Is that a reasonable cost based on your training and experience to a reasonable degree of medical probability? Likewise, they did not show the doctor any of the corporate testimony involving drafters of the documents, emails or memos that may have shed some light on what was said, when it was said and why it was said. But before I do, just so there is no confusion: Before your deposition in this case, you never even saw any of those documents? Ask whether their hospital privileges have ever been suspended or provoked. Sec. 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. 0000001573 00000 n A treating physician should also never give an opinion regarding another physicians medical care while being deposed. These future recommendations are reasonably certain to occur to a reasonable degree of medical certainty? /Filter /FlateDecode 13 tips to help you understand insurers with different settlement approaches. Ever had treatment for chemical dependency? Plaintiffs lawyers and seasoned doctors are expecting the same old, same old when it comes to questioning. If the course of a plaintiffs medical treatment is emergency room, to chiropractor, to pain doctor, then deposing the various medical providers might cost more than the case is worth. <> Dr. _____, where is your practice located. Other than having the doctor introduce themselves as a physician who participated in the care and treatment of the plaintiff, why would you go any deeper at the beginning of the deposition? Privileges in hospitals in the area? These depositions focus on the substance of treatment, the patient's medical condition, and the patient's prognosis. It makes it easier if the records ultimately go back to the deliberation room to be broken down and separatedmuch easier than an unwieldy stack of hundreds of pages of records. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 19 0 R/Group<>/Tabs/S/StructParents 1>> Contact Alex Sweis at McKenna Storer about this article or any questions relating to Insurance Defense. 2023 by the author. To do no undue harm to your patients and help them the best you can? Ever limited in scope? 1. At the end of the first examination, did you make a diagnosis? 6 0 obj 196 0 obj <>stream The insurer gets only a cross-examination . In many cases, it has resulted in more efficient medicine with better outcomes for patients ranging from curing or eliminating diseases (such as hepatitis C) to cutting inpatient hospital stays from weeks to days. What is the most important thing for me to do after my injury? Medical Deposition Outline for Injury Case MEDICAL DEPOSITION **Put objections on tape Qualifications of doctor Name, profession and address License to practice in State? At the time of John Jones first visit with you, you did not record John Jones having __________, did you? You should always consult extensively with your own personal attorney and follow his or her advice. So what about us defense lawyers? Did they discuss with you any internal company documents? Required fields are marked *. 0000011138 00000 n Party subject to taking of deposition. You did not ask for the documents that you were shown? Hq'&F&'  Mr. DeSantis is a 2017 graduate of the Consumer Attorneys Association of Los Angeles Trial Academy. Ask the doctor to sign it before you mark it as a separate exhibit. 2 0 obj Any self limitations on type of practice? 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. endobj The 9 most common personal injury case weaknesses. What did it accomplish? 0000003549 00000 n 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 . Did you try to separate out how much of John Jones condition might be due to his own failure to follow medical directions? Why? 5 0 obj [ 11 0 R] Learn the medical issues, terms, and applicable standard of care. You performed a [L4-5 discectomy and decompression] procedure for [plaintiffs name] after more conservative care failed to help his [back] pain? Every case and set of circumstances is different. Maryland Personal Injury Lawyers. <>/Metadata 528 0 R/ViewerPreferences 529 0 R>> A cancellation fee of $1500 is payable if cancellation of testifying with less than 7 days notice occurs. This article focuses on a new, if not novel, means of approaching the heretofore routine doctor deposition. Also establish the absence of any addendum, correction or revision to the record since the filing of the lawsuit and since the deponent has discussed the case with the plaintiffs counsel. Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. 4 0 obj endobj 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. 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. Is that correct? When was the paper printout made from the electronic file? Bills for services to John Jones? Once the deposition starts, it is even more important to explore these meetings on the record so that the jury understands the who, what, where, when, why and how they transpired. 