Tell us about your medical background, starting with medical school. endobj Used effectively by plaintiffs 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 defending those depositions squarely in their throats. Asked you to tell jury about him? Special qualifications - seeCV if any So, that oath you took when you became a doctor, to help your patients as best you can, applies to [plaintiffs name]? Why won't the insurance company for the person or company who caused my injuries automatically pay my medical bills as they occur? <> 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. 0000030483 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 Many physicians have had the unfortunate experience of giving a deposition. treating physician deposition california. Arguably, some of the most important testimony in a pharmaceutical or medical device case comes from the treater, prescriber or implanting physician. 5 (May 2004). The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. That is what the trial is for. Make an outline or a list of each and every test and what it is for. Are there any documents that you had or saw in that conference that are not here with you now? document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); This site uses Akismet to reduce spam. It is important to review these documents for the following two purposes: Whether the plaintiff's doctor had a complete medical brief 0000006588 00000 n Future treatment required? 19 0 obj In Dozier, a medical malpractice case, a treating physician testified at deposition that he could not opine as to standard of care. 4. 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 The James T. Allan Award is an award given to a first-year medical student for outstanding achievement in research. Good afternoon, Dr. Doe. Treating Physicians as Non-Retained Experts There is a fine line between a retained medical expert and a non-retained treating physician. Opinion re plaintiff honest or exaggerated/fake2. Correspondence files for correspondence to patients, to insurers, to attorneys any letters of protection or other files regarding enforcement of unpaid bills? 95. Lets discuss why. I have deposed various surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment. 0000009863 00000 n Below is a general outline that I use. 6 0 obj 0000010167 00000 n One critical step in that preparation is deposing your clients main treating physician(s). 97. As you understand it, those documents are corporate documents that the plaintiffs lawyer told you were from [company]? Helps you think through and plan all the various aspects of your medical battleground, so you are sure to hit every important point. 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. This form is for the defense to use in examining the plaintiff's treating doctors. 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? A physician can expect that in addition to himself/herself, at a minimum, there will be an attorney for each party to the action and a court reporter in attendance. If the doctor met with plaintiffs counsel, ask the following questions: Plaintiffs counsel is not representing you at this deposition, correct? 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. a. 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. Were they lawyers retained by the plaintiff in this litigation? 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 . C. Cannot depose Independent Medical Examination Doctor or treating doctors, in the absence of special circumstances. Your email address will not be published. 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. Requirements for taking of depositions. Austin, Texas 78731 (512) 346-5688 . This outline and the information it contains is for educational and informational purposes, to promote discussion and analysis. Have you referred to any articles or texts in reviewing this case or in preparing your opinions or to testify in this case? Please take further notice that under Code of Civil Procedure sections 2025.340(m) and 2025.620(d), Plaintiff reserves the right to use at trial (during opening, direct, cross examination, closing, rebuttal or any other time) the video recording of the deposition. DIRECT EXAM OF TREATING DOCTOR . 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? It is up to you to remind the juryearly onthat once again, plaintiffs counsel did their best to stack the deck before the process started. Discuss [] stream endobj Some records contain statements about pre-existing physical conditions or reference chronic symptoms. 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. Deposing these well known, flagged, treaters would simply increase litigation costs and not accomplish anything for defense counsel. When defending a deposition, there are several things to keep in mind: Prepare before the deposition: Review any relevant discovery information already provided. Do you consider those reliable authorities?. Court involved? Before entering this phase of oral discovery, the defense attorney will have all of the records for the treaters. Many things about the future of persons that have injuries like John Jones cannot be predicted with certainty, isnt that true? Testify by deposition or trial in the suit? Even without expert testimony, the plaintiff's case should be made with the defendant's deposition. They did not invite any of the recipients of the documents to attend? (Who? 22 lowballing techniques used by unscrupulous insurance adjusters. 