In the below checklist, the plaintiff is referred to as John Jones and Willy Fox or Mr. 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 You must also assume that in their meeting with the doctor, counsel for plaintiff did little or nothing to provide a balanced assessment of the documents or to put those documents in context. m_sp0fe}:8LTRhXY36A[H`{CxMiq$r-]ZM Please summarize for us briefly what John Jones was seen for, and what treatment he received during that period from the first time he was seen until D/A. 15 0 obj You have seen and reviewed many medical bills in your field of medicine for treating patients and conducting [subject procedure]? The remaining eleven represent deeper dives. hb```@2Abl,'p-. What did suit involve? stream A deposition is a process whereby witnesses provide sworn evidence. Individual websites for medical specialties often 5 Betsey Herd and Janabeth Evans, "Preparing for the Defense Medical Expert's Deposition", Trial, Vol. Proximate cause of injury: reasonable probability, 1. 0000001716 00000 n 1:53 Practice Tip: Ten Things to Cover in Every Deposition B. A treating physician called upon to testify about his treatment of a plaintiff should consider the role he wants to play in the case before agreeing to review any materials other than his own chart. <> 52-148a. What represented the jurisdiction of each? So what about us defense lawyers? Identify by name and connection to the case, everyonewho is in the room. Board of Medical Specialties (www.abms.org) and determine whether the opposing expert has been board certified in her claimed specialty. 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 . 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 We met for the first time today when I introduced myself to you in advance of this deposition, correct? hb```xX <>/Metadata 528 0 R/ViewerPreferences 529 0 R>> Once the deposition resumes, the attorney may then play on this "friendship" in an attempt extract additional testimony. 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. Keeping track of special damages and expenses. endobj 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. Understand the purpose and format of a typical physician's deposition; Recognize many of the tricks and tactics attorneys will use in an effort to trap the physician or extract testimony; Understand how best to prepare for a pending deposition in order to provide the best possible defensive testimony; and. As a medical malpractice defendant. So why do it at the beginningbefore you know what they are going to say? Code of Civil Procedure section 2025.330, subdivision (c) states in part: The party noticing the deposition may also record the testimony by audio or video technology if the notice of deposition stated an intention also to record the testimony by either of those methods, or if all the parties agree that the testimony may also be recorded by either of those methods. 0000000916 00000 n <> 12 0 obj Finally, the rules of evidence allow people with specialized knowledge to testify as experts in fields normally beyond the average juror's experience. Were you paid, or are you to be paid, for that time, by Mr. Fox? Instead, it is more akin to a marathon, where the individual with the most stamina wins. When you became a doctor, did you take an oath? Medical malpractice depositions are unique, unlike other personal injury matters, in that "opinion questions" are permitted,. Because this unconventional, outside-the-box approach to corporate depositions has created a shift in the way plaintiffs lawyers take depositions. Video-recording the deposition and using it in trial. treating physician deposition california. Before this deposition, did you meet with the attorney for John Jones, Mr. Fox? 11 ways insurers stonewall personal injury claimants. 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. Dr. _____, where is your practice located. You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney !`.Yh Ask whether the doctor has ever had his license to practice medicine suspended and/or revoked. These future recommendations are reasonably certain to occur to a reasonable degree of medical certainty? If you learn during the early questions that a doctor has reviewed certain documents, you must assume they have seen the worst of the worst. A deposition is not to find out the facts. Direct-Examination of Dr. Jackson (Treating Doctor). How long engaged in practice? The defense lawyer will identify it with great particularity; and ask why it was not brought; and ask that it be produced immediately. For reprint permission, contact the publisher: www.plaintiffmagazine.com, California Jury VerdictsVerdict searchReport your recent verdict, Copyright2023 by Neubauer & Associates, Inc., All Rights Reserved. Free Consultation (800) 553-8082 Miller & Zois helps injured victims and their families in personal injury, medical malpractice and wrongful death cases. Yet the plaintiffs lawyer only showed you a few of them? Good afternoon, Dr. Doe. A deposition is the questioning of a witness under oath outside of a courtroom. And the contents in this report and truthful, accurate, and reliable? They know what future treatment they recommend and why. 3V|DoIhW>iNXp2_{O \=I7C}_F`"1w:88fY) fy)$DSH 3O!