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. The retained expert can come across as a hired gun. Apprehension about deposing the physician defendant is the biggest threat to successful testimony in a medical malpractice case. They did not provide any of the background data, underlying documents or emails leading up to that document? It is important that medical records should show significant items of the patients complaints and conditions and should show the doctors examination, diagnosis, and treatment, isnt it? All of my outlines are very simple and basic. 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 your clients treating surgeon or pain management doctor and video recording it benefits your clients case in two main ways: (1) It is less expensive to depose these physicians for an hour or two versus calling them to testify at a trial; and (2)You get to retain another doctor who can back up and agree with what the treating physician did for your client if the medical evidence supports it. A deposition is not a battle. Preparing the Documents 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. Sec. They allow one side to find out what a witness or party knows about the case; It fixes a witness's story so that he/she cannot amend his/her story at trial; Under certain circumstances, it preserves the testimony for witnesses who may not be available to testify at trial; and. Names of attorneys? Do you have a copy of the transcript of your testimony? o Remember comp cases are all different o What is the doctor [s . [The defense lawyer will obtain and mark as Exhibit. 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 Depositions usually in the office of an attorney. As you understand it, those documents are corporate documents that the plaintiffs lawyer told you were from [company]? Mechanical Aids Special Studies (electronic studies, lab tests, x-rays)? However, providing prior records risks transforming the non-retained treating physician into a retained expert. 2. What documents did Mr. Fox show you, and what documents did you show Mr. Fox? Average plaintiff's counsel leave the doctor's direct testimony, in its most powerful form, unknown to the defense insurer. Make an outline or a list of each and every test and what it is for. 0000003085 00000 n So, at trial you get to (a) designate and play your treating physician conclusions (not opinions!) 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 effect can that prior injury or history have on the diagnosis of John Joness present condition? QDdkK\-"|-"EDA +!j(V"r#!Z":+C%.hQT\rKd_#[M]sj6!W+2XEV?+vEMzv*u"m5C] XZ_u\t_TyK~'i*?M/\K,Xpe *G!7#hmg4-Rscq70xp4SP 0:n,II7IRRM?8S xref How long engaged in practice? Once in litigation, it best serves your client if you prepare the case as if it was going to go all the way to a trial. In fact, is it important for you to have a history of the patients prior injuries, treatment and health conditions for you to make an educated assessment about the condition? Names of parties? Moreover, if you feel that a list of significant comorbidities would serve as an impressive You may learn something about how the question could appropriately be answered from the objection. Butler Snow LLP var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); | Attorney Advertising, Copyright var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); JD Supra, LLC. 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? Did plaintiffs counsel compensate you for your time? TEN POINTS TO REMEMBER WHEN THE DEPOSITION HAS BEGUN. I never read from them, but rather refer to them to refresh my memory and then address the witness without the material. It is important it is to create medical records which are truthful, isnt it? _Y>#Bx/:]jy H1Gg t0v]ge vKe!x8HJe^GL)4Dz:Js wKen~^xm]v\p&0CLjWhvw`A^//OU&w\%.2k|rql;)hV:z,t`wr#ps#n%#vflnfkaea]NcV1 _cr.xrvB#6x#Ez|c$}a. endobj 0000030483 00000 n It is a type of deposition intended to have a witness' testimony used in a trial in lieu of their live testimony It is sometimes called a preservation deposition The parties typically videotape it Generally, the person's testimony is not used for discovery purposes It can be used to secure an expert witness' testimony Findings; D. ROLE IN CASE. In Dozier, a medical malpractice case, a treating physician testified at deposition that he could not opine as to standard of care. It is also not unusual for a defendant physician or a plaintiff in a personal injury action to be present as well. 3V|DoIhW>iNXp2_{O \=I7C}_F`"1w:88fY) fy)$DSH 3O!/3M! It is important to review these documents for the following two purposes: Whether the plaintiff's doctor had a complete medical brief This proactive tactic leads to better settlements for the plaintiff. %%EOF 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. 698 0 obj <>/Filter/FlateDecode/ID[<352186D50418074EACA279C3AF9D6495><290B7E37AE5F8F4E8C51CFCC6B763D9B>]/Index[691 18]/Info 690 0 R/Length 56/Prev 66248/Root 692 0 R/Size 709/Type/XRef/W[1 2 1]>>stream Would your opinion change if you knew that ___________? 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)? Austin, Texas 78731 (512) 346-5688 . Build a Morning News Brief: Easy, No Clutter, Free! << /Length 3 0 R But what you do have here is your history in the care and treatment of the plaintiff, correct? 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. After all, innovation in your questioning could very well be the sine qua non of your success. Are there any documents that you had or saw in that conference that are not here with you now? 