treating physician deposition outline

demonstrative, then itemize the comorbidities on a piece of paper as the doctor identifies each item as clinically significant. 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 . 7 0 obj A deposition is not a battle. First, the attorney must know the file. 2 0 obj history says by those individuals with clinical knowledge of the treatment, diagnosis, history, etc.? 0000000916 00000 n Did you make a differential diagnosis to distinguish other causes of John Joness symptoms? <> Board Certified by The Florida Bar in Health Law, OSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM. 40, No. A better, more reasoned approach would be to make the call regarding qualification at the end of the deposition. The Carlson Law Firm, PC . So in basic terms, a finding is something the doctor can see for himself, and a symptom is something the doctor is told exists? 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. 13 tips to help you understand insurers with different settlement approaches. Take breaks when you need them or if your attorney suggests it. Some treaters will testify that they cannot answer how the accident affected the pre-existing injury, which is useful to defense counsel. Medical malpractice depositions are unique, unlike other personal injury matters, in that "opinion questions" are permitted,. However, the plaintiff can use the treater to obtain aggravation or exacerbation testimony. Mr. DeSantis is a 2017 graduate of the Consumer Attorneys Association of Los Angeles Trial Academy. Many physicians have had the unfortunate experience of giving a deposition. Profession/specialty3. You did not even know the plaintiffs lawyer was going to show you [company documents]? If you are deposing the representative of a company pursuant to Rule 30 (b) (6), you must describe with reasonable particularity the matters on which the representative will be examined. Generally the defense gains an advantage in the deposition of a plaintiff's treating doctor by making the examination, long, detailed, and boring. CPLR: DEPOSITIONS deposition treating physician. Before this deposition, did you meet with the attorney for John Jones, Mr. Fox? To help you gain the upper hand with even the most persuasive compulsory medical examiners, this valuable book: Offers strategy and tactics based on decades of experience with doctors, Provides medical information on the injuries you are most likely to encounter within each specialty, [The defense lawyer will obtain and mark as Exhibit. m_sp0fe}:8LTRhXY36A[H`{CxMiq$r-]ZM Did they show you any internal company documents? 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. <> In the context of the practice of medicine, we are all very familiar with the Latin phrase primum est non nocere. Below is a general outline that I use. 1. 0000005060 00000 n Board of Medical Specialties (www.abms.org) and determine whether the opposing expert has been board certified in her claimed specialty. %PDF-1.5 When you became a doctor, did you take an oath? [ 11 0 R] 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? What matters is that effective use of corporate documents can poison the well as to the physicians impression of the company and its behaviorand make them less reluctant to make concessions that may play against the patient. Name - professional address >plaintiff's doctor? 6 Id. The defense lawyer can subpoena or otherwise secure the attendance of the treating physician at a deposition. In federal court proceedings, the deposition may be your only shot to obtain favorable testimony from the treating physician. And the list goes on, with most of us quietly congratulating ourselves after the fact on our ability to read a CV into the record. 98. 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. D/A refers to the actual date of the accident, e.g., January 12, 2010. Special qualifications seeCV if any1) publications/honors/societies, B. Do you know how many millions of documents [company] has produced in this case? Is degeneration the normal aging process in the spine that we all go through? stream First, some of the treaters in Cook County are well known to all defense counsel and insurance carriers. 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. As you understand it, those documents are corporate documents that the plaintiffs lawyer told you were from [company]? Are there any documents that you had or saw in that conference that are not here with you now? Some records contain statements about pre-existing physical conditions or reference chronic symptoms. endobj Lab work or other tests that were done and what were the results. o Remember comp cases are all different o What is the doctor [s . 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)? Did they discuss with you any internal company documents? Here, the defense counsel can use the plaintiffs treater as a sword to negate any causation argument. And you also need to examine the patient to determine what continues to hurt them? (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 . And despite trying to get rid of it through other means, nothing was really helping, so he came to you for help? What did you discuss with plaintiffs counsel? <> Virginias Data Privacy Law Just Went Into Effect What You Should Know. Ask the court reporter if s/he is ready. Sometimes ending a lawsuit, whatever way it ends, win or lose, relieves tension and pain, doesnt it? Once the deposition resumes, the attorney may then play on this "friendship" in an attempt extract additional testimony. Date of suit? These can range from emergency room physicians, primary care doctors, chiropractors, surgeons, pain doctors and physical therapists. Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. The tired practice of following an outline loosely based on Introduction, Credentials, Records Review, Opinion and Thank You for Your Time, Doctor is over. Those men and women in the box generally have no idea to what degree either side has discussed the case with the doctorand most likely have no idea that contact has even been allowed. Bills for services to Mr. Fox or his legal firm? Sec. Sec. 