Keeping track of special damages and expenses. 0000064012 00000 n You also need a history from the patient? Is deposing a plaintiffs treating physicians worth it for the defense attorney? Average plaintiff's counsel leave the doctor's direct testimony, in its most powerful form, unknown to the defense insurer. Lab work or other tests that were done and what were the results. Would you have liked to have known about it before you gave your opinions in this case? If you appear sure of yourself in the deposition, the attorney will conclude that you will appear that way to a jury as well. 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. Surgeons are expensive to depose, but they are probably the star causation witness for a plaintiff. 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. Use the few hours you have to educate the doctor and the jury in a manner that allows you to frame client-friendly lines of questions. Leave with a better understanding of the overall deposition process. 1:53 Practice Tip: Ten Things to Cover in Every Deposition B. 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? Through training, targeted witness preparation, issue-focused redirect examinations and effective motion practice, we have worked to neutralize and eliminate those jury-friendly sound bites. On both of those cases, I have already deposed and videorecorded the treating surgeons. 0000030483 00000 n 8 Id. What else did you review in preparation for this deposition? [The defendants lawyer will obtain and have court mark it as an Exhibit. The tired practice of following an outline loosely based on Introduction, Credentials, Records Review, Opinion and Thank You for Your Time, Doctor is over. But the treater actually treated. 2 0 obj The primary treating physician is the physician selected by the employer, the employee pursuant to Article 2 (commencing with section 4600) of Chapter 2 of Part 2 of Division 4 of the Labor Code, or under the contract or procedures applicable to a Health Care Organization certified under section 4600.5 of the Labor Code, or in accordance with . Rule 32 (a) (1) states: What are they? L (1) nature/expense reasonable probability4. 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. Before whom depositions may be taken. Who in your medical organization is in physical charge of the: Medical records of John Jones? A treater, like a retained expert, is compensated to attend deposition and trial, true. They know what future treatment they recommend and why. It means first, do no harm and is the ethical guiding principle in the medical profession. Here is a most basic direct examination outline for a treating doctor.DIRECT TREATING DOCTOR. As a result, the treater is duty bound by the standard of care to exercise sound medical judgment in the diagnosis and treatment of the plaintiff. Date of suit? Doctor, your treatment for [plaintiffs name] is on what we call a lien basis? Here are some common tactics used by plaintiff attorneys deposing EPs: Plaintiff attorneys will try to get the EP to blame another . 1. 0 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. %PDF-1.4 % The deposition is taken down by a court reporter and a typed transcript is produced for later use by the attorneys and the court. The short answer to this question is "yes.". They did not provide any of the background data, underlying documents or emails leading up to that document? endstream endobj startxref x\on?},\shzmQ-D}gf$ Xfo7|ysvw"rqZrqG}{f6K.]%Y*9*Reer~\$-t]i~8?2/grE2ty%3r.BGa&y*I.>%o64$YN\LL~;\SZxcDy=:TRLe2e+AWyVb8 3*L3V3JcM_QCd` TNI:eZME*&5jipbXMI(=Y6{mO_uX-d5-dNZpilAmS&_?q k:V&]Gdc";{I-Y oMdf(N4$!/yk;'/]%r$zndicvMDJ0Ll,Xv)Tdag$z=}vZ|(vh[=9aD9;FT2)4TLex(:+P0h 6i4S{HTGtL(*+,yGPjr@[]c:hQEn6iZN>cz ?$AK 52-148e. Treating physicians are considered fact witnesses (as opposed to expert witnesses) because they are testifying to the facts and circumstances surrounding their own treatment of the plaintiff. If the facts warrant, you should use this moment to detail the plaintiffs relevant preexisting clinical conditionsand put them front and center before the jury and the doctor. Was John Jones referred to you by Mr. Fox [the attorney for the plaintiff]? 0000002676 00000 n between counsel for the plaintiff and the doctor before the first question is asked under oath. As noted above, these practice points may not be applicable for every case, in whole or in part, nor should they be interpreted as suggesting change for the sake of change. D/A refers to the actual date of the accident, e.g., January 12, 2010. What did you have to do in the . Examined plaintiff? 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)? [The defense lawyer will obtain and mark as Exhibit. hb```@2Abl,'p-. 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. The defendants lawyer will check to be sure that the doctor brought. 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? Effect in future(1) earning ability(2) activity: walking, climbing, kneeling etc(3) family life/activities(4) loss of enjoyment of life: pain/discomfort3. cross examination of treating physician. Provides you with a time-tested order of questions for best results in most depositions. 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. But before I do, just so there is no confusion: Before your deposition in this case, you never even saw any of those documents? The plaintiffs lawyer did not provide you with a proper and thorough history of any of the documents they showed you, did they? 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. In the context of the practice of medicine, we are all very familiar with the Latin phrase primum est non nocere. 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. 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. Dan Christensen . 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. Always ask whether the doctor has given testimony before. The remaining eleven represent deeper dives. 