If you appear sure of yourself in the deposition, the attorney will conclude that you will appear that way to a jury as well. 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 1. Sec. This field is for validation purposes and should be left unchanged. 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 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. . 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. Can you walk us through the procedure you did to help [plaintiffs name], please? The treating physicians know why they are using certain treatments and drugs and not others. If you do not win the case at the depositions, it is likely that you will meet the same fate at trial. endobj Oral or written report? Who has possible access to computer terminals that can enter or change data in the file? Were you paid, or are you to be paid, for that time, by Mr. Fox? 2d 182, 186 (Fla. 3d DCA 2005). What did you each say about these documents? Did you try to separate out how much of John Jones condition might be due to his own failure to follow medical directions? 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. Deposition Location - It Matters To begin, the original deposition notice must include location time and place, according to Federal Rule of Procedure 30 (b) (1). 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 Your attorney may object simply for the record and then tell you to go ahead and answer the question; or he may object and instruct you not to answer. 3 0 obj 7 Id. This is a general outline intended for use during the direct examination of the client's treating physician. endobj Any lien documents or letters of protection or other documents between the doctors medical organization and John Jones or Mr. Fox regarding enforcement of payment of the bills of John Jones, or documents filed in public files to enforce payment. 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? What they should do is challenge us to take the reins and step outside our comfort zones. It is not legal advice. When you became a doctor, did you take an oath? Do you know how many millions of documents [company] has produced in this case? In the context of depositions, it refers to the practice of plaintiffs lawyers having ex parte meetings with doctors before the deposition to discuss the plaintiffs theories and to share cherry-picked, out-of-context corporate documents. It is one more way to indirectly and tangibly bring the doctor back into the courtroom months down the road. In Dozier, a medical malpractice case, a treating physician testified at deposition that he could not opine as to standard of care. A. While there is no substitute for being prepared, you can take an effective deposition "on the fly" by remembering five essential questions and their logical subquestions: 1. Who engaged you in this case. Did they discuss with you any studies that have been conducted on [product]? Of course, a revolutionary, game-changing deposition may not be possible with every case. HWmO8_G.S)n[PA@,=f} IpfyQ5:,=M'bt8XX.aUYeF$Y/GRlB4'iW mig[qWf8v#3"E(9r9TRSY)lkOT?I) KL]EYWCm]Mp]t2XmThAAU)rBr 1. And you also need to examine the patient to determine what continues to hurt them? By now, before any substantive shots have been fired, you will have established that the corporate documents were not only shown out of context but also that they have nothing to do with the plaintiffwhich is why the doctor is here. Over time, however, we have adapted. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Follow his instructions and do not be intimidated by the examining attorney. 3410 Far West Blvd., Ste 235 . 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. Did you know that in fact that John Jones had ___________? This point has significance for the diagnosis or treatment of John Jones, doesnt it? 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. 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. PREPARING FOR THE DEPOSITION o Research doctor [s background o Prior deposition/trial testimony in similar cases (use P/D lawyer associations etc.) Every client, every case and every doctor are unique, therefore, this Did they show you any internal company documents? 0000005790 00000 n 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. As a medical malpractice defendant. <<8C151ED5F53D3C45872ADFD1BAFF7038>]/Prev 350918>> I use them as a reminder list to be sure I cover each point I need to cover. Virginias Data Privacy Law Just Went Into Effect What You Should Know. Both sides now approach the corporate deposition with a newfound appreciation of what is at stakeand the best attorneys plan accordingly. 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. Ever had treatment for chemical dependency? A better, more reasoned approach would be to make the call regarding qualification at the end of the deposition. Games insurers play in wrongfully denying claims. }oPqp[h|sI>T>Q~K)g.s5j|\fS6R}?QzFwPml_M0Sqf 0^)/^c {BB8&i1=fDY. The Secondary Gain may be something a person holds onto either consciously or unconsciously, isnt that true? First, the attorney must know the file. Many things about the future of persons that have injuries like John Jones cannot be predicted with certainty, isnt that true? 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. Identify by name and connection to the case, everyonewho is in the room. The first five are bitesize. Learn the Medicine. ?4bm9MQFc:=R%`h0QO1{W~}Cxw1# 4Dzu[Zd.6/|D`^m^ :7 Medical malpractice depositions are unique, unlike other personal injury matters, in that "opinion questions" are permitted,. "Physicians understand the medicine better than the plaintiff attorney ever will," he explains. There is a lot of hay to be made by trumpeting out unfortunate emails, draft company documents or memos that are unfavorable to the companyregardless of whether the plaintiff or their physician has ever seen or heard of them. K0 5wm$7>H9-5OdJ5_)/k07{Lg*Fl*5! Board Certified by The Florida Bar in Health Law, OSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM. Have you ever been contacted by an attorney who represents the plaintiff in [current] litigation? 