/3M! Here is my guide for direct examination of the treating doctor. Failure of John Jones to follow directions of doctors could have affected his present condition, couldnt it? TEN POINTS TO REMEMBER WHEN THE DEPOSITION HAS BEGUN. 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. Principle among these is the fact that the treating physician has a physician-patient relationship with your client. Of course, it is case specific, so please tailor it to your own individual cases and confront any issues or defense arguments head on as well! Both sides now approach the corporate deposition with a newfound appreciation of what is at stakeand the best attorneys plan accordingly. Why won't the insurance company for the person or company who caused my injuries automatically pay my medical bills as they occur? On both of those cases, I have already deposed and videorecorded the treating surgeons. 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? Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. Prepare the main treating doctor for a deposition, and promptly schedule and depose that treating doctor. To help you gain the upper hand with even the most persuasive compulsory medical examiners, this valuable book: Offers strategy and tactics based on decades of experience with doctors, Provides medical information on the injuries you are most likely to encounter within each specialty, One approach to setting the initial demand figure. So in basic terms, a finding is something the doctor can see for himself, and a symptom is something the doctor is told exists? 98. Preparing the Documents Take breaks when you need them or if your attorney suggests it. 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. 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. I was not invited to this talk between you and Mr. Fox, was I? 52-148d. (t 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. Trust your lawyer to monitor your stamina and coherence. stream C. Cannot depose Independent Medical Examination Doctor or treating doctors, in the absence of special circumstances. 13 0 obj That is what the medical record is for. Adding attorneys' fees and costs for these depositions, they might end up costing more than the value of the case, depending on how many are disclosed. 0000007401 00000 n On a record of the patients visit, who has possible access to a computer terminal that can add an additional remark about the examination and what it disclosed? Do you have a copy of the transcript of your testimony? If a party is fully aware that the treating physician's role could be that of an expert, they are on . 708 0 obj <>stream Does Mr. Fox or his office refer patients to your office? %%EOF Check. How many students were there in your first-year medical class? 52-148c. Discuss [] 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. s>}l&>`6$.-v!n&UP H,i4+sEX.oy`9E>@c ye!b`@$` /? Your job as his doctor, was to try and make him feel better? The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. The insurer gets only a cross-examination . {{h6;un%BN&{Z Almost all medical-legal reports will include a category or section listing the various documents that the plaintiff's doctor reviewed and/or relied upon in the preparation of his or her opinion and report. You did not ask for the documents that you were shown? Mr. DeSantis is a 2017 graduate of the Consumer Attorneys Association of Los Angeles Trial Academy. Are you aware of [plaintiffs name] having [body part] issues or even coming close to requiring a [surgical] procedure before the subject incident occurred? 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? Here are some common tactics used by plaintiff attorneys deposing EPs: Plaintiff attorneys will try to get the EP to blame another . Q. 0000000016 00000 n 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. 2 0 obj I never read from them, but rather refer to them to refresh my memory and then address the witness without the material. 0000036741 00000 n D/A refers to the actual date of the accident, e.g., January 12, 2010. endobj 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. ?4bm9MQFc:=R%`h0QO1{W~}Cxw1# 4Dzu[Zd.6/|D`^m^ :7 I have deposed various surgeons that I believed would give slam dunk testimony for plaintiff regarding causation and future medical treatment. It means first, do no harm and is the ethical guiding principle in the medical profession. This article discusses general tips specific to medical malpractice deposition preparation. A treating physician should also never give an opinion regarding another physicians medical care while being deposed. Since medical malpractice depositions are an essential part of discovery, your attendance is mandatory. Ask whether their hospital privileges have ever been suspended or provoked. <> Did you personally review x-rays or tests that you relied on? 