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. Offering such an opinion will leave you open to impeachment at trial. If someone has a broken bone, you can see that on an x-ray and it is called an finding, isnt it? Were they lawyers retained by the plaintiff in this litigation? Note: Here the defense counsel can cause the doctor to become uncertain or more conservative in his or her testimony by informing him/her of pertinent aspects of the plaintiffs prior injuries or history that this doctor did not mention as part of the history considered or known about. Here, the defense counsel can use the plaintiffs treater as a sword to negate any causation argument. The treating physicians know why they are using certain treatments and drugs and not others. 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. Invariably, the defense examiner will note a full range of motion, full measurements of strength, equal bilateral strength in all extremities, and negative test results in order to justify an opinion of no permanent injury or to otherwise minimize the Plaintiff's injuries. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Doctor, what is that opinion? In my experience, an early settlement offer before entering F2 oral discovery is the best approach. One treater that is normally deposed is the surgeon. 0000001716 00000 n On a record of the patients visit, who has possible access to a computer terminal that can add an additional remark about the examination and what it disclosed? 691 0 obj <> endobj What medical history was obtained from John Jones? Is degeneration the normal aging process in the spine that we all go through? endobj The first time you saw the documents were before today where you are being recorded and have been sworn in under oath? endobj 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. Sec. Id like to stipulate to the admission of the surgical report for all purposes including trial? 0000001672 00000 n What is your understanding of why the attorney contacted you? Ever been charged with crime other than driving violations? All of the other students in the first-year medical class. What conclusions, opinions did you reach and what do you intend to testify to at trial? Many things about the future of persons that have injuries like John Jones cannot be predicted with certainty, isnt that true? Taking of depositions. 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 . And in that situation, the pain generator is the incident and not the degeneration? How long engaged in practice? You have seen and reviewed many medical bills in your field of medicine for treating patients and conducting [subject procedure]? Do the tables come outfitted with ashtrays for our smokes and carafes of stale water with cloudy ice cubes? <> Names of attorneys? Ever limited in scope? The court reporter's role is to administer an oath or affirmation and then transcribe verbatim every comment made in the room during the deposition. 13 tips to help you understand insurers with different settlement approaches. At the end of the first examination, did you make a diagnosis? 0000006588 00000 n 0000007401 00000 n Did plaintiffs counsel compensate you for your time? document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); This site uses Akismet to reduce spam. Why do they cause those same symptoms? 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. Are you a social friend or business friend of Mr. Fox? 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. In coordination with the initial diagnosis, were there consultations with other doctors? As a treating physician. Was anyone representing [product or client] present? (Who? Did plaintiffs counsel show you several documents prior to this deposition? Many physicians have had the unfortunate experience of giving a deposition. Medical malpractice depositions are unique, unlike other personal injury matters, in that "opinion questions" are permitted,. It is certainly not possible with every doctor, as some may have developed steadfast views against our product before we even serve the Notice. direct examination of treating physician. Please tell us what physical examination was made on this first visit, and what it disclosed? 166 0 obj <> endobj Your attorney may object simply for the record and then tell you to go ahead and answer the question; or he may object and instruct you not to answer. Did you meet with any lawyers prior to the deposition? For reprint permission, contact the publisher: www.plaintiffmagazine.com, California Jury VerdictsVerdict searchReport your recent verdict, Copyright2023 by Neubauer & Associates, Inc., All Rights Reserved. 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. Take breaks when you need them or if your attorney suggests it. I want to ask you about some defense opinions in this case, OK? endobj When defending a deposition, there are several things to keep in mind: Prepare before the deposition: Review any relevant discovery information already provided. endstream endobj 695 0 obj <>stream 12 0 obj 0000009060 00000 n How long did you spend reviewing your own medical records in preparation for this deposition? Helps you think through and plan all the various aspects of your medical battleground, so you are sure to hit every important point. Maryland Personal Injury Lawyers. Future conditions or impairments. What they ask you to do? Law Firms: Be Strategic In Your COVID-19 Guidance [GUIDANCE] On COVID-19 and Business Continuity Plans. 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? Below is a general outline that I use. At the time of John Jones first visit with you, you did not record John Jones having __________, did you? If witness has not brought any item: <> b. Depositions of key witnesses; c. Clinic records; Reviewed medical literature generally about this situation? treating physician deposition california. 7 0 obj A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. 96. You did not ask for the documents that you were shown? <>/Metadata 528 0 R/ViewerPreferences 529 0 R>>
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