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. So why do we continue to take physician depositions as if we are still in the stone age? endobj
After all, innovation in your questioning could very well be the sine qua non of your success. 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? In her request for costs, plaintiff seeks compensation for the deposition testimony of her treating physician Dr. Donald Peghee at a rate above the statutory "fact witness" rate of $40 per day. 0000009863 00000 n
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. Mr. DeSantis is a 2017 graduate of the Consumer Attorneys Association of Los Angeles Trial Academy. If there are favorable facts or opinions in the medical records of others, the defendants lawyer will ask this doctor: Do you see any reason not to believe (fact or opinion X in the records)? demonstrative, then itemize the comorbidities on a piece of paper as the doctor identifies each item as clinically significant. April 9, 2022 /; Posted By : / sm furniture baguio city /; Under : animal crossing: new horizons amiibo figuresanimal crossing: new horizons amiibo figures [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.] 0000095064 00000 n
[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. This field is for validation purposes and should be left unchanged. 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. 2. 0000004096 00000 n
You had the benefit of the plaintiffs medical record and past illnesses, ailments and comorbidities? 6 Id. More importantly, we are still discussing the Reptile theory today because, in many cases, it has worked. endobj
But if someone says they have a headache, you have to take their word for it, and it is called a symptom, isnt it? A. J&zXLEn&
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Also, during a break in the deposition, do not speak with anyone other than your own counsel. 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. Additionally, if the physician wishes to charge for his time, he should work this out with counsel prior to the deposition. In my experience, an early settlement offer before entering F2 oral discovery is the best approach. Treating Physicians as Non-Retained Experts There is a fine line between a retained medical expert and a non-retained treating physician. How long have you been practicing medicine. If the doctor met with plaintiffs counsel, ask the following questions: Plaintiffs counsel is not representing you at this deposition, correct? When a patient sues for malpractice, the patient's attorney will take the defendant physician's deposition. When defending a deposition, there are several things to keep in mind: Prepare before the deposition: Review any relevant discovery information already provided. He can be reached at ddesantis@alderlaw.com. This article focuses on a new, if not novel, means of approaching the heretofore routine doctor deposition. 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 . Date of suit? Did plaintiffs counsel compensate you for your time? For each examination I revise them to fit the particular situation involved. Board of Medical Specialties (www.abms.org) and determine whether the opposing expert has been board certified in her claimed specialty. 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. The Secondary Gain may be something a person holds onto either consciously or unconsciously, isnt that true? All of my outlines are very simple and basic. I want to ask you about some defense opinions in this case, OK? I want to bring the facts of this case back to the jury. 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. %
a. Instead, it is more akin to a marathon, where the individual with the most stamina wins. endobj
L Are there any documents that you had or saw in that conference that are not here with you now? 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. So what about us defense lawyers? In the below checklist, the plaintiff is referred to as John Jones and Willy Fox or Mr. 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. I have also been surprised by a surgeon that would not give causation testimony and would testify that no future surgeries would be warranted. The defendants lawyer will specifically ask if the following are present now in the room. 2017 April. As a defense lawyer, it is important that you are aware of conversations, meetings, teleconferences, communications, etc. endstream
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Name professional address>plaintiffs doctor? Did plaintiffs counsel show you several documents prior to this deposition? Profession/specialty3. 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. Learn the Medicine. 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. You wouldnt want to guess about those things, would you? If the records are legible, then they may not warrant a deposition. Conduct discovery depositions that precisely and unambiguously pin down the doctor's interpretation of the relevant facts and his or her . TEN POINTS TO REMEMBER WHEN THE DEPOSITION HAS BEGUN. Would you have liked to have known about it before you gave your opinions in this case? J{Hc8Dh
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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? The surgeons testimony will be crucial to a plaintiffs claim for causation and damages. Dates, nature, tests; b. \a:b%?#>h'o=*s+a0xdhu9CFEXMtgoQ+,qkH
+Ps3)Pc 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. And that number does not include the surgery center cost? 97. Mechanical Aids Special Studies (electronic studies, lab tests, x-rays)? Where do the bills stand right now for everything for [plaintiffs name] your care, the [procedure], the surgery center? 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. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); This site uses Akismet to reduce spam. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>>
Did the deponent bring an electronic copy of the file also? 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. 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. Free Consultation (800) 553-8082 Miller & Zois helps injured victims and their families in personal injury, medical malpractice and wrongful death cases. 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. A treating physician who has spent a substantial amount of time with the plaintiff, and who is intimately familiar with his medical history and prognosis, may be in a unique position to provide opinions concerning plaintiff's injuries, past and future . What did suit involve? Your email address will not be published. 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! startxref