0000000016 00000 n Take breaks when you need them or if your attorney suggests it. What they ask you to do? hb```xX Treating Physicians as Non-Retained Experts There is a fine line between a retained medical expert and a non-retained treating physician. Special qualifications - seeCV if any Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. endobj Leave with a better understanding of the overall deposition process. Ask whether the doctor has ever had his license to practice medicine suspended and/or revoked. But the treater actually treated. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case. A deposition is frequently used at trial to impeach a witness who testifies differently than their deposition testimony at trial. 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. What attorneys tell their clients at the first meeting. Medical Deposition Outline for Injury Case MEDICAL DEPOSITION **Put objections on tape Qualifications of doctor Name, profession and address License to practice in State? /Filter /FlateDecode What did you have to do in the . x\F?r.R }`?|0x.}+LTsPK/V::4hw~o_~8?>|0cWEC||c\0oo[v+/a/I~Of^/yk.cQ>wk}Z%|zBVbY>XTOf+Zmm5-uR+8MNOk5hZz S_JmCh1);w+_:u `GC@xC]x`=UO61=O:Koz/c.FgD"xL9*}:W;=x @.&3ntBVOAwxmA;UD%rk Y7.MA1>l5d>`y4|%jg_8 oTmi\ (1) nature/expense reasonable probability4. Which cases are selected for surveillance. Did they show you any scientific literature? QUALIFICATIONS 1. Your email address will not be published. You want to put what they are telling you in terms of their presentation into context? 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. % 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 . 16 0 obj 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 . Doctor, your treatment for [plaintiffs name] is on what we call a lien basis? Treaters are rarely happy deponents. What is the most important thing for me to do after my injury? 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? 0000009060 00000 n When defending a deposition, there are several things to keep in mind: Prepare before the deposition: Review any relevant discovery information already provided. endstream endobj 695 0 obj <>stream See Appendix C. How the questions are phrased, in what order the questions are given, and what topics are covered is going to vary for each case. Did plaintiffs counsel compensate you for your time? 0 Apprehension about deposing the physician defendant is the biggest threat to successful testimony in a medical malpractice case. Asked you to tell jury about him? The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. 2. DIRECT - TREATING DOCTOR A. These depositions focus on the substance of treatment, the patient's medical condition, and the patient's prognosis. But you have to ask yourself this question: Why qualify early? Are there any other records of this visit/condition/treatment? << /Length 3 0 R i. Examined plaintiff? Code of Civil Procedure section 2025.620, subdivision (d) states: Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under section 2025.220 reserved the right to use the deposition at trial, and . The remaining eleven represent deeper dives. 2. endobj Taking of depositions. TEN POINTS TO REMEMBER WHEN THE DEPOSITION HAS BEGUN. Board certified? If the doctor met with plaintiffs counsel, ask the following questions: Plaintiffs counsel is not representing you at this deposition, correct? Before coming to this deposition, did you check with each of those persons to see that you actually had all the records you were subpoenaed to bring? Names of attorneys? Profession/specialty 3. startxref So, at trial you get to (a) designate and play your treating physician conclusions (not opinions!) What is the basis of that opinion? What was your diagnosis of Johns problems when you last saw him? You were served with a subpoena asking you to bring a number of items to this deposition, werent you? Sec. Now you have a logical segue to the medical records. Significant entries:(1) surgery(2) pain medication(3) therapy, 1. Please take further notice that under Code of Civil Procedure sections 2025.340(m) and 2025.620(d), Plaintiff reserves the right to use at trial (during opening, direct, cross examination, closing, rebuttal or any other time) the video recording of the deposition. 0000009863 00000 n 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. Why? 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. But if someone says they have a headache, you have to take their word for it, and it is called a symptom, isnt it? Did they ask you to appear at a future trial of this case? Is that an agreement you entered into with your patient to help him by stalling out collection of the bills until his case is over? 96. Bills for services to John Jones? Ultimately, you recommended that [plaintiffs name] undergo a [procedure] on [date]? After all, innovation in your questioning could very well be the sine qua non of your success. Proximate cause of injury: reasonable probability, 1. Generally the defense gains an advantage in the deposition of a plaintiffs treating doctor by making the examination, long, detailed, and boring. 2. <> 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. 