Sec. I never read from them, but rather refer to them to refresh my memory and then address the witness without the material. 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. Every case and set of circumstances is different. endobj Have you and Mr. Fox ever discussed this case on the phone or in person on other occasions? xref A. A cancellation fee of $1500 is payable if cancellation of testifying with less than 7 days notice occurs. Over the past 20 years, the advent of the internet and other technological innovations, coupled with novel approaches to assessing, diagnosing and treating patients, has led to a paradigm shift in the way many doctors practice medicine. endobj Since the deposition, you have not seen any company documents? Some treaters will testify that they cannot answer how the accident affected the pre-existing injury, which is useful to defense counsel. You have seen and reviewed many medical bills in your field of medicine for treating patients and conducting [subject procedure]? Generally the defense gains an advantage in the deposition of a plaintiffs treating doctor by making the examination, long, detailed, and boring. The same is true for tolerance (or lack thereof) for a particular surgical procedure or medical device implantation. endobj Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. Always ask whether the doctor has given testimony before. endobj Case factors which suggest plaintiff fraud. 11 ways insurers stonewall personal injury claimants. Profession/specialty 3. m_sp0fe}:8LTRhXY36A[H`{CxMiq$r-]ZM State in a loud, clear voice that the deposition is beginning. Any self limitations on type of practice? And if a patient brought in one single page of a medical record out of thousands, would you want to see or have knowledge of the situation to put it into context? The deposing attorney may invite assistants, including consulting physicians, nurses, or paralegals to help them in analyzing the testimony and framing questions. 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. Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. Generally the defense gains an advantage in the deposition of a plaintiff's treating doctor by making the examination, long, detailed, and boring. Mr. DeSantis is a 2017 graduate of the Consumer Attorneys Association of Los Angeles Trial Academy. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Below is a general outline that I use. Should you fail to appear, the defendant may petition the court for recovery of any expenses incurred as a result. }oPqp[h|sI>T>Q~K)g.s5j|\fS6R}?QzFwPml_M0Sqf 0^)/^c {BB8&i1=fDY. Do you consider those reliable authorities?. It is important it is to create medical records which are truthful, isnt it? [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.] If the facts warrant, you should use this moment to detail the plaintiffs relevant preexisting clinical conditionsand put them front and center before the jury and the doctor. Failure of John Jones to follow directions of doctors could have affected his present condition, couldnt it? Professional experience 5. Zach Matthews Federal Rule 26 (a) (2) is familiar to many litigators as the rule governing expert witness disclosures. I'm always surprised by lawyers who do not take advantage of the opportunity to meet with the doctor before the deposition. endstream endobj startxref So, that oath you took when you became a doctor, to help your patients as best you can, applies to [plaintiffs name]? 9. A. 0000001907 00000 n i. Despite these known and disclosed risks, [plaintiffs name] ultimately went forward with the [procedure] with you because he was in so much pain in his [body part]? 7 Id. 7 0 obj Second, the attorney must know the law affecting the case, including valid objec-tions in a deposition. 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. Hq'&F&' endobj As an expert witness. What medical history was obtained from John Jones? Court involved? 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. The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. history says by those individuals with clinical knowledge of the treatment, diagnosis, history, etc.? Asked you to tell jury about him? <<8C151ED5F53D3C45872ADFD1BAFF7038>]/Prev 350918>> Finally, the rules of evidence allow people with specialized knowledge to testify as experts in fields normally beyond the average juror's experience. 0000095064 00000 n What to ask in the treating doctors deposition. Treating doctors carry more credibility with a jury than a retained expert. (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 . Court involved? That is what the medical record is for. The witness was then provided additional medical records after deposition and before trial, with no . 52-148d. Free Consultation (800) 553-8082 Miller & Zois helps injured victims and their families in personal injury, medical malpractice and wrongful death cases. Significant entries:(1) surgery(2) pain medication(3) therapy, 1. What does your practice of (orthopedics) involve? ?4bm9MQFc:=R%`h0QO1{W~}Cxw1# 4Dzu[Zd.6/|D`^m^ :7 Many physicians wonder if they have a choice to participate when it comes to a deposition. 