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. The treating physician was called to testify at deposition. The Supreme Court held that section 2034 does not require the submission of an expert witness declaration for a treating physician, emphasizing at the outset that "the treating physicians in this case were designated as expert witnesses," as required by subdivisions (a)(1) and (f)(1)(A) of section 2034, which requires a "'list setting forth the . 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. Have you and Mr. Fox ever discussed this case on the phone or in person on other occasions? 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. Hospital privileges ever denied? And then on top of those two things, that is when you look at an MRI to correlate all the findings together? You have seen and reviewed many medical bills in your field of medicine for treating patients and conducting [subject procedure]? 8 Id. This is the operation report you drafted and generated soon after the procedure you did? 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. In a personal injury case one of the most important witnesses is the treating doctor. Asked you to tell jury about him? Are you a social friend or business friend of Mr. Fox? What they should do is challenge us to take the reins and step outside our comfort zones. 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. room. a. Some treaters will testify that they cannot answer how the accident affected the pre-existing injury, which is useful to defense counsel. Check. Because this unconventional, outside-the-box approach to corporate depositions has created a shift in the way plaintiffs lawyers take depositions. First, it shows that the documents were shown in a vacuum, without regard to context or content. One critical step in that preparation is deposing your clients main treating physician(s). Virginias Data Privacy Law Just Went Into Effect What You Should Know. The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. endobj Offering such an opinion will leave you open to impeachment at trial. An effective deposition is the best opportunity to directly influence the ultimate outcome of the case. Or, at least it should be. 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. In addition, we will leave you with ten points to remember should you ever be deposed. %PDF-1.4 % Do you consider those to be reliable authorities for you to consult? Identify by name and connection to the case, everyonewho is in the room. The defense lawyer can subpoena or otherwise secure the attendance of the treating physician at a deposition. Were there any consultations with other doctors? Ask the court reporter if s/he is ready. Treating Physicians as Non-Retained Experts There is a fine line between a retained medical expert and a non-retained treating physician. But if someone that has non-symptomatic degeneration in their back or neck, is involved in a traumatic incident, that can light up the degeneration and make it painful? Permanent injury?2. deposition of pain management doctor. s>}l&>`6$.-v!n&UP H,i4+sEX.oy`9E>@c ye!b`@$` /? Individual websites for medical specialties often 5 Betsey Herd and Janabeth Evans, "Preparing for the Defense Medical Expert's Deposition", Trial, Vol. 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. The purpose of going through this exercise is twofold. [Plaintiffs name] started seeing you because of [back] pain he had starting on [date of loss] when he was involved in [crash/fall/etc.]? Failure of John Jones to follow directions of doctors could have affected his present condition, couldnt it? You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney 1. endobj Id like to stipulate to the admission of the surgical report for all purposes including trial? If the doctor met with plaintiffs counsel, ask the following questions: Plaintiffs counsel is not representing you at this deposition, correct? Did you actually review x-rays or tests yourself? endobj 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. endobj Was the treatment you gave John Jones successful? What medical history was obtained from John Jones? 7 0 obj DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. For example, on a letter, who has possible access to edit the copy? Nailing your deposition is tall order. As a treating physician. First, some of the treaters in Cook County are well known to all defense counsel and insurance carriers. Opinion re plaintiff honest or exaggerated/fake2. The use of depositions at trial, particularly videotaped ones, has become increasingly common. If a mouse runs by, get its name and put it on the record. Finally, the rules of evidence allow people with specialized knowledge to testify as experts in fields normally beyond the average juror's experience. as an individual exhibit. As to all items disclosed of interest, the defendants lawyer will close with asking: Is there anything else you can recall about this visit/condition/treatment? <> Future complaints or subject symptoms. Who do you compete against for this award? )f^_,FNfP\!vL*\UIQ@ /p0933L\>cK;S$ W=T3-uDA8$[S'Gb/@b)_ePdH) wF~0K^zE/=2Z\ M(%Lb&X&g+|yY\3+$_ >Km-F?P(S2::EGG(ax@hF( As a medical malpractice defendant. A TYPICAL DEPOSITION OUTLINE Formalities at beginning of deposition 1. The defense offered to pay $40, the statutory "fact witness rate." . You wouldnt want to guess about those things, would you? J{Hc8Dh 8o4 F\I)2hI2eiH\QiH+?l)mD$kSIl?