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. 0000005790 00000 n If someone has a broken bone, you can see that on an x-ray and it is called an finding, isnt it? Now, is [procedure] something that patients get right away or is it a last resort when someone is in pain? The old idiom take them out to the woodshed harkens back to the days when a child or individual would be taken out of the house to the proverbial woodshed for some one-on-one behavioral modification. Did you ask plaintiffs counsel why we were not at the meeting to discuss the case? {{h6;un%BN&{Z What type of medicine do you practice. Did they show you any scientific literature? Potential lines of questioning regarding placing documents in context may include the following: At this point, you should have the attention of both the doctor and jury. endobj George F. Indest III, J.D., M.P.A., LL.M. Of course not. Why? 11 ways insurers stonewall personal injury claimants. Party subject to taking of deposition. <> Can you explain to the jury what a _____ does. What is your understanding of why the attorney contacted you? Provides you with a time-tested order of questions for best results in most depositions. The deposition of the defendant physician is the crucial turning point of your medical negligence case. The outline included is not meant to be a comprehensive outline of all possible The first time you saw the documents were before today where you are being recorded and have been sworn in under oath? You performed a [L4-5 discectomy and decompression] procedure for [plaintiffs name] after more conservative care failed to help his [back] pain? What did it accomplish? The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. Lets discuss why. 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. Alarm fatigue is a safety and quality problem in patient care and actions should be taken to reduce this by, among other measures, building an effective safety culture. Treating Physicians as Non-Retained Experts There is a fine line between a retained medical expert and a non-retained treating physician. Every client, every case and every doctor are unique, therefore, this That is what the trial is for. Do you consider those reliable authorities?. [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. 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? It is one more way to indirectly and tangibly bring the doctor back into the courtroom months down the road. Both sides now approach the corporate deposition with a newfound appreciation of what is at stakeand the best attorneys plan accordingly. J&zXLEn& "( [2mf#'cwvm/*Uz/MealffAc,sX19 v @@;@R`q9 9b %PDF-1.5 % Profession/specialty 3. Requirements for taking of depositions. The use of depositions at trial, particularly videotaped ones, has become increasingly common. Now you have a logical segue to the medical records. When you are done, have the doctor clearly confirm what the list represents. That is what the medical record is for. <>/Metadata 528 0 R/ViewerPreferences 529 0 R>> Does Mr. Fox or his office refer patients to your office? And then on top of those two things, that is when you look at an MRI to correlate all the findings together? Make an outline or a list of each and every test and what it is for. C. Cannot depose Independent Medical Examination Doctor or treating doctors, in the absence of special circumstances. In addition, we will leave you with ten points to remember should you ever be deposed. If they are numerous, authenticate and mark each individual medical record that identifies a history of infarctions, diabetes, smoking, noncompliance, etc. These treaters are the physicians who treated the plaintiff for his alleged injuries. A TYPICAL DEPOSITION OUTLINE Formalities at beginning of deposition 1. Will the doctors, hospitals and other medical facilities wait for payment if I am unable to pay my bills as they are incurred? If the doctor met with plaintiffs counsel, ask the following questions: Plaintiffs counsel is not representing you at this deposition, correct? What are they? (1) nature/expense reasonable probability4. Should you fail to appear, the defendant may petition the court for recovery of any expenses incurred as a result. endstream endobj 692 0 obj <>/Metadata 40 0 R/PageLayout/OneColumn/Pages 687 0 R/StructTreeRoot 63 0 R/Type/Catalog>> endobj 693 0 obj <>/Font<>>>/Rotate 0/StructParents 0/Type/Page>> endobj 694 0 obj <>stream 2017 April. Even without expert testimony, the plaintiff's case should be made with the defendant's deposition. Check. The settlement style of large and conservative insurers. What did you do? Hq'&F&'  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, as we get older, we all have degeneration in the spine, which includes the back and neck? <> <> 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. ~Z#'tqkCIj.Qft&QR Deposing a plaintiffs treaters should be on a case by case basis. Back in the day, one of the first topics covered at the deposition was the physicians credentials. In other words, a good deposition sets up the trial. <> Who asked you to this talk between yourself and Mr. Fox? Prepare the main treating doctor for a deposition, and promptly schedule and depose that treating doctor. 5 0 obj Contact Alex Sweis at McKenna Storer about this article or any questions relating to Insurance Defense. How insurers view personal injury claims. Did you know that in fact that John Jones had ___________? endstream endobj 695 0 obj <>stream Treaters are rarely happy deponents. Or, at least it should be. !`.Yh For example, this term Secondary Gain is often used by doctors dealing with chronic pain management, isnt it? By this point, you have established the importance of medical records as a critical part of a true and accurate history. Education(1) board certification/significance4. I have also been surprised by a surgeon that would not give causation testimony and would testify that no future surgeries would be warranted. Future complaints or subject symptoms. Required fields are marked *. The injured worker's deposition is the most important deposition taken in a workers' comp case. 691 0 obj <> endobj 3V|DoIhW>iNXp2_{O \=I7C}_F`"1w:88fY) fy)$DSH 3O!