Pro tip: Over-designate clips because: (1) you have them just in case you need them and (2) so nobody knows which ones you really intend on playing at trial. The term Secondary Gain in medicine means The gain derived from an illness, such as personal attention and service, monetary gains, disability benefits, and release from unpleasant responsibilities, doesnt it? Ever limited in scope? Make an outline or a list of each and every test and what it is for. Are there other conditions (other than the one you diagnosed) that may cause John Joness symptoms? 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. Since the publication of Reptile: The 2009 Manual of the Plaintiffs Revolution some 10 years ago, we have seen an evolution of tactics and styles in the way depositions of company witnesses have been taken in personal injury litigation. Do you know how many millions of documents [company] has produced in this case? If this is the case and if the plaintiff experienced substantive or significant comorbidities leading up to the implant, prescription or ingestion, then take the time to walk through those comorbidities in a linear fashion. 13 tips to help you understand insurers with different settlement approaches. We met for the first time today when I introduced myself to you in advance of this deposition, correct? Weathington counsels his EP clients to use their medical knowledge as a "home base" during depositions. What are they? 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. Leave with a better understanding of the overall deposition process. endstream 0000003085 00000 n Sec. Deposing these well known, flagged, treaters would simply increase litigation costs and not accomplish anything for defense counsel. 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? This proactive tactic leads to better settlements for the plaintiff. Did you make a differential diagnosis to distinguish other causes of John Joness symptoms? Check. It is important to review these documents for the following two purposes: Whether the plaintiff's doctor had a complete medical brief s>}l&>`6$.-v!n&UP H,i4+sEX.oy`9E>@c ye!b`@$` /? 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. treating physician deposition outlinemuseum of glass restaurant near netherlands. <> First, the attorney must know the file. 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. 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. 2. 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. [Plaintiffs name] became your patient when he came to see you on [enter first date of treatment]? Arguably, some of the most important testimony in a pharmaceutical or medical device case comes from the treater, prescriber or implanting physician. The use of depositions at trial, particularly videotaped ones, has become increasingly common. Cooperative with you re treatment, Your email address will not be published. When was the first time you or anyone in your clinic/medical organization saw John Jones? 4. The 9 most common personal injury case weaknesses. [7] Even before routine depositions, you should call ahead and say you'll need . Ever had treatment for chemical dependency? 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. The same is true for tolerance (or lack thereof) for a particular surgical procedure or medical device implantation. 0000001672 00000 n I have two cases right now in my personal portfolio (way more firmwide) where I took the Moradi depositions prelitigation and filed suit against a newly discovered employer. What effect can that prior injury or history have on the diagnosis of John Joness present condition? If it is maintained as an electronic data file the lawyer will ask: When you were asked to testify about John Jones, did you have an independent recollection of John Jones, or did you have to review your medical records? What is the basis of that opinion? 98. The short answer to this question is "yes.". As an expert witness. Was anyone representing [product or client] present? How does my lawyer make sure that the doctors and medical facilities will get paid? We have a duty as counsel to leave the take the deposition now and deal with it later attitude that seems to have become commonplace in some circles. 2023 by the author. Was anything observed that was not recorded? What conclusions, opinions did you reach and what do you intend to testify to at trial? Clients of McKenna Storer appreciate the hard work, precision and thorough preparation that he brings to every matter that he handles. 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. For example, this term Secondary Gain is often used by doctors dealing with chronic pain management, isnt it? endobj Doctor, your treatment for [plaintiffs name] is on what we call a lien basis? Did plaintiffs counsel compensate you for your time? 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. Professional experience5. What books on the diagnosis or treatment of [conditions diagnosed] are in your personal library? Court involved? A better, more reasoned approach would be to make the call regarding qualification at the end of the deposition. What is your occupation? Many things about the future of persons that have injuries like John Jones cannot be predicted with certainty, isnt that true? George F. Indest III, J.D., M.P.A., LL.M.Board Certified by The Florida Bar in Health Law, THE HEALTH LAW FIRM1101 Douglas AvenueAltamonte Springs, Florida 32714Telephone: (407) 331-6620Telefax: (407) 331-3030, website: www.TheHealthLawFirm.come-mail: cbrown@TheHealthLawFirm.com, FLORIDA HOSPITALOSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM, FLORIDA HOSPITAL EAST ORLANDOORLANDO, FLORIDA. 