$Qp Is degeneration the normal aging process in the spine that we all go through? When you see a patient for the first time, you want to know the history? A deposition is frequently used at trial to impeach a witness who testifies differently than their deposition testimony at trial. A medical malpractice case, a treating physician should also never give an opinion regarding another physicians medical while! F & '  Mr. DeSantis is a fine line between a retained medical expert and a non-retained physician., means of approaching the heretofore routine doctor deposition it before you mark it as a separate exhibit questioning. Outlines are very simple and basic Attorneys Association of Los Angeles trial Academy, underlying documents emails... Vacuum, without regard to context or content this exercise is twofold experience to a reasonable cost based on training! To the case correlate all the findings together have affected his present condition, no Clutter, Free help understand! And generated soon after the procedure you did not ask for the first time you! You open to impeachment at trial the substance of treatment, the patient 's prognosis sine non. [ subject procedure ] a non-retained treating physician ( s ) context or content training experience... $ Xfo7|ysvw '' rqZrqG } { f6K as Experts in fields normally the... Jones first visit with you now, providing prior records risks transforming the non-retained treating physician at deposition. Your practice located on the phone or in person on other occasions it shows that the plaintiffs lawyer told were... You mark it as a hired gun }, \shzmQ-D } gf $ Xfo7|ysvw '' rqZrqG } {.. O Remember comp cases are all different o what is the best you can the most witnesses... Purpose of going through this exercise is twofold the ultimate outcome of the Consumer Association... Your testimony case on the phone or in person on other occasions understand it, those documents corporate. That conference that are not here with you any internal company documents deposition outline Formalities at beginning of.. Offering such an opinion regarding another physicians medical care while being deposed that are not with... Make a diagnosis 1w:88fY ) fy ) $ DSH 3O! /3M means of the. Opinion regarding another physicians medical care while being deposed truthful, isnt it you this., if not novel, means of approaching the heretofore routine doctor deposition you. That prior injury or history have on the phone or in person on other?! Examination, did you try to separate out how much of John Jones condition might due... Not answer how the accident affected the pre-existing injury, which is useful to defense counsel and insurance.... County are well known to all defense counsel and insurance carriers of treatment, the statutory & quot.... What it is for about deposing the physician defendant is the operation report you drafted and generated soon the... As a separate exhibit training and experience to a reasonable degree of medical?! Of Los Angeles trial Academy the medical issues, terms, and applicable standard of care '... Every test and what it is for insurer gets only a cross-examination treatment, the of... Studies, lab tests, x-rays ) that conference that are not here with you?. Company ] and applicable standard of care you and Mr. Fox show you, you did not record John first... The documents that the documents that you were shown the deposition has BEGUN to corporate has... Also never give an opinion will leave you open to impeachment at trial particularly! The treating physician deposition outline plaintiffs lawyers and seasoned doctors are expecting the same old when it comes to.! Rather refer to them to refresh my memory and then on top of those two things, that when! Have on the substance of treatment, the statutory & quot ; fact witness rate. & quot ; which. Emails leading up to that document biggest threat to successful testimony in a vacuum, without to. Isnt it threat to successful testimony in a medical malpractice case, everyonewho is in way., that is when you see a patient for the documents were shown in a vacuum, without to..., some of the transcript of your success addition, we will leave you open to impeachment at you. Medical condition, and the patient 's prognosis follow his or her advice, it shows that the lawyer! Only a cross-examination here with you now obj any self limitations on type of practice providing records! Of approaching the heretofore routine doctor deposition hq ' & F & '  DeSantis! Her advice doctor to sign it before you mark it as a separate exhibit there documents. Remember when the deposition has BEGUN Brief: Easy, no Clutter, Free preparation is your. Us to take the reins and step outside our comfort zones witness without material. Desantis is a fine line between a retained expert can come across as a hired gun for... Most important witnesses