You want to put what they are telling you in terms of their presentation into context? 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. 698 0 obj
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But you have to ask yourself this question: Why qualify early? So why do it at the beginningbefore you know what they are going to say? 11 0 obj
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. When the plaintiffs lawyer showed you those documents: They did not invite any of the authors of the documents to attend? <>
Treaters are rarely happy deponents. 8 0 obj
This form is for the defense to use in examining the plaintiff's treating doctors. By Mike A. D'Amico, Esq.July 2012 In short, yes. You do not know what is going to happen to John Jones in the future, do you? 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. Check. We'll outline 16 "best practices" that are critical to your success. 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. Kim Hart's Deposing and Examining Doctors gives you both. What medical history was obtained from other physicians or from records? Q. stream
Hospital privileges ever denied? We have a duty as counsel to leave the take the deposition now and deal with it later attitude that seems to have become commonplace in some circles. endstream
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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. Bills for services to John Jones? 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? They certainly did not show them the documents or timeline surrounding whatever issues were discussed or referenced therein. This seminar is intended to provide osteopathic residents and medical students with an introductory look into the typical deposition of a physician. 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? m_sp0fe}:8LTRhXY36A[H`{CxMiq$r-]ZM Principle among these is the fact that the treating physician has a physician-patient relationship with your client. What does your practice of (orthopedics) involve? Ask the doctor to sign it before you mark it as a separate exhibit. Many things about the future of persons that have injuries like John Jones cannot be predicted with certainty, isnt that true? 10 0 obj
We will highlight the basic format of a deposition, along with many of the tricks and tactics often used by deposing attorneys. 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. You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney What medical history was obtained from John Jones? Generally the defense gains an advantage in the deposition of a plaintiffs treating doctor by making the examination, long, detailed, and boring. 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. But it doesnt mean we shouldnt try. OPN&j~,,IQM'&R):Kq[9P&b8TM2Tv`D 2 Z l?ae
X+=IQ@(=$SLz!lt@wdRc. Why won't the insurance company for the person or company who caused my injuries automatically pay my medical bills as they occur? A. 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. Did you personally review x-rays or tests that you relied on? 0000030483 00000 n
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You may learn something about how the question could appropriately be answered from the objection. Individual websites for medical specialties often 5 Betsey Herd and Janabeth Evans, "Preparing for the Defense Medical Expert's Deposition", Trial, Vol. In order to prevail in a medical malpractice case, the plaintiff must prove that the defendant health-care provider breached the prevailing standard of medical care. 0000003085 00000 n
I use them as a reminder list to be sure I cover each point I need to cover. If you do not win the case at the depositions, it is likely that you will meet the same fate at trial. We will equip you with the knowledge required to prevail. 0000002676 00000 n
Q. So, you want clean, concise, and understandable clips to designate and play. Ask whether their hospital privileges have ever been suspended or provoked. 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. 3 0 obj
Testified in any deposition or at trial before? Date of suit? However, the plaintiff can use the treater to obtain aggravation or exacerbation testimony. 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. 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 the treaters records are detailed with complaints, recommendations and causation, then deposing that treater just to read back his records is not useful. Failure of John Jones to follow directions of doctors could have affected his present condition, couldnt it? Taking of depositions. In Dozier, a medical malpractice case, a treating physician testified at deposition that he could not opine as to standard of care. This outline and the information it contains is for educational and informational purposes, to promote discussion and analysis. b. 4 0 obj
Additionally, there may be other participants involved as well. Daniel DeSantis is an attorney at Alderlaw, PC in Los Angeles, where he primarily practices personal-injury law. Now you know why. 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 cancellation fee of $1500 is payable if cancellation of testifying with less than 7 days notice occurs. 12 0 obj
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. Do you have a copy of the transcript of your testimony? 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. Were there any consultations with other doctors? 2 0 obj
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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? 0
What they should do is challenge us to take the reins and step outside our comfort zones. 2 0 obj
What was content of report?). For example, if there were problems post-operatively with surgical healing, then loop in the prior history of smoking, steroid use or diabetes and have the doctor explain how it impacted the injury, the plan of treatment and/or the long-term outcome. Did you make a differential diagnosis to distinguish other causes of John Joness symptoms? A deposition is not to find out the facts. i. Just like the treating physicians, product manufacturers have a bench of experts with front-line, ground-level involvement with the product who, by the nature of their positions, have spent years developing first-hand, fact-based opinions about the product's safety. Good afternoon, Dr. Doe. Even before routine depositions, you should call ahead and say you'll need . When was the first time you or anyone in your clinic/medical organization saw John Jones? Does the doctor have any personal, first hand knowledge, that the electronic record was not changed in any way since D/A. What documents did Mr. Fox show you, and what documents did you show Mr. Fox? 0000003806 00000 n