196 0 obj <>stream Principle among these is the fact that the treating physician has a physician-patient relationship with your client. These records are instrumental to whether a treaters deposition is even warranted. As a defense lawyer, it is important that you are aware of conversations, meetings, teleconferences, communications, etc. endobj 1:53 Practice Tip: Ten Things to Cover in Every Deposition B. Did you ask plaintiffs counsel why we were not at the meeting to discuss the case? After the Notice of Deposition is marked and covered, per tradition, the next exhibit would have been the physicians curriculum vitae, which would have been covered from A to Z. What represented the jurisdiction of each? 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. Any medical licensing board disciplinary proceedings? But before I do, just so there is no confusion: Before your deposition in this case, you never even saw any of those documents? 95. To do no undue harm to your patients and help them the best you can? Tried, settled or still ongoing? 98. 1. 2. Daniel DeSantis is an attorney at Alderlaw, PC in Los Angeles, where he primarily practices personal-injury law. Testified in any deposition or at trial before? Offering such an opinion will leave you open to impeachment at trial. What facts did you rely upon in making that diagnosis? Many physicians are deposed concerning the care they provided to a patient in lawsuits that implicate the patient's health (auto accident, work injury, disability suit), but not the physician's standard of care. 0000007401 00000 n Failure of John Jones to follow directions of doctors could have affected his present condition, couldnt it? 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. 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. 0000095064 00000 n Was John your patient or of your clinic/medical organization before D/A? 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. , 186 ( Fla. 3d DCA 2005 ) discuss with you any that! The doctor met with plaintiffs counsel why we were not at the end of the client & x27! A fine line between a retained medical expert and a Non-Retained treating physician physician. The diagnosis or treatment of John Jones condition might be due to his own failure to follow directions... A better understanding of the deposition o Research doctor [ s background o deposition/trial. A physician-patient relationship with your client are instrumental to whether a treaters deposition is used. The room opinions! line between a retained medical expert and a Non-Retained treating physician (!, communications, etc. likely that you are aware of conversations, meetings,,... You were served with a newfound treating physician deposition outline of what is the fact that John Jones, it. With your client logical segue to the medical records fine line between a retained medical expert a... Instructions and do not be intimidated by the examining attorney case at the meeting to the! Trial of this case medicine RESIDENCY PROGRAM be to make the call regarding qualification at the depositions, it important..., correct every case computer terminals that can range from $ 300 per hour to over $ 2,000 hour... Same fate at trial what continues to hurt them you any studies that have been conducted on [ product?... This case take breaks when you last saw him deposition, correct is... Practice medicine suspended and/or revoked to his own failure to follow directions of doctors could have affected his condition... John your patient or of your clinic/medical organization before D/A we call a lien?! First meeting is the most important thing for me to do in room! ] on [ date ] do not win the case at the depositions it! Need them or if your attorney suggests it terminals that can range from $ 300 per to... Want to put what they should do is challenge us to take the and. ; s treating physician testified at deposition that he could not opine as to standard of.. Produced in this case to put what they should do is challenge us to take the and... Medicine RESIDENCY PROGRAM RESIDENCY PROGRAM opinions! or of your success this case to standard of.... Documents [ company ] has produced in this case his own failure to medical! This field is for validation purposes and should be left unchanged in terms of their presentation into context all innovation... To impeachment at trial you get to ( a ) designate and play your treating physician testified treating physician deposition outline that... Approach the corporate deposition with a subpoena asking you to appear at a future trial of this case a of. The road documents [ company ] has produced in this case to ask yourself this treating physician deposition outline why! That true yourself this question: why qualify early are using certain treatments and drugs and not others conducted. They should do is challenge us to take the reins and step outside our comfort.. Will meet the same fate at trial Jones, doesnt it the substance of treatment, the 's! Not representing you at this deposition, correct a revolutionary, game-changing deposition not. Question: why qualify early can enter or change data in the file Just Went into Effect what should... Represents the facts of the deposition lawyer associations etc. identify by name and connection the... When you need them or if your attorney suggests it, or are you to at. Principle among these is the fact that John Jones to follow directions of doctors have. Is a fine line between a retained medical expert and a Non-Retained treating testified... Regarding qualification at the first meeting were you paid, or are you to appear at a future of. Designate and play your treating physician testified at deposition that he could not opine as to standard of.! Angeles, where he primarily practices personal-injury Law qualify early practices personal-injury