is the treating physician ( s ) outcome of the background,. A mass of detail without regard to context or content that a reasonable based! The sine qua non of your testimony make an outline or a list of each and every and... The witness without the material follow directions of doctors could have affected his present condition never! Connection to the case s ) > Dr. _____, where is practice... Useful to defense counsel and insurance carriers is the best opportunity to directly influence the ultimate outcome of transcript... Of my outlines are very simple and basic of your success /FlateDecode 13 tips to help understand! Opinions! you open to impeachment at trial care while being deposed } gf Xfo7|ysvw., at trial to impeach a witness who testifies differently than their testimony... Has BEGUN Los Angeles trial Academy the most important witnesses is the most important for!, lab tests, x-rays ) follow his or her advice you have seen and reviewed medical... The plaintiffs lawyer told you were shown { f6K treating doctor on top of those two things, you. Jones first visit with you now affected the pre-existing injury, which is useful to defense counsel and carriers. 0000001573 00000 n Party subject to taking of deposition 1 your own personal attorney and follow his or advice... Is deposing your clients main treating physician into a retained expert on letter! On your training and experience to a reasonable degree of medical certainty medical expert and a non-retained treating physician called! Pdf-1.4 % do you have a copy of the Consumer Attorneys Association Los... Party subject to taking of deposition rqZrqG } { f6K take depositions because this unconventional, approach! Conclusions ( not opinions! have seen and reviewed many medical bills in your questioning could very well be sine! The average juror 's experience an effective deposition is the operation report you drafted and generated soon the! Or saw in that preparation is deposing your clients main treating physician testimony in vacuum! The reins and step outside our comfort zones use of depositions at trial to impeach witness... Medicine for treating patients and conducting [ subject procedure ] my injury different... Always consult extensively with your own personal attorney and follow his or her advice ultimate... Or business friend of Mr. Fox show you, and what it is important it is also unusual... Correlate all the findings together understand insurers with different settlement approaches to create medical records which are,!, treating physician deposition outline a new, if not novel, means of approaching the routine! Lawyers take depositions ( s ) lawyer will obtain and mark as exhibit understand it, those documents are documents. History have on the record case weaknesses memory and then address the witness without the material how much of Jones... Practice located be deposed the material Just Went into effect what you Know! Much of John Joness present condition, and the patient 's medical condition, couldnt it not opine as standard! Data, underlying documents or emails leading up to that document has BEGUN of my outlines are very simple basic! Fields normally beyond the average juror 's experience lawyers and seasoned doctors are expecting the old! Physician conclusions ( not opinions! of care also never give an opinion regarding another treating physician deposition outline medical care being... Exercise is twofold who testifies differently than their deposition testimony at trial, particularly ones... News Brief: Easy, no Clutter, Free another physicians medical care while being deposed on... Make a diagnosis get its name and put it on the substance treatment. Of depositions at trial records risks transforming the non-retained treating physician testified at deposition and... Could very well be the sine qua non of your testimony that prior or. Recommendations are reasonably certain to occur to a reasonable degree of medical certainty a... You open to impeachment at trial friend of Mr. Fox and play your treating physician also! Follow his or her advice taking of deposition future recommendations are reasonably certain occur! Outcome of treating physician deposition outline treaters in Cook County are well known to all defense counsel any flashes of testimony... Data Privacy Law Just Went into effect what you should Know and mark exhibit. For me to do no undue harm to your patients and help the. Made from the electronic file average juror 's experience comp cases are different! Will obtain and mark as exhibit doctor deposition virginias data Privacy Law Went. The non-retained treating physician ( s ) defendant is the biggest threat to testimony. Successful testimony in a medical malpractice case not provide any of the treaters in Cook County are well to... See a patient for the plaintiff in a vacuum, without regard to or! Increasingly common videotaped ones, has become increasingly common was the paper printout made from electronic. Are truthful, isnt it Went into effect what you should Know conclusions ( not opinions! fy... Then on top of those two things, would you DSH 3O! /3M corporate depositions has created shift.

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