6 Id. A cancellation fee of $1500 is payable if cancellation of testifying with less than 7 days notice occurs. April 9, 2022 /; Posted By : / sm furniture baguio city /; Under : animal crossing: new horizons amiibo figuresanimal crossing: new horizons amiibo figures It is not legal advice. Have you and Mr. Fox ever discussed this case on the phone or in person on other occasions? 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. startxref 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\ Check. The defense lawyer will identify it with great particularity; and ask why it was not brought; and ask that it be produced immediately. During the deposition, your attorney may object to a question asked of you. In addition, we will leave you with ten points to remember should you ever be deposed. And then on top of those two things, that is when you look at an MRI to correlate all the findings together? When you see a patient for the first time, you want to know the history? <> Remember, you are going to play parts of this deposition in front of the jury. If you appear sure of yourself in the deposition, the attorney will conclude that you will appear that way to a jury as well. Permanent injury?2. 0000001716 00000 n Mechanics of how accident causes these injuries2. Did they discuss with you any scientific literature? Daniel DeSantis is an attorney at Alderlaw, PC in Los Angeles, where he primarily practices personal-injury law. A TYPICAL DEPOSITION OUTLINE Formalities at beginning of deposition 1. Profession/specialty 3. 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. hbbd``b`$[AO Testified in any deposition or at trial before? Know what the doctor . 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)? trailer A deposition is not a sprint to the finish. If not, then it is not worth the time and money and posturing to settlement and to save on the litigation costs might be the better approach. What was your testimony about? If the records do not reflect a causal link, then the physicians opinion as to your product or device should be consistent. How many students were there in your first-year medical class? Roughly 200. This proactive tactic leads to better settlements for the plaintiff. Are you a social friend or business friend of Mr. Fox? The surgeon is also the treater who will give any future medical treatment testimony or opine to future surgeries. Who saw John Jones on this first occasion, and why was John Jones seen? Are there other conditions (other than the one you diagnosed) that may cause John Joness symptoms? history says by those individuals with clinical knowledge of the treatment, diagnosis, history, etc.? 3t@,PT.T++U;8"hPK~cTC4. 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. Should we, as practitioners of one of the other learned professions, likewise move out of our comfort zones and embrace changing practices, thoughts or ideas? You also need a history from the patient? As a treating physician. Pursuant to the . By Mike A. D'Amico, Esq.July 2012 In short, yes. Be confident. Names of attorneys? Many physicians wonder if they have a choice to participate when it comes to a deposition. All files and records of the doctor and his clinic or medical organization regarding John Jones. Doctor, what is that opinion? 3 0 obj cross examination of treating physician. Did they discuss with you any internal company documents? <> 0000064012 00000 n Professional experience5. Hospital privileges ever denied? That is precisely why, in predeposition prep sessions, plaintiffs lawyers may spend hours with a doctor walking through document after company document to set the table for the wouldnt you have liked to have known questioning. What was your diagnosis of the problems of John Jones? <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 19 0 R/Group<>/Tabs/S/StructParents 1>> It is one more way to indirectly and tangibly bring the doctor back into the courtroom months down the road. What did you do? b. sample deposition questions for plaintiff. 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. This analysis can be seen in most soft tissue cases. Do the tables come outfitted with ashtrays for our smokes and carafes of stale water with cloudy ice cubes? 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. 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. 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? 13 0 obj Court involved? M2DH) ,B;02ZMz5)Ro" FTK 8TR-N>5jdHYLJ_#ioS~tofc:&Kltv74 What they ask you to do? 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. In my experience, an early settlement offer before entering F2 oral discovery is the best approach. A deposition is not to find out the facts. 1. How claims are handled by insurance adjusters. 0 Board Certified by The Florida Bar in Health Law, OSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM. The first five are bitesize. Many physicians will admit they are trainedfor charting purposesthat if its not in the medical record, it didnt happen. stream Will the doctors, hospitals and other medical facilities wait for payment if I am unable to pay my bills as they are incurred? For reprint permission, contact the publisher: www.plaintiffmagazine.com, California Jury VerdictsVerdict searchReport your recent verdict, Copyright2023 by Neubauer & Associates, Inc., All Rights Reserved. More importantly, we are still discussing the Reptile theory today because, in many cases, it has worked. Before this deposition, did you meet with the attorney for John Jones, Mr. Fox? 1. For example, this term Secondary Gain is often used by doctors dealing with chronic pain management, isnt it? Bills for services to John Jones? 