,:o+Ll#esN` While a treating physician is not generally classified as an expert witness, it is not an absolute rule and he may be deemed an expert in certain circumstances. Medical personnel, working in medical intensive care units, are exposed to fatigue associated with alarms emitted by numerous medical devices used for diagnosing, treating, and monitoring patients. 0000010560 00000 n Since medical malpractice depositions are an essential part of discovery, your attendance is mandatory. [either a case brought by you, or a case involving other persons]. Finally, the rules of evidence allow people with specialized knowledge to testify as experts in fields normally beyond the average juror's experience. s>}l&>`6$.-v!n&UP H,i4+sEX.oy`9E>@c ye!b`@$` /? I want to ask you about some defense opinions in this case, OK? endobj The deposing attorney may invite assistants, including consulting physicians, nurses, or paralegals to help them in analyzing the testimony and framing questions. treating physician deposition california. What was the primary purpose of [plaintiffs name] seeing you? Saves you time in preparing your deposition outline. Depositions usually in the office of an attorney. 5. Challenging a Treating Medical Provider's Opinions Based on a False Factual Premise . 0000095064 00000 n HWmO8_G.S)n[PA@,=f} IpfyQ5:,=M'bt8XX.aUYeF$Y/GRlB4'iW mig[qWf8v#3"E(9r9TRSY)lkOT?I) KL]EYWCm]Mp]t2XmThAAU)rBr As good personal injury lawyers, we have all spent a great deal of time learning medicine, particularly the medicine involving orthopedic injuries. 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. 15 0 obj )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( Id like to stipulate to the admission of the surgical report for all purposes including trial? This analysis can be seen in most soft tissue cases. Was anyone representing [product or client] present? Are there any documents that you had or saw in that conference that are not here with you now? If the treaters records are detailed with complaints, recommendations and causation, then deposing that treater just to read back his records is not useful. Profession/specialty3. }oPqp[h|sI>T>Q~K)g.s5j|\fS6R}?QzFwPml_M0Sqf 0^)/^c {BB8&i1=fDY. 0000001573 00000 n Attorney's checklist for evaluating cases. This needs to be done before the defense deposition. Have you ever been contacted by an attorney who represents the plaintiff in [current] litigation? 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. Prepare the main treating doctor for a deposition, and promptly schedule and depose that treating doctor. Did plaintiffs counsel compensate you for your time? 691 0 obj <> endobj endstream Education(1) board certification/significance4. 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 As you understand it, those documents are corporate documents that the plaintiffs lawyer told you were from [company]? [ 11 0 R] To do no undue harm to your patients and help them the best you can? Medical Deposition Outline for Injury Case MEDICAL DEPOSITION **Put objections on tape Qualifications of doctor Name, profession and address License to practice in State? These treaters are the physicians who treated the plaintiff for his alleged injuries. What insurance adjusters look for in evaluating claims. Read his full bio here: Alexander Sweis Full Bio, defense attorney will have all of the records, settlement and to save on the litigation costs. 0000000016 00000 n Who asked you to this talk between yourself and Mr. Fox? D/A refers to the actual date of the accident, e.g., January 12, 2010. 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? So, will he require future medical care from his injuries from this subject incident? document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); This site uses Akismet to reduce spam. And you created these in the ordinary course and scope of your business?

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