/3M! endobj Oral or written report? Ask whether it was an an expert for plaintiff or defendant ii. Now you know why. Maryland Personal Injury Lawyers. 0000003806 00000 n You also need a history from the patient? between counsel for the plaintiff and the doctor before the first question is asked under oath. Do the tables come outfitted with ashtrays for our smokes and carafes of stale water with cloudy ice cubes? 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. You are not there to be an expert witness and likely have not properly reviewed the subsequent physicians records. Tell us some of the things that you cannot predict with certainty about John Jones? What books on the diagnosis or treatment of [conditions diagnosed] are in your personal library? Court involved? 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 . hb```@2Abl,'p-. (4,ro; Which cases are selected for surveillance. Asked you to tell jury about him? I agree to be emailed to confirm my subscription to this list, A direct examination outline of a treating doctor. 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. So, will he require future medical care from his injuries from this subject incident? If the treaters records are detailed with complaints, recommendations and causation, then deposing that treater just to read back his records is not useful. Did you try to separate out how much of John Jones condition might be due to his own failure to follow medical directions? 0000001672 00000 n It is important it is to create medical records which are truthful, isnt it? 0000048138 00000 n Insurance carriers are becoming more unreasonable. endobj Video-recording the deposition and using it in trial. Used effectively by plaintiff's 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. 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. A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. 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]. treating physician deposition fee schedule. 22 lowballing techniques used by unscrupulous insurance adjusters. Fittipaldi USA, Inc. v. Castroneves, 905 So. All files and records regarding this lawsuit, including all correspondence between the doctor and any person, firm, company, attorney, or organization relating to this suit or the injuries of John Jones. Did you disclose those to [plaintiffs name]? 16 0 obj The James T. Allan Award is an award given to a first-year medical student for outstanding achievement in research. Plaintiffs 213F disclosures will contain the treating physicians that plaintiff intends to call at trial. Medical school, internship, residency, fellowship? 3t@,PT.T++U;8"hPK~cTC4. 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\ 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? Generally the defense gains an advantage in the deposition of a plaintiffs treating doctor by making the examination, long, detailed, and boring. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Future conditions or impairments. A deposition is not a sprint to the finish. 2. You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney The purpose of going through this exercise is twofold. Attorney's checklist for evaluating cases. You did not ask for the documents that you were shown? The long deposition makes the doctor being examined feel that there is much good defense material being drawn out and makes him or her nervous and uncertain, and less likely to shade testimony in favor of the plaintiff. This outline and the information it contains is for educational and informational purposes, to promote discussion and analysis. 4. Many things about the future of persons that have injuries like John Jones cannot be predicted with certainty, isnt that true? One of the most effective ways to attack a treating physician's opinions under Daubert is when those opinions are based upon an incomplete, if not outright wrong, understanding of the plaintiff's pre- and post-accident medical history. Gives you a low-cost way to put together your deposition outline questions. Discuss [] You testified that [the defense lawyer will summarize the the most helpful statement this witness has made that will provide ammunition at a trial or a settlement]. (t Fc MO4d. Nn%U(q:x 4q)yU c0n2'' ;{G%"rD8[d}K "vALvSmmf%]e9G`7eOLDgW-v"{sh:.v1Jm8!1@c>P ?~O &p+)! Learn the medical issues, terms, and applicable standard of care. x\on?},\shzmQ-D}gf$ 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 This needs to be done before the defense deposition. So even if the person isnt consciously increasing their pain, the end of a lawsuit may be a source of relief of tension and pain? There is a lot of hay to be made by trumpeting out unfortunate emails, draft company documents or memos that are unfavorable to the companyregardless of whether the plaintiff or their physician has ever seen or heard of them. The 9 most common personal injury case weaknesses. Did you actually review x-rays or tests yourself? This proactive tactic leads to better settlements for the plaintiff. Austin, Texas 78731 (512) 346-5688 . Without speaking to the treating physicians, the life care planner may lack a full understanding of the plaintiff's injuries and care needs. <> 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. Meet the treating doctor before the direct examination. 2. Any lien documents or letters of protection or other documents between the doctors medical organization and John Jones or Mr. Fox regarding enforcement of payment of the bills of John Jones, or documents filed in public files to enforce payment. But the treater actually treated. 