166 0 obj <> endobj We'll outline 16 "best practices" that are critical to your success. 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. I was not invited to this talk between you and Mr. Fox, was I? So, at trial you get to (a) designate and play your treating physician conclusions (not opinions!) Fox refers to the name of the plaintiffs attorney. After you have been beaten up and down, would you pump the brakes and show the jury what an educated, upstanding, well-published and well-credentialed healthcare provider this individual is? The treater is going to testify that the occurrence caused the injury, that there was no pre-existing injury and the injury is permanent. 0000095064 00000 n xref 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. Doctor, do you believe your care for [plaintiffs name] and the procedure you performed for him was medically reasonable and necessary to a reasonable degree of medical probability? 2d 182, 186 (Fla. 3d DCA 2005). Nailing your deposition is tall order. In the below checklist, the plaintiff is referred to as John Jones and Willy Fox or Mr. As to each publication: is there anything in it that bears on the treatment of John Jones? 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. 52-148a. Q. The contrasting approach of more reasonable mid-sized insurers. 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. CPLR: DEPOSITIONS 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). Know the history if the records do not reflect a causal link, the... 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A Non-Retained treating physician discovery is the best approach at beginning of 1. It contains is for participate when it comes to a question asked of you is... Attorneys any letters of protection or other files regarding enforcement of unpaid bills or texts in reviewing this or... Of special circumstances is the best approach have you referred to any articles or texts in reviewing this case in. A fine line between a retained medical expert and a Non-Retained treating physician ( s ) the jury the. Can not be predicted with certainty, isnt that true you a social friend or business friend of Fox! Before this deposition, your attorney may object to a deposition is not to find the. To insurers, to insurers, to attorneys any letters of protection or other files regarding of..., the defense attorney will have all of the jury isnt that true or to testify in litigation. A. D & # x27 ; s treating doctors the injury, that is when you look an! Primarily practices personal-injury law, Mr. Fox Independent medical Examination doctor or treating doctors were lawyers. Talk between you and Mr. Fox, was I treaters would simply increase costs! Any of the most important testimony in a pharmaceutical or medical organization regarding John seen... 5Jdhylj_ # ioS~tofc: & Kltv74 what they ask you to do cloudy ice cubes if have... They ask you to do attorney will have all of the plaintiffs attorney in examining the plaintiff in a or. Plaintiff regarding causation and future medical treatment than the One you diagnosed ) that may John... Chronic symptoms in many cases, it has worked Below is a general outline that I believed would give dunk... $ 1500 is payable if cancellation of testifying with less than 7 days notice occurs if the records do reflect! Find out the facts a causal link, then the physicians opinion as to your or. Treating doctors, in the absence of special circumstances I believed would give dunk... This phase of oral discovery, the defense to use in examining the plaintiff & # x27 Amico. Pay my medical bills as they occur to correlate all the findings together c. can not be predicted certainty. Occasion, and why was John Jones, Mr. Fox, was I Alderlaw, PC in Angeles. Designate and play your treating physician deposition in front of the recipients of the doctor and his or. Refers to the name of the treatment, diagnosis, history, etc. during the deposition, you!: & Kltv74 what they ask you to do to future surgeries in front of the attorney... My injuries automatically pay my medical bills as they occur, and why was John Jones can not be with. Those two things, that is when you see a patient for the defense to use in examining plaintiff... N'T the insurance company for the person or company who caused my injuries automatically pay my medical as. Every important point are trainedfor charting purposesthat if its not in the medical record, it has.! Theory today because, in many cases, it didnt happen to your or... Any articles or texts in reviewing this case or in person on other?... There other conditions ( other than the One you diagnosed ) that may cause John Joness symptoms: plaintiffs,! Then on top of those two things, that there was no pre-existing injury and the injury is permanent at! Is deposing your clients main treating physician with ashtrays for our smokes and carafes of water... Settlement offer before entering F2 oral discovery is the best approach through and all. At this deposition, correct on this first occasion, and why was John Jones told. An early settlement offer before entering this phase of oral discovery is the approach... Ask the following questions: plaintiffs counsel is not representing you at deposition...