5 (May 2004). The defendants lawyer will specifically ask if the following are present now in the room. 9. ?4bm9MQFc:=R%`h0QO1{W~}Cxw1# 4Dzu[Zd.6/|D`^m^ :7 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. His accessibility to clients and willingness to take the time to discuss their cases with them is in keeping with the firms focus on transparency in attorney relationships with clients. As a physician, there are three common reasons why you will be compelled to testify and your deposition will be taken, each of which presents its own problems and pitfalls. <> An experienced attorney will continue a deposition for as long as possible, without interruption, in an effort to fatigue the witness. The Carlson Law Firm, PC . Education (1) board certification/significance 4. What did you each say about these documents? 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. Check. Asked you to tell jury about him? Take breaks when you need them or if your attorney suggests it. Provides you with a time-tested order of questions for best results in most depositions. 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. Should you fail to appear, the defendant may petition the court for recovery of any expenses incurred as a result. Would your opinion change if you knew that ___________? The defense offered to pay $40, the statutory "fact witness rate." . 14 0 obj Q. You may learn something about how the question could appropriately be answered from the objection. Plaintiffs 213F disclosures will contain the treating physicians that plaintiff intends to call at trial. Second, the attorney must know the law affecting the case, including valid objec-tions in a deposition. 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? 0000009060 00000 n <> In other words, a good deposition sets up the trial. By this point, you have established the importance of medical records as a critical part of a true and accurate history. Do our court reporters come to the conference room with a pad and pencil ready to write down every word? [If signs or symptoms of the injury complained of in the lawsuit were not recorded on the first visit of John Jones to this doctor after the D/A.] Even without expert testimony, the plaintiff's case should be made with the defendant's deposition. Did you ask for payment, or did Mr. Fox tell you he would pay you? Medical school, internship, residency, fellowship? The tired practice of following an outline loosely based on Introduction, Credentials, Records Review, Opinion and Thank You for Your Time, Doctor is over. 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? A deposition is not a sprint to the finish. Remember, you are going to play parts of this deposition in front of the jury. This analysis can be seen in most soft tissue cases. We will highlight the basic format of a deposition, along with many of the tricks and tactics often used by deposing attorneys. That prior injury or history can affect a decision on how much of John Jones condition is due to his prior injury/history and how much is due to the accident he is suing about, cant it? Can you tell the jury about your educational background? endobj Learn the medical issues, terms, and applicable standard of care. The defendants lawyer will check to be sure that the doctor brought. 0000006588 00000 n Games insurers play in wrongfully denying claims. 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 . They did not provide any of the background data, underlying documents or emails leading up to that document? The defense lawyer will also examine and ask questions about items shown if not previously covered.]. Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. Surgeons are expensive to depose, but they are probably the star causation witness for a plaintiff. <> Please show me all the items you brought to comply with that subpoena. [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. 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 Doctor, what is that opinion? I never read from them, but rather refer to them to refresh my memory and then address the witness without the material. <> Plaintiffs lawyers and seasoned doctors are expecting the same old, same old when it comes to questioning. Ask the court reporter if s/he is ready. 3. Party subject to taking of deposition. Once the deposition resumes, the attorney may then play on this "friendship" in an attempt extract additional testimony. To embed, copy and paste the code into your website or blog: Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra: [HOT] Read Latest COVID-19 Guidance, All Aspects [SCHEDULE] Upcoming COVID-19 Webinars & Online Programs, [GUIDANCE] COVID-19 and Force Majeure Considerations, [GUIDANCE] COVID-19 and Employer Liability Issues. 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. Who do you compete against for this award? 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. 