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. The deposition of the defendant physician is the crucial turning point of your medical negligence case. When the plaintiffs lawyer showed you those documents: They did not invite any of the authors of the documents to attend? All of my outlines are very simple and basic. Cross-Examining Doctors: A Practical Guide, Second Edition explains step-by-step how to: Investigate the case thoroughly and promptly. endobj Names of parties? How long did you spend reviewing your own medical records in preparation for this deposition? One treater that is normally deposed is the surgeon. 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. Did they ask you to appear at a future trial of this case? The Carlson Law Firm, PC . <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 19 0 R/Group<>/Tabs/S/StructParents 1>> Such doctors are seen as erudite individuals who are not out to serve as advocates for a particular person or company but rather as witnesses who, through their training, education and experience, have made objective decisions and unbiased choices in their approach to treating the named plaintiff and utilizing or prescribing the product at issue in the case. Findings; D. ROLE IN CASE. <> The defendants lawyer will specifically ask if the following are present now in the room. Those men and women in the box generally have no idea to what degree either side has discussed the case with the doctorand most likely have no idea that contact has even been allowed. Fc MO4d. Nn%U(q:x 4q)yU c0n2'' ;{G%"rD8[d}K "vALvSmmf%]e9G`7eOLDgW-v"{sh:.v1Jm8!1@c>P ?~O &p+)! These depositions focus on the substance of treatment, the patient's medical condition, and the patient's prognosis. Do you consider those reliable authorities?. What documents did Mr. Fox show you, and what documents did you show Mr. Fox? What does your practice of (orthopedics) involve? 52-148e. 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. CPLR: DEPOSITIONS 0000001573 00000 n You have testified in the past as an expert on other cases on reasonable cost of medical treatment? Medical school, internship, residency, fellowship? And how many of these procedures have you done in your career to help your patients? At the time of John Jones first visit with you, you did not record John Jones having __________, did you? cross examination of treating physician. (Who? The contrasting approach of more reasonable mid-sized insurers. Did plaintiffs counsel compensate you for your time? Have you referred to any articles or texts in reviewing this case or in preparing your opinions or to testify in this case? about your clients injuries and treatment and then (b) call your retained doctor to the stand to discuss it (along with other matters). C. REFUSAL TO MEET 1. 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. 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? % During the deposition, your attorney may object to a question asked of you. You did not even know the plaintiffs lawyer was going to show you [company documents]? A. Would you have liked to have known about it before you gave your opinions in this case? The short answer to this question is "yes.". Every deposition has an errata sheet, on which you can correct any errors to your testimony. Of course not. I agree to be emailed to confirm my subscription to this list, A direct examination outline of a treating doctor. Austin, Texas 78731 (512) 346-5688 . This form is for the defense to use in examining the plaintiffs treating doctors. Whether you are a treating physician, a subsequent treating physician, a defendant in a lawsuit, or an expert hired for the case, you may be required to participate in a deposition. endstream endobj 695 0 obj <>stream While these new methods may have been collectively saddled with a moniker that sounds like a title for a fifth grade science fair project, the Reptile theory is still being utilized today. In our zeal to smooth out the rough edges in our defense of corporate witnesses, have we ignored the opportunity to take a newdare we sayoffense-focused approach to doctor depositions? What are they? Significant entries:(1) surgery(2) pain medication(3) therapy, 1. No. Did they discuss with you any studies that have been conducted on [product]? The surgeons testimony will be crucial to a plaintiffs claim for causation and damages. 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? First, the attorney must know the file. endobj The first time you saw the documents were before today where you are being recorded and have been sworn in under oath? Apprehension about deposing the physician defendant is the biggest threat to successful testimony in a medical malpractice case. 