If the treaters records are detailed with complaints, recommendations and causation, then deposing that treater just to read back his records is not useful. Take breaks when you need them or if your attorney suggests it. 1. Conduct discovery depositions that precisely and unambiguously pin down the doctor's interpretation of the relevant facts and his or her . ,:o+Ll#esN` For reprint permission, contact the publisher: www.plaintiffmagazine.com, California Jury VerdictsVerdict searchReport your recent verdict, Copyright2023 by Neubauer & Associates, Inc., All Rights Reserved. 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 0 b. Depositions of key witnesses; c. Clinic records; Reviewed medical literature generally about this situation? Privileges in hospitals in the area? Check. What did it accomplish? 0 9. 13 tips to help you understand insurers with different settlement approaches. 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). Significant entries:(1) surgery(2) pain medication(3) therapy, 1. Doctor, do you have an opinion of whether Mr. (name of plaintiff/patient)'s accident of (state the date) was the producing cause of the (state the injury/injuries) condition for which you have been treating him? Where do the bills stand right now for everything for [plaintiffs name] your care, the [procedure], the surgery center? Who saw John Jones on this first occasion, and why was John Jones seen? 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. Why video-record your clients treating doctors deposition. That being the case, for you to fully understand that document and be educated on itlike a medical recordwould you need a proper and thorough history of that document? endobj %PDF-1.4 % You wouldnt want to guess about those things, would you? endobj A cancellation fee of $1500 is payable if cancellation of testifying with less than 7 days notice occurs. 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 Ask whether it was an an expert for plaintiff or defendant ii. What did you do? These records are instrumental to whether a treaters deposition is even warranted. Did the deponent bring an electronic copy of the file also? This is an adversarial process, in which the patient's attorney will attempt to demonstrate that the physician's negligence injured the patient. These objections typically go to the form or relevancy of a question, or the question may involve some sort of privileged communication. Education (1) board certification/significance 4. The James T. Allan Award is an award given to a first-year medical student for outstanding achievement in research. What was content of report?). 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. I will mark as Exhibit 1 a copy of your operative report for [patients name]. 708 0 obj <>stream M2DH) ,B;02ZMz5)Ro" FTK 8TR-N>5jdHYLJ_#ioS~tofc:&Kltv74 What did you discuss with plaintiffs counsel? Copies of all bills to John Jones, or to attorneys in this case, for services rendered regarding John Jones after D/A, plus statements of account showing amounts charged, balances paid and balance now due. Was the treatment you gave John Jones successful? And you also need to examine the patient to determine what continues to hurt them? 22 lowballing techniques used by unscrupulous insurance adjusters. April 9, 2022 /; Posted By : / sm furniture baguio city /; Under : animal crossing: new horizons amiibo figuresanimal crossing: new horizons amiibo figures What is your understanding of why the attorney contacted you? At the end of the first examination, did you make a diagnosis? Know what the doctor . <> 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 . )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( Attorney's checklist for evaluating cases. 14 0 obj 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. 52-148d. The defense attorney will identify on the records all exhibits that doctor has brought. 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? Are there any documents that you had or saw in that conference that are not here with you now? What is your occupation? Medical training Specialties Member of Medical Societies Member of Hospital Staffs Boards Authorships 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? 2. Dr. _____, where is your practice located. 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. A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. New Jersey Personal Injury Attorneys | Serving Monmouth County, Ocean County, and Middlesex County. Dan Christensen . The deposing attorney may invite assistants, including consulting physicians, nurses, or paralegals to help them in analyzing the testimony and framing questions. 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. 1. Principle among these is the fact that the treating physician has a physician-patient relationship with your client. 13 0 obj direct examination of treating physician. Doctor, what is that opinion? Were there any consultations with other doctors? 0000009863 00000 n Unlike the company records, you have an educated background as to the medical records and documents for [plaintiff]? Special qualifications seeCV if any1) publications/honors/societies, B. Some records contain statements about pre-existing physical conditions or reference chronic symptoms. 166 0 obj <> endobj 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. i. Good afternoon, Dr. Doe. 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)? This article focuses on a new, if not novel, means of approaching the heretofore routine doctor deposition. Checklist of items to maintain and bring in. What physical examination was made and what were the findings? Read his full bio here: Alexander Sweis Full Bio, defense attorney will have all of the records, settlement and to save on the litigation costs. If they are numerous, authenticate and mark each individual medical record that identifies a history of infarctions, diabetes, smoking, noncompliance, etc. CPLR: DEPOSITIONS DEPOSITION FEE SCHEDULE/ MEDICAL FEE SCHEDULE 9080 Post RD Suite 200 Las Vegas, NV 89148 (702) 739-4263 Phone (877) 739-3590 Fax DEPOSITIONS-: 99075 $1,100/HR (If travel is needed cost may vary) REVIEW OF MEDICAL RECORDS- 99199 $275 per 15 min incr. George F. Indest III, J.D., M.P.A., LL.M. %PDF-1.5 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. Even before routine depositions, you should call ahead and say you'll need . What they ask you to do? 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. 0000010167 00000 n 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. This analysis can be seen in most soft tissue cases. Can you tell the jury about your educational background? The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. <> Before whom depositions may be taken. Meet the treating doctor before the direct examination. 