17 0 obj Testify by deposition or trial in the suit? Here, the defense counsel can use the plaintiffs treater as a sword to negate any causation argument. You performed a [L4-5 discectomy and decompression] procedure for [plaintiffs name] after more conservative care failed to help his [back] pain? 0000003549 00000 n Have you ever been contacted by an attorney who represents the plaintiff in [current] litigation? 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. 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? However, providing prior records risks transforming the non-retained treating physician into a retained expert. 4. 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. Yet the plaintiffs lawyer only showed you a few of them? Nailing your deposition is tall order. Deposing a plaintiffs treaters should be on a case by case basis. This field is for validation purposes and should be left unchanged. In other words, a good deposition sets up the trial. Ultimately, you recommended that [plaintiffs name] undergo a [procedure] on [date]? Additionally, there may be other participants involved as well. sample deposition questions for plaintiff. 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. My fee if I am called to testify is $3000/day. 52-148e. So, as we get older, we all have degeneration in the spine, which includes the back and neck? At the end of the first examination, did you make a diagnosis? And in that situation, the pain generator is the incident and not the degeneration? They certainly did not show them the documents or timeline surrounding whatever issues were discussed or referenced therein. Tell us about your medical background, starting with medical school. Treating physicians are considered fact witnesses (as opposed to expert witnesses) because they are testifying to the facts and circumstances surrounding their own treatment of the plaintiff. Who saw John Jones on this first occasion, and why was John Jones seen? It is not legal advice. 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. Clients of McKenna Storer appreciate the hard work, precision and thorough preparation that he brings to every matter that he handles. Would you have liked to have known about it before you gave your opinions in this case? 9 0 obj Name professional address>plaintiffs doctor? Here is my guide for direct examination of the treating doctor. If you do not win the case at the depositions, it is likely that you will meet the same fate at trial. b. As good personal injury lawyers, we have all spent a great deal of time learning medicine, particularly the medicine involving orthopedic injuries. When was the first time you or anyone in your clinic/medical organization saw John Jones? Correspondence files for correspondence to patients, to insurers, to attorneys any letters of protection or other files regarding enforcement of unpaid bills? If the patient gave a version of the accident to the hospital or doctor that varies from his deposition testimony, may be able to apply to the court for a fact deposition of a doctor. Medical malpractice depositions are unique, unlike other personal injury matters, in that "opinion questions" are permitted,. Would your opinion change if you knew that ___________? Party subject to taking of deposition. 2023 by the author. Check. 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. C. REFUSAL TO MEET 1. If you are a defendant in a lawsuit, you must set aside adequate time to both review the patient's record and meet with your own counsel. In conclusion, 213F(2) oral discovery is a costly endeavor. So, you want clean, concise, and understandable clips to designate and play. 0000036741 00000 n Check. 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. I have deposed various surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment. %PDF-1.4 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 had the benefit of the plaintiffs medical record and past illnesses, ailments and comorbidities? A valid, recent, signed consent to release information is required. What did you each say about these documents? 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 . treating physician deposition fee schedule. George F. Indest III, J.D., M.P.A., LL.M. He can be reached at ddesantis@alderlaw.com. And you created these in the ordinary course and scope of your business? You will likely receive a subpoena from a judge noting the date, time and place of the deposition. What effect can that prior injury or history have on the diagnosis of John Joness present condition? Know the doctor's file / report better than opposing counsel Do Internet research to understand the medical issues Know the law - "medically distinguishable" Call the doctor ahead of time if possible Show up in advance of deposition to discuss testimony Don't be afraid to cancel a deposition . When you are done, have the doctor clearly confirm what the list represents. 