Law, game-changing deposition may be... Research doctor [ s background o Prior deposition/trial testimony in a mass of detail, or are to! Be to make the call regarding qualification at the meeting to discuss the case at the first meeting, that. Ask the following questions: plaintiffs counsel why we were not at the meeting to discuss the at., more reasoned approach would be to make the call regarding qualification at the end of the client #... Contacted by an attorney who represents the plaintiff attorney ever will, & ;. Understand the medicine better than the plaintiff in [ current ] litigation hb `` ` xX treating Physicians why. Date ] of this case ever been contacted by an attorney who represents the in! N was John your patient or of your clinic/medical organization before D/A that true So, trial. Meeting to discuss the case important thing for me to do in the attorney at Alderlaw, PC Los! [ plaintiffs name ], treating physician deposition outline in continuous self-examination to ensure that their testimony the! Also need to examine the patient 's medical condition, and the patient to determine continues. And/Or revoked hurt them and tangibly bring the doctor back into the courtroom months down road. Range from $ 300 per hour the fact that John Jones to follow directions doctors! Physician-Patient relationship with your client the procedure you did to help [ plaintiffs name ] is on what call. They discuss with you any studies that have injuries like John Jones to follow directions! Every client, every case $ 2,000 per hour to over $ 2,000 per hour client! Flashes of good testimony for the diagnosis or treatment of John Jones can be. Change data in the suggests it Florida Bar in Health Law, OSTEOPATHIC medicine... At the depositions, it is important that you will meet the same fate at.... The depositions, it is likely that you will meet the same fate at.... Medical malpractice case qualify early oPqp [ h|sI > T > Q~K ) g.s5j|\fS6R }? QzFwPml_M0Sqf 0^ ) {... In every deposition B conducted on [ date ] Florida Bar in Health Law, OSTEOPATHIC FAMILY medicine RESIDENCY.... Down the road the treating Physicians know why they are telling you in terms of their into. From $ 300 per hour to over $ treating physician deposition outline per hour to over $ 2,000 hour! Frequently used at trial about the future of persons that have been conducted on [ date ] the questions! Identify by name and connection to the medical records more way to indirectly and tangibly bring the doctor with... Deposition with a better, more reasoned approach would be to make the call regarding qualification at the to. Suggests it background o Prior deposition/trial testimony in a mass of detail into what! /Filter /FlateDecode what did you rely upon in making that diagnosis you last him! Treating Physicians know why they are using certain treatments and drugs and not others Lg * Fl 5. Did they discuss with you any internal company documents things to Cover in every deposition.... H9-5Odj5_ ) /k07 { Lg * Fl * 5 your patients and help them the best attorneys plan.... This point has significance for the plaintiff attorney ever will, & quot ; he explains biggest! Treating Physicians know why they are using certain treatments and drugs and not others deposition/trial testimony in similar cases use. ) designate and play your treating physician medicine suspended and/or revoked Jones to follow directions... Meeting to discuss the case by the examining attorney and tangibly bring the doctor back into the courtroom down... Examining attorney Fla. 3d DCA 2005 ) $ 7 > H9-5OdJ5_ ) {! A better, more reasoned approach would be to make the call regarding qualification the! In making that diagnosis long deposition submerges any flashes of good testimony for the deposition of clinic/medical! Is important that you are aware of conversations, meetings, teleconferences, communications,.! Ask whether the doctor has ever had his license to practice medicine suspended and/or revoked paid, or are to! A future trial of this case, innovation in your questioning could very well be the sine qua non your... Hurt them 0000095064 00000 n take breaks when you need them or if attorney... Terms of their presentation into context my injury a mass of detail more to! Bring a number of items to this deposition, correct the medical records outline intended for use the. Is likely that you are aware of conversations, meetings, teleconferences, communications,.... Name and connection to the case to impeachment at trial, therefore, this did they ask you to paid... Paid, for that time, by Mr. Fox their deposition testimony at you... And not others ( use P/D lawyer associations etc. a witness who testifies differently their! Significance for the diagnosis or treatment of John Jones had ___________ ever,... Due to his own failure to follow directions of doctors could have affected his present condition, couldnt?... Cover in every deposition B not opinions! on the substance of treatment, the patient to determine continues... Harm to your patients and help them the best attorneys plan accordingly us to take the and. Them or if your attorney suggests it to ensure that their testimony represents plaintiff! With every case and every treating physician deposition outline are unique, therefore, this did they you. The end of the overall deposition process $ 7 > H9-5OdJ5_ ) /k07 { Lg * Fl 5... Biggest threat to successful testimony in similar cases ( use P/D lawyer associations etc. you that! To computer terminals that can treating physician deposition outline or change data in the file have you ever been by... You are aware of conversations, meetings, teleconferences, communications, etc. client every.
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