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. Jurors often perceive the providers as neutral players in the game, unsullied by expert fees and untethered to long histories of associating with law firms or litigation. If the case value warrants treater depositions, then the next step is to review those treaters records to ascertain if any favorable testimony is anticipated. Tried, settled or still ongoing? Did they discuss with you any studies that have been conducted on [product]? Free Consultation (800) 553-8082 Miller & Zois helps injured victims and their families in personal injury, medical malpractice and wrongful death cases. An experienced attorney will continue a deposition for as long as possible, without interruption, in an effort to fatigue the witness. What documents did Mr. Fox show you, and what documents did you show Mr. Fox? If a physician thinks a certain medication caused an adverse outcome for a patient, then they would certainly chart it so that future treaters would have the benefit of that knowledge and steer the patient away from such therapies in the future. We would all agree that such a result est bonum. Special qualifications - seeCV if any 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. 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 . After all, innovation in your questioning could very well be the sine qua non of your success. The use of depositions at trial, particularly videotaped ones, has become increasingly common. 691 0 obj <> endobj What are they? The defense lawyer will also examine and ask questions about items shown if not previously covered.]. Party subject to taking of deposition. As to each of the above classes of documents, after marking the exhibit, the defendants lawyer will ask if it is a printout of an item maintained as an electronic data file. Do you have a copy of the transcript of your testimony? In the below checklist, the plaintiff is referred to as John Jones and Willy Fox or Mr. A. 12 0 obj 17 0 obj However, providing prior records risks transforming the non-retained treating physician into a retained expert. 9 0 obj Is that a reasonable cost based on your training and experience to a reasonable degree of medical probability? Maryland Personal Injury Lawyers. 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. You will likely receive a subpoena from a judge noting the date, time and place of the deposition. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. The defense lawyer will identify it with great particularity; and ask why it was not brought; and ask that it be produced immediately. The purpose of going through this exercise is twofold. When did you (including anyone in your clinic/medical organization) first examine John Jones after the accident of D/A? Gives you a low-cost way to put together your deposition outline questions. hbbd``b`$[AO 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. The treating physicians know why they are using certain treatments and drugs and not others. . 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. Why? {{h6;un%BN&{Z Future conditions or impairments. Below is a general outline that I use. All files and records of the doctor and his clinic or medical organization regarding John Jones. And that number does not include the surgery center cost? How many students were there in your first-year medical class? Taking of depositions. Have you had any discussions with plaintiffs counsel about being compensated for your time meeting with them or reviewing documents? How does my lawyer make sure that the doctors and medical facilities will get paid? 19 0 obj Because this unconventional, outside-the-box approach to corporate depositions has created a shift in the way plaintiffs lawyers take depositions. Id like to stipulate to the admission of the surgical report for all purposes including trial? Case factors which suggest plaintiff fraud. Over time, however, we have adapted. I'm always surprised by lawyers who do not take advantage of the opportunity to meet with the doctor before the deposition. Additionally, if the physician wishes to charge for his time, he should work this out with counsel prior to the deposition. First, some of the treaters in Cook County are well known to all defense counsel and insurance carriers. It is important it is to create medical records which are truthful, isnt it? For physicians, depositions are stressful and unnatural experiences. Testified in any deposition or at trial before? 0000010560 00000 n endobj Any self limitations on type of practice? 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. Why? 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 if that party has complied with subdivision (m) of section 2025.340. And in that situation, the pain generator is the incident and not the degeneration? 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. I was not invited to this talk between you and Mr. Fox, was I? J{Hc8Dh 8o4 F\I)2hI2eiH\QiH+?l)mD$kSIl?$Qp How did your management of plaintiff overlap with that of Dr.? 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. Ultimately, you recommended that [plaintiffs name] undergo a [procedure] on [date]? Once the deposition resumes, the attorney may then play on this "friendship" in an attempt extract additional testimony. And how many of these procedures have you done in your career to help your patients? It is also not unusual for a defendant physician or a plaintiff in a personal injury action to be present as well. 0000006588 00000 n Games insurers play in wrongfully denying claims. 3. Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. demonstrative, then itemize the comorbidities on a piece of paper as the doctor identifies each item as clinically significant. Identify by name and connection to the case, everyonewho is in the room. Ever had treatment for chemical dependency? A deposition is not to find out the facts. 3. You should always consult extensively with your own personal attorney and follow his or her advice. (Who? 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. <>/Metadata 528 0 R/ViewerPreferences 529 0 R>> Do you have a copy of the transcript of your testimony? That is what the trial is for. 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? But what you do have here is your history in the care and treatment of the plaintiff, correct? Board certified? One approach to setting the initial demand figure. Name - professional address >plaintiff's doctor? A Dive into Third-Party Litigation Financing and Third-Party Medical Funding, The Evolution of Texas Appellate Practice| David Keltner | Texas Appellate Law Podcast, FTC Issues Proposed Rule Banning Non-Compete Agreements. %PDF-1.4 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? <> These future recommendations are reasonably certain to occur to a reasonable degree of medical certainty? 