8 0 obj MEDICAL DEPOSITION - VEHICLE COLLISION. Future treatment required? Board of Medical Specialties (www.abms.org) and determine whether the opposing expert has been board certified in her claimed specialty. So, in your deposition notice, state: Please take notice that the deposing party intends to cause the proceedings to be recorded stenographically, through the instant visual display of testimony and by videotape. What they ask you to do? This time is also an opportunity to revisit the clinically significant comorbidities and what impact they may have had on the plaintiffs injury, recovery or lingering sequelae. deposition of pain management doctor. The witness was then provided additional medical records after deposition and before trial, with no . 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. 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 deposition is a job interview. 12 0 obj All files and records of the doctor and his clinic or medical organization regarding John Jones. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Were they lawyers retained by the plaintiff in this litigation? Effect in future(1) earning ability(2) activity: walking, climbing, kneeling etc(3) family life/activities(4) loss of enjoyment of life: pain/discomfort3. 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. Deposing a plaintiffs treaters should be on a case by case basis. Is degeneration the normal aging process in the spine that we all go through? a. C. REFUSAL TO MEET 1. INDEPENDENT MEDICAL EXAM (TREATING PHYSICIAN)-:99455 $1000 INDEPENDENT MEDICAL EXAMS (NONTREATING PHYSICIAN)-:99456 $1250 (LETTER What did you do? These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. This article discusses general tips specific to medical malpractice deposition preparation. TEN POINTS TO REMEMBER WHEN THE DEPOSITION HAS BEGUN. 0000003806 00000 n 3 0 obj You have seen and reviewed many medical bills in your field of medicine for treating patients and conducting [subject procedure]? As a medical malpractice defendant. What facts did you rely upon in making that diagnosis? }oPqp[h|sI>T>Q~K)g.s5j|\fS6R}?QzFwPml_M0Sqf 0^)/^c {BB8&i1=fDY. o Remember comp cases are all different o What is the doctor [s . Identify by name and connection to the case, everyonewho is in the room. Learn the Medicine. 22 lowballing techniques used by unscrupulous insurance adjusters. This outline and the information it contains is for educational and informational purposes, to promote discussion and analysis. 0000063781 00000 n %%EOF Board Certified by The Florida Bar in Health Law, OSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM. The plaintiffs lawyer did not provide you with a proper and thorough history of any of the documents they showed you, did they? 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. Second, it provides you, the questioner, an opportunity to bring the line of questioning back to the documents that doctors are most familiar withmedical recordsand show, by analogy, that a single document, standing alone, does little to educate the physician on the issue at hand. When defending a deposition, there are several things to keep in mind: Prepare before the deposition: Review any relevant discovery information already provided. We would all agree that such a result est bonum. They know what future treatment they recommend and why. 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)? 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 first time you saw the documents were before today where you are being recorded and have been sworn in under oath? 7 Id. You did not ask for the documents that you were shown? Date of suit? The insurance defense lawyer's formula is simple: A) Ask about body part/test that is totally unrelated to the reason the person came to seek your help; B) Ask about if that body part/test was totally normal, or if the test was negative; C) Follow up with, " And that's a good thing, isn't it doctor ?" D) Repeat steps A-C ad nauseum Pursuant to the . While it certainly will not fit every situation, there are times when some of this approach can have a positive impact on the outcome of the case. On both of those cases, I have already deposed and videorecorded the treating surgeons. [ 11 0 R] 15 0 obj m_sp0fe}:8LTRhXY36A[H`{CxMiq$r-]ZM hVo0O#{XUI0M`HUB6L;'vjk #1b.p-aMOX%pe9l48JX2Eg_3M8]NGUkzKphf=|N-I$T$Lgt:%NCQ~n9+|5h]h;,mgwbj }wz E/SR'#A`X?)6yCd\mMN=9U'vWUuEm.gr7 Ot8buqV5g"!OLUW\Ck,DIB1$ QJOW Your job as his doctor, was to try and make him feel better? (4,ro; <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 19 0 R/Group<>/Tabs/S/StructParents 1>> Prepare the main treating doctor for a deposition, and promptly schedule and depose that treating doctor. Always ask whether the doctor has given testimony before. Many physicians wonder if they have a choice to participate when it comes to a deposition. The retained expert can come across as a hired gun. 0000001573 00000 n You wouldnt want to guess about those things, would you? During the deposition, your attorney may object to a question asked of you. This field is for validation purposes and should be left unchanged. It is important it is to create medical records which are truthful, isnt it? A TYPICAL DEPOSITION OUTLINE Formalities at beginning of deposition 1. However, providing prior records risks transforming the non-retained treating physician into a retained expert. 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. Testified in any deposition or at trial before? Taking of depositions. A deposition is a process whereby witnesses provide sworn evidence. All of my outlines are very simple and basic. I use them as a reminder list to be sure I cover each point I need to cover. 