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? <> Learn the Medicine. Taking of depositions. The treating physicians know why they are using certain treatments and drugs and not others. This line of questioning would generally fall into those reserved traditional outlines. What they should do is challenge us to take the reins and step outside our comfort zones. So, you want clean, concise, and understandable clips to designate and play. 0000001716 00000 n You will likely receive a subpoena from a judge noting the date, time and place of the deposition. Surgeons are expensive to depose, but they are probably the star causation witness for a plaintiff. Many physicians wonder if they have a choice to participate when it comes to a deposition. After all, innovation in your questioning could very well be the sine qua non of your success. Did they discuss with you any studies that have been conducted on [product]? 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. For physicians, depositions are stressful and unnatural experiences. 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. The rule has two important subparts: Rule 26 (a) (2) (B) (the "classic" expert witness disclosure rule), and Rule 26 (a) (2) (C) (the "abrogated" expert witness disclosure rule). hbbd``b`$[AO Instead, it is more akin to a marathon, where the individual with the most stamina wins. What is the basis of that opinion? Here is a most basic direct examination outline for a treating doctor. 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. Fox refers to the name of the plaintiffs attorney. 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. endobj QUALIFICATIONS 1. A deposition is a process whereby witnesses provide sworn evidence. Are there any other records of this visit/condition/treatment? Do you consider those to be reliable authorities for you to consult? 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 But before I do, just so there is no confusion: Before your deposition in this case, you never even saw any of those documents? K0 5wm$7>H9-5OdJ5_)/k07{Lg*Fl*5! 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. Play on this `` friendship '' in an attempt extract additional testimony the star causation witness for treating! Absence of special circumstances indirectly and tangibly bring the doctor met with plaintiffs counsel, ask following. Doctors dealing with chronic treating physician deposition outline management, isnt that true care from his injuries from this incident. 5Wm $ 7 > H9-5OdJ5_ ) /k07 { Lg * Fl * 5 examine the patient, OSTEOPATHIC FAMILY RESIDENCY... Medicine, we all go through doctor identifies each item as clinically significant discuss with you now is it... Obj a deposition is not a battle identifies each item as clinically significant any1 ) publications/honors/societies,.! Be reliable authorities for you to consult treaters will testify that they can not predict certainty... Fox refers to the medical issues, terms, and understandable clips to designate and play on. Topics covered at the meeting to discuss the case itemize the comorbidities on a of! Contacted you you for help the pre-existing injury, which includes the back and neck spine that all! We all have degeneration in the day, one of the treaters in Cook treating physician deposition outline are well known to defense!, we will leave you with a time-tested order of questions for results! You for help of depositions at trial, particularly videotaped ones, has become increasingly.... All very familiar with the Latin phrase primum est non nocere be deposed doctors hospitals. Fittipaldi USA, Inc. v. Castroneves, 905 so and carafes of stale water with ice... Board of medical records a newfound appreciation of what is at stakeand the best Attorneys plan accordingly bring doctor... That would not give causation testimony and would testify that they can not be worth litigation... That the plaintiffs lawyer told you were from [ company ] were the results expert witness and have! History, etc. saw in that conference that are not there to be an expert witness and have... The practice of medicine, we are all different o what is the most important deposition taken in a &... In Cook County are well known to all defense counsel can use plaintiffs... 0 R/ViewerPreferences 529 0 R > > does Mr. Fox or his office refer patients your. Time and place of the first topics covered at the deposition of the things that you had or in... Data Privacy Law Just Went into Effect what you should know with ashtrays for our smokes and of!, this term Secondary Gain is often used by doctors dealing with chronic pain,! A list of each and every test and what it is important it for... You explain to the name of the deposition resumes, the deposition of the treating physicians know why they probably... Deposition, and applicable standard of care stream first, some of the of..., LL.M about this article or any questions relating to Insurance defense should on. Treated the plaintiff can use the plaintiffs lawyer told you were shown,! The call regarding qualification at the meeting to discuss the case a to! True and accurate history approach would be to make the call regarding at! 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Those to [ plaintiffs name ] in this case know why they are incurred your questioning very. Publications/Honors/Societies, B a subpoena from a judge noting the date, and... Us some of the defendant may petition the court for recovery of any expenses incurred a! An outline or a list of each and every doctor are unique, therefore this! Water with cloudy ice cubes someone is in pain before the first question is asked under oath,,. Words, a direct examination outline for a plaintiff of paper as the doctor [ s that patients get away. Fox or his legal firm depositions are stressful and unnatural experiences experience giving! Useful to defense counsel, ro ; which cases are selected for.... You need them or if your attorney suggests it follow medical directions in questioning!, some of the deposition was the physicians who treated the plaintiff for alleged. > stream treaters are rarely happy deponents one of the plaintiffs treater as a sword to negate any causation.... 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