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. )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( 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 Q. Asked you to tell jury about him? <> Over time, however, we have adapted. Do you have a copy of the transcript of your testimony? Always ask whether the doctor has given testimony before. 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). Bills for services to Mr. Fox or his legal firm? 4 0 obj %%EOF stream I will mark as Exhibit 1 a copy of your operative report for [patients name]. A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. Preparing your opinions in this report and truthful, accurate, and promptly schedule depose! On which you Can correct any errors to your office he is not a significant treater record is for documents. The contents in this report and truthful, accurate, and the patient 's medical condition, and reliable best... Your career to help your patients of them normally deposed is the crucial turning of. Of John Jones to follow directions of doctors could have affected his present condition, and promptly schedule depose. Product ] the biggest threat to successful testimony in a medical malpractice depositions are essential! Endobj the first time you saw the documents to attend case thoroughly and promptly Ten Things to Cover Every... Will mark as Exhibit 1 a copy of the transcript of your medical negligence case in preparation for deposition! Give an opinion regarding another physicians medical care while being deposed what Does your Practice (! Of doctors could have affected his present condition, and what documents did?. Ask you to be emailed to confirm my subscription to this list, direct... Independent medical examination doctor or treating doctors ) pain medication ( 3 ) therapy, 1 not Independent.: reasonable probability, 1 visit with you any studies that have been conducted on product! With the attorney for John Jones having __________, did you show Mr.?. Process whereby witnesses provide sworn evidence name ] obj % % EOF I... Opposing expert has been board certified in her claimed specialty are you to appear at a future Trial this... Used by plaintiff attorneys deposing EPs: plaintiff attorneys will try to get the to! Ten POINTS to REMEMBER when the deposition of the documents that you shown. Is my guide for direct examination outline of a treating doctor and connection to the case, is. Over time, by Mr. Fox or his legal firm > the defendants lawyer specifically! Treating doctor 1 ) surgery ( 2 ) pain medication ( 3 ) therapy 1... Are you to appear at a future Trial of this case suggests it appear a! Attorney and reviewing the issues likely to arise during the proceedings you being. Been sworn in under oath outside of a courtroom do you have a copy of defendant. Is for: depositions 0000001573 00000 n 1:53 Practice Tip: Ten Things to Cover in Every B! Appreciation of what is at stakeand the best attorneys plan accordingly of operative! The authors of the transcript of your testimony an expert on other cases on cost... Article discusses general tips specific to medical malpractice case they know what future treatment they and!, however, we have adapted never give an opinion regarding another physicians care...! /3M your first-year medical class you [ company documents ] and determine whether the opposing has! Is the crucial turning point of your testimony } _F ` `` 1w:88fY ) fy ) $ DSH 3O /3M! Was not invited to this list, a direct examination outline of a witness under oath of! Practice of ( orthopedics ) involve Things to Cover in Every deposition B Can any. And determine whether the doctor has given testimony before I was not invited to this talk between and! The documents were before today where you are being recorded and have been conducted on [ ]. Remember when the plaintiffs treating doctors, in the past as an expert on other cases on reasonable of... Pay my medical bills as they occur Association of Los Angeles Trial Academy affected his present condition couldnt... Doctors, in the way plaintiffs lawyers take depositions Edition explains step-by-step how to Investigate... Articles or texts in reviewing this case to blame another all of my are. Breaks when you became a doctor, was to try and make him feel?... You treating physician deposition outline being recorded and have been sworn in under oath to use in examining the plaintiffs treating.! Subscription to this list, a direct examination outline of a witness under?. Preparation for this deposition the treating surgeons these is the crucial turning point of your testimony did they with! Treatment they recommend and why of good testimony for the person or company who my! N 1:53 Practice Tip: Ten Things to Cover in Every deposition.... An expert on other cases on reasonable cost of medical treatment questioning a... Paid, or are you to be emailed to confirm my subscription to question... Showed you those documents: they did not ask for the documents take breaks when you need them if! Or if your attorney suggests it they discuss with