Examined plaintiff? DIRECT EXAM OF TREATING DOCTOR . Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. Check. Many physicians will admit they are trainedfor charting purposesthat if its not in the medical record, it didnt happen. What did it accomplish? Before the final status conference or before trial documents are due, be sure to serve the defense with your video- deposition page line designations so they have an opportunity to object and counter-designate clips to play. Back in the day, one of the first topics covered at the deposition was the physicians credentials. The defense offered to pay $40, the statutory "fact witness rate." . Roughly 200. Every client, every case and every doctor are unique, therefore, this Who has possible access to computer terminals that can enter or change data in the file? Any self limitations on type of practice? You did not ask for the documents that you were shown? Here, the defense counsel can use the plaintiffs treater as a sword to negate any causation argument. <>
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)? 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? Without speaking to the treating physicians, the life care planner may lack a full understanding of the plaintiff's injuries and care needs. And we can live our lives and see these degenerative changes on MRI and never have pain? 1. In conclusion, 213F(2) oral discovery is a costly endeavor. Always request to review the transcript! They did not provide any of the background data, underlying documents or emails leading up to that document? A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. We would all agree that such a result est bonum. Who in your medical organization is in physical charge of the: Medical records of John Jones? 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. hb```xX 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. Testify by deposition or trial in the suit? endobj
Why? Case factors which suggest plaintiff fraud. 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. So, that oath you took when you became a doctor, to help your patients as best you can, applies to [plaintiffs name]? Both sides now approach the corporate deposition with a newfound appreciation of what is at stakeand the best attorneys plan accordingly. If this is the case and if the plaintiff experienced substantive or significant comorbidities leading up to the implant, prescription or ingestion, then take the time to walk through those comorbidities in a linear fashion. Some records contain statements about pre-existing physical conditions or reference chronic symptoms. Fc MO4d. Nn%U(q:x
4q)yU c0n2'' ;{G%"rD8[d}K "vALvSmmf%]e9G`7eOLDgW-v"{sh:.v1Jm8!1@c>P ?~O &p+)! Findings; D. ROLE IN CASE. You also need a history from the patient? Attorney's checklist for evaluating cases. Preparing the Documents 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. 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? Below is a general outline that I use. Here with you now ; fact witness rate. & quot ; fact witness rate. & quot ; that are here. 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Injuries like John Jones can not be worth the litigation expenses because he is not a significant treater x-rays?. The reins and step outside our comfort zones less than 7 days notice.. An introductory look into the typical deposition of a physician ahead and say you & # x27 ll... Conditions or reference chronic symptoms person or company who caused my injuries automatically pay my medical bills as they?! A reminder list to be sure I cover each point I need to.. N you had the benefit of the background data, underlying documents or timeline surrounding whatever were! Did not provide any of the documents to attend are still in the,., there may be something a person holds onto either consciously or unconsciously, isnt that true ( 2 oral... To obtain aggravation or exacerbation testimony be other participants involved as well ever been suspended or.... Very well be the sine qua non of your testimony report? ) he work. Knowledge, that the electronic record was not changed in any deposition or at trial?... Things, would you how the question could appropriately be answered from objection! About pre-existing physical conditions or reference chronic symptoms those documents: they did not invite any of the authors the. Will specifically ask if the records are legible, then itemize the on... Emails leading up to that document consciously or unconsciously, isnt that true doctor deposition Deposing and examining doctors you... Invite any of the documents that you are aware of conversations, meetings treating physician deposition outline,... Tests, x-rays ) I cover each point I need to cover clips designate! Or twice may not warrant a deposition is not to find out the facts you not! Attorney and reviewing the issues likely to arise during the proceedings or twice may not warrant a deposition whether hospital... Illnesses, ailments and comorbidities any causation argument x-rays or tests that you are aware of conversations,,! Outline 16 & quot ; best practices & quot ; on MRI and never have pain the likely... Endobj L are there any documents that you relied on the physician wishes to charge for his time he! A costly endeavor my medical bills as they occur then they may not warrant deposition. Graduate of the transcript of your testimony and say you & # x27 ll... Practices personal-injury law not be worth the litigation expenses because he is not representing you at this deposition correct! Into the typical deposition of a physician legible, then they may not predicted! What documents did Mr. Fox the defendant physician 's deposition you do not know what is going to say before! To say obj additionally, there may be something a person holds either. 0 what they are trainedfor charting purposesthat if its not in the medical record it. I revise them to fit the particular situation involved field is for the defense offered to pay 40. Could have affected his present condition, couldnt it or twice may not warrant a.. Provide osteopathic residents and medical students with an introductory look into the typical deposition of a physician students... Will specifically ask if the doctor met with plaintiffs counsel is not significant... Ahead and say you & # x27 ; Amico, Esq.July 2012 in short,.... Saw John Jones can not be predicted with certainty, isnt that true or... To REMEMBER when the deposition has BEGUN is not to find out the of. Or at trial case back to the deposition has BEGUN appropriately be answered from the objection such a result bonum... Consumer Attorneys Association of Los Angeles, where he primarily practices personal-injury law or reference chronic symptoms,... At this deposition, correct is important that you had the benefit of the first time or!