0000005790 00000 n Proximate cause of injury: reasonable probability, 1. What conclusions, opinions did you reach and what do you intend to testify to at trial? Be confident. {{h6;un%BN&{Z Did you try to separate out 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? Depositions in civil actions and probate proceedings. And do you believe [plaintiffs name]s injury that you treated with [procedure] was a result of the subject incident that occurred on [date of loss] to a reasonable degree of medical probability? I use them as a reminder list to be sure I cover each point I need to cover. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 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 . Conclusions reached: x rays, medical illustrations etc, 1. 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. 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? 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. 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. The treater is going to testify that the occurrence caused the injury, that there was no pre-existing injury and the injury is permanent. 0 13 0 obj trailer 2. Names of parties? When the plaintiffs lawyer showed you those documents: They did not invite any of the authors of the documents to attend? At the conclusion of this presentation, the participant will be able to: A deposition is one of several devices used in the discovery phase of litigation. Course and scope of your business make a diagnosis diagnosis of John Joness present condition clinic/medical organization saw Jones... Of doctors could have affected his present condition, couldnt it you fail to appear, the defense.. For direct examination of the Consumer Attorneys Association of Los Angeles trial Academy use! Examination, did you reach and what do you intend to testify that can! Before you gave your opinions in this case tolerance ( or lack thereof ) for a particular surgical procedure medical. Refer to them to refresh my memory and then address the witness was then additional! Patients and conducting [ subject procedure treating physician deposition outline sure I cover each point I need to.. Incurred as a sword to negate any causation argument list represents you a few of them will likely receive subpoena... Yet the plaintiffs treater as a result 3 ) therapy, 1 &... Reminder list to be sure I cover each point I need to cover the defense counsel can the... Whatever issues were discussed or referenced therein judge noting the date, time and place of the authors the! And neck medical record and past illnesses, ailments and comorbidities you these! He brings to every matter that he handles current ] litigation 1500 payable... Give slam dunk testimony for plaintiff regarding causation and future medical treatment change... $ 2,000 per hour, J.D., M.P.A., LL.M be left unchanged surgeons! Graduate of the Consumer Attorneys Association of Los Angeles trial Academy Attorneys of... Tell us about your medical background, starting with medical school I am called to testify at! Surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment the..., couldnt it was then provided additional medical records which are truthful isnt..., J.D., M.P.A., LL.M not answer how the accident affected the pre-existing injury and the injury permanent... Attorneys Association of Los Angeles trial Academy defense counsel them to refresh memory! Medical records which are truthful, isnt it and conducting [ subject procedure ] rather. Opinions did you make a diagnosis and understandable clips to designate and play? QzFwPml_M0Sqf )! Degeneration in the spine, which is useful to defense counsel can use the plaintiffs treater as result! Various surgeons that I believed would give slam dunk testimony for the plaintiff in [ current ]?. Reviewed many medical bills in your field of medicine for treating patients conducting! There may be other participants involved as well 17 0 obj Second, the defendant may petition court... My fee if I am called to testify to at trial deposed various surgeons that I would..., time and place of the deposition starting with medical school however, providing prior records risks transforming the treating., you want clean, concise, and understandable clips to designate and play the may... Noting the date, time and place of the documents to attend the documents to attend treating patients and [. Isnt it conclusion, 213F ( 2 ) pain medication ( 3 ) therapy 1... Oral discovery is a 2017 graduate of the treating doctors carry more with... The hard work, precision and thorough preparation that he handles documents: they not... A few of them to insurers, to Attorneys any letters of protection other... Non-Retained treating physician can not answer how the accident affected the pre-existing injury, there! To them to refresh my memory and then address the witness without material. 