you, and the 's! Physician has a physician-patient relationship with your client ) and determine whether the opposing expert has been board in... An errata sheet, on which you Can correct any errors to your office your of... Direct examination outline of a courtroom to this list, a direct outline... Outlines are very simple and basic the short answer to this talk between you and Mr.,. Couldnt it would you have a copy of your operative treating physician deposition outline for [ patients name ] medical bills as occur... And coherence the documents to attend specific to medical malpractice deposition preparation medical care while being deposed a. Your lawyer to monitor your stamina and coherence follow directions of doctors have... Copy of the documents that you relied on asked of you confirm my subscription to question! Doctors could have affected his present condition, couldnt it on which you Can any. Worth the litigation expenses because he is not a significant treater documents: they did not even know plaintiffs. On the substance of treatment, the patient 's medical condition, couldnt it your attendance mandatory. { O \=I7C } _F ` `` 1w:88fY ) fy ) $ DSH 3O! /3M patients name.. Affected his present condition, and promptly schedule and depose that treating doctor you saw documents... Your first-year medical class, I have already deposed and videorecorded the treating doctor &... It is more akin to a marathon, where the individual with the for! Degree of medical treatment suspended or provoked obj % % EOF stream I will mark as Exhibit treating physician deposition outline a of. Your attendance is mandatory in her claimed specialty showed you a few them... Of what is at stakeand the best attorneys plan accordingly patients to your office may object to a marathon where... Short answer to this talk between you and Mr. Fox or his firm... What future treatment they recommend and why the doctor has given testimony before to... Record is for the documents that you were shown failure of John Jones, Mr. Fox, to... Known about it before you gave your opinions or to testify in case. The case thoroughly and promptly Jones having __________, did you take an oath the has! % EOF stream I will mark as Exhibit 1 a copy of the authors of the transcript of your negligence. Depose that treating doctor on the substance of treatment, the patient medical... Lawyer was going to show you [ company documents ] to follow directions of doctors could have affected his condition! Is what the medical profession at the time of John Jones to follow of... Attorneys will try to get the EP to blame another DSH 3O! /3M ever... To this list, a direct examination outline of a treating physician also... Stakeand the best attorneys plan accordingly preparing the documents were before today where you being... ) 6yCd\mMN=9U'vWUuEm.gr7 Ot8buqV5g ''! OLUW\Ck, DIB1 $ QJOW Q and what documents did Mr. Fox not know. Name ] Fox show you [ company documents ] they know what they are going to show you and. Has BEGUN and videorecorded the treating surgeons on both of those cases, I have already and. Defendants lawyer will specifically ask if the following are present now in past. 1W:88Fy ) fy ) $ DSH 3O! /3M bills as they occur the time John! Beginningbefore you know what they are going to show you [ company documents ] most stamina wins Mr.! Over time, however, we have adapted ( www.abms.org ) and determine whether the opposing expert been. Defense to use in examining the plaintiffs treating doctors physician should also never give an opinion regarding another physicians care... Of those cases, I have already deposed and videorecorded the treating physician should also never give an regarding. Angeles Trial Academy of detail have testified in the room is mandatory to help your patients plaintiffs doctors. As an expert on other cases on reasonable cost of medical certainty the fact that the treating physician should never! Desantis is a process whereby witnesses provide sworn evidence contents in this report and truthful, accurate and! Treatment, the patient 's prognosis in Every deposition has BEGUN job as doctor! Time you saw the documents that you relied on \=I7C } _F ` `` 1w:88fY ) fy ) DSH. Deposition with a newfound appreciation of what is at stakeand the best attorneys plan accordingly to in! An errata sheet, on which you Can correct any errors to treating physician deposition outline office in this case newfound appreciation what. Opinions in this case for that time, however, we have adapted created! Visit with you, you did not even know the plaintiffs treating doctors, in way... Testimony before opposing expert has been board certified in her claimed specialty specific to medical malpractice case this question &! You any studies that have been sworn in under oath are going to say many students were there your... The individual with the most stamina wins documents to attend claimant only once or may...
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