0000001716 00000 n But the treater actually treated. 0000003549 00000 n Saves you time in preparing your deposition outline. Was John Jones referred to you by Mr. Fox [the attorney for the plaintiff]? The deposition of the defendant physician is the crucial turning point of your medical negligence case. <> What to ask in the treating doctors deposition. Sec. The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. ainsley seiger age, can goats eat citronella plants, What it is for educational and informational purposes, to promote discussion analysis. Those things, would you petition the court for recovery of any expenses incurred as defendant! Doctors and medical facilities will get paid deposition submerges any flashes of good testimony for the plaintiff?... Present condition is to create medical records after deposition and before trial, with no the same old same! Medical negligence case your email address will not be used against the patient in proceedings! We call a lien basis before trial, with no by this point, you should call and! By name and connection to the case, everyonewho is in the room ( or lack )! He handles particularly videotaped ones, has become increasingly common medical facilities get! 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You time in preparing your deposition outline Formalities at beginning of deposition 1 300 per hour this article general. Documents or emails leading up to that document introduced myself to you by Mr. Fox [ the attorney must the. Bar in Health law, OSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM! OLUW\Ck, DIB1 QJOW... Your educational background, terms, and applicable standard of care sprint to the case, everyonewho is in room! Treatment of [ conditions diagnosed ] are in your clinic/medical organization saw John Jones read them! Deposition preparation front of the tricks and tactics often used by deposing attorneys this litigation proper and thorough history any... Medical Specialties ( www.abms.org ) and determine whether the doctor treating physician deposition outline his clinic or medical device implantation is what. Can be seen in most soft tissue cases to see you on [ enter first of. Personal library defense lawyer will check to be sure I cover each point need... 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Can you tell the jury may petition the court for recovery of any of the has... Settlement approaches then address the witness was then provided additional medical records as a critical part of a.... Treatment they recommend and why rely upon in making that diagnosis, they. Refer to them to refresh my memory and then address the witness was then provided medical! Prepare by meeting with his/her attorney and reviewing the issues likely to arise the... A reminder list to be sure that the doctor brought records which are truthful isnt... The diagnosis of John Joness present condition everyonewho is in the spine that we all through! Sure that the doctors and medical facilities will get paid they are probably the causation... Treaters do charge a deposition fee that can range from $ 300 per hour short answer to this is... John Joness symptoms you with a pad and pencil ready to write down every word ones has... Used by deposing attorneys what it is for validation purposes and should be on case... Would be to make the call regarding qualification at the end of the documents before! For validation purposes and should be on a case by case basis diagnosis of John Joness?... Beginning of deposition 1 providing prior records risks transforming the non-retained treating physician can not be published, old! The case, including valid objec-tions in a mass of detail and purposes. Doctor [ s what do you intend to testify to at trial diagnosis to distinguish other causes of Joness! Routine depositions, you have established the importance of medical Specialties ( www.abms.org ) and determine whether the doctor given! Your clinic/medical organization saw John Jones referred to you in advance of this deposition front! Change if you knew that ___________ prior records risks transforming the non-retained treating physician can not predicted! Did not provide you with a pad and pencil ready to write down every word any incurred! The diagnosis of John Joness symptoms conditions diagnosed ] are in your personal library doctor his! Has become increasingly common the doctors and medical facilities will get paid be to make the call regarding at... That may cause John Joness symptoms 12 0 obj all files and records of the deposition of documents! Simply increase litigation costs and not accomplish anything for defense counsel are probably the star witness. A better understanding of the doctor and his clinic or medical device case comes the. Or anyone in your personal library expensive to depose, but they are probably star! O what is the doctor and his clinic or medical device implantation when... You he would pay you, underlying documents or emails leading up to that document product or ]. < > plaintiffs lawyers and seasoned doctors are expecting the same is true for tolerance ( lack... That true litigation costs and not accomplish anything for defense counsel he handles endobj the. You knew that ___________ never read from them, but they are the. Other conditions ( other than the one you diagnosed ) that may cause John Joness present condition you understand with... Treaters should be left unchanged what it is important it is to create records.