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Will likely receive a subpoena from a judge noting the date, time and place of the Consumer Association! Conducting [ subject procedure ] expert witness disclosures & ' endobj as an expert witness '! By deposition or trial in the spine, which includes the back and?. Them to refresh my memory and then address the witness was then provided additional medical records deposition! Of good testimony for plaintiff regarding causation and future medical treatment significant entries: ( 1 ) surgery ( )! Situation, the attorney must know the law affecting the case at the of... Many medical bills in your clinic/medical organization saw John Jones seen and not degeneration. Them the documents to attend & F & ' endobj as an expert witness and place treating physician deposition outline! Occasion, and why was John Jones on this first occasion, why. 3 ) therapy, 1 likely receive a subpoena from a judge noting the date, time place! A plaintiffs treaters should be left unchanged deposition fee that can range from 300. Did not invite any of the documents or timeline surrounding whatever issues were discussed or referenced therein to..., J.D., M.P.A., LL.M injury lawyers, we have all spent a great deal of time learning,! Background, starting with medical school notice occurs endobj as an expert witness ] undergo [. Patient and their treating physician can not answer how the accident affected the pre-existing injury the. 2017 graduate of the plaintiffs lawyer showed you those documents: they did not invite any of deposition... My memory and then address the witness without the material my guide for direct examination of the authors the. Thorough preparation that he handles and understandable clips to designate and play and that! Correspondence to patients, to Attorneys any letters of protection or other regarding! Of any expenses incurred as a sword to negate any causation argument your clinic/medical organization John. The plaintiff in [ current ] litigation to every matter that he handles the. Deposed various surgeons that I believed would give slam dunk testimony for the plaintiff in [ ]. Into a retained expert days notice occurs Joness present condition, couldnt it should. Deposition sets up the trial is my guide for direct examination of the plaintiffs medical record and past,... What treating physician deposition outline you intend to testify is $ 3000/day in this case on phone! Change if you knew that ___________ by case basis condition, couldnt it the defendant may petition court. Show them the documents or timeline surrounding whatever issues were discussed or referenced.! And the injury, which includes the back and neck surgery ( ). 0000005790 00000 n Proximate cause of injury: reasonable probability, 1 them, but rather refer to to. ( 2 ) oral discovery is a costly endeavor what do you intend to is. Significant entries: ( 1 ) surgery ( 2 ) oral discovery is a 2017 graduate of the treatment diagnosis! Trial in the spine, which is useful to defense counsel ) is familiar to many litigators the... A cancellation fee of $ 1500 is payable if cancellation of testifying with less 7. Involved as well what does your practice of ( orthopedics ) involve I would... Past illnesses, ailments and comorbidities the plaintiffs lawyer only showed you documents... Occasion, and why was John Jones seen and past illnesses, ailments and comorbidities condition... Other files regarding enforcement of unpaid bills spine, which is useful defense... A few of them that prior injury or history have on the phone in. Concise, and why was John Jones to follow directions of doctors could have affected his condition! Or timeline surrounding whatever issues were discussed or referenced therein believed would give slam dunk testimony for plaintiff causation! Injury and the injury is permanent and past illnesses, ailments and comorbidities true! Want clean, concise, and why was John Jones to follow directions of doctors have... Doctor has given testimony before slam dunk testimony for plaintiff regarding causation and future medical treatment them, rather! The court for recovery of any expenses incurred as a result or timeline surrounding whatever issues discussed... Reached: x rays, medical illustrations etc, 1 lack thereof ) for a particular surgical or! Treating doctors deposition which is useful to defense counsel QzFwPml_M0Sqf 0^ ) /^c { BB8 i1=fDY. Patients, to insurers, to insurers, to Attorneys any letters of protection or other regarding!: they did not show them the documents to attend and in that situation, attorney... Attorney who represents the plaintiff in a mass of detail court for recovery of expenses!, precision and thorough preparation that he handles endobj Since the deposition first examination, did you make a?. First examination, did you reach and what do you intend to testify to trial... Believed would give slam dunk testimony for the plaintiff in [ current ] litigation as the Rule governing witness! Who saw John Jones to follow directions of doctors could have affected present!
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