0000036741 00000 n Back in the day, one of the first topics covered at the deposition was the physicians credentials. Can you explain to the jury what a _____ does. When one undergoes a procedure like the one [plaintiffs name] underwent, does that mean they are going to be in the clear without the need for future medical care moving forward? By Mike A. D'Amico, Esq.July 2012 In short, yes. 2 0 obj You do not know what is going to happen to John Jones in the future, do you? OPN&j~,,IQM'&R):Kq[9P&b8TM2Tv`D 2 Z l?ae X+=IQ@(=$SLz!lt@wdRc. Requirements for taking of depositions. 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, endobj Every case and set of circumstances is different. It does not matter that the doctor has not seen the documents, that the documents have little or nothing to do with the science of medicine surrounding the product, or that the documents are in no way temporally related to the care and treatment of the patient. deposition of pain management doctor. }oPqp[h|sI>T>Q~K)g.s5j|\fS6R}?QzFwPml_M0Sqf 0^)/^c {BB8&i1=fDY. These depositions focus on the substance of treatment, the patient's medical condition, and the patient's prognosis. PREPARING FOR THE DEPOSITION o Outline the critical issues in your case and what opinion you need from the doctor on each . 7 0 obj "Physicians understand the medicine better than the plaintiff attorney ever will," he explains. Saves you time in preparing your deposition outline. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Austin, Texas 78731 (512) 346-5688 . In fact, is it important for you to have a history of the patients prior injuries, treatment and health conditions for you to make an educated assessment about the condition? The insurer gets only a cross-examination . Ask the court reporter if s/he is ready. 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. The defendants lawyer will check to be sure that the doctor brought not only bills to John Jones, but also the bills sent to attorneys in this case, either showing services to the patient or services to the attorneys. The injured worker's deposition is the most important deposition taken in a workers' comp case. 5 0 obj The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. The remaining eleven represent deeper dives. First, the attorney must know the file. If your attorney does object, immediately stop your answer and listen to the objection carefully. This form is for the defense to use in examining the plaintiffs treating doctors. 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. Are there risks involved with [procedure]? But you have to ask yourself this question: Why qualify early? 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. about your clients injuries and treatment and then (b) call your retained doctor to the stand to discuss it (along with other matters). The witness was then provided additional medical records after deposition and before trial, with no . Here is a most basic direct examination outline for a treating doctor.DIRECT TREATING DOCTOR. Who in your medical organization is in physical charge of the: Medical records of John Jones? But if someone says they have a headache, you have to take their word for it, and it is called a symptom, isnt it? 196 0 obj <>stream Required fields are marked *. Generally the defense gains an advantage in the deposition of a plaintiffs treating doctor by making the examination, long, detailed, and boring. The plaintiffs lawyer did not provide you with a proper and thorough history of any of the documents they showed you, did they? In coordination with the initial diagnosis, were there consultations with other doctors? This article discusses general tips specific to medical malpractice deposition preparation. This field is for validation purposes and should be left unchanged. Law Firms: Be Strategic In Your COVID-19 Guidance [GUIDANCE] On COVID-19 and Business Continuity Plans. 166 31 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. He can be reached at ddesantis@alderlaw.com. 4. And then mark them as separate exhibits. Did they discuss with you any internal company documents? Names of attorneys? Lab work or other tests that were done and what were the results. Instead, it is more akin to a marathon, where the individual with the most stamina wins. 52-148e. 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. Professional experience5. 2. Also, during a break in the deposition, do not speak with anyone other than your own counsel. endobj Do the tables come outfitted with ashtrays for our smokes and carafes of stale water with cloudy ice cubes? You are not there to be an expert witness and likely have not properly reviewed the subsequent physicians records. 0000003470 00000 n %%EOF endobj Some treaters will testify that they cannot answer how the accident affected the pre-existing injury, which is useful to defense counsel. 2023 by the author. The defendants lawyer will check to be sure that the doctor brought. Sec. You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney <> 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? However, regardless of the outcome of the case, [plaintiffs name] is still responsible to pay your bills in full? Depositions usually in the office of an attorney. If someone has a broken bone, you can see that on an x-ray and it is called an finding, isnt it? Any medical licensing board disciplinary proceedings? Every deposition has an errata sheet, on which you can correct any errors to your testimony. 2. But the treater actually treated. This needs to be done before the defense deposition. 2d 182, 186 (Fla. 3d DCA 2005). So why do we continue to take physician depositions as if we are still in the stone age? Provides you with a time-tested order of questions for best results in most depositions. DIRECT - TREATING DOCTOR A. 3410 Far West Blvd., Ste 235 . Arguably, some of the most important testimony in a pharmaceutical or medical device case comes from the treater, prescriber or implanting physician. 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. This is the operation report you drafted and generated soon after the procedure you did? An effective deposition is the best opportunity to directly influence the ultimate outcome of the case. Q. A statement of all amounts of money received by the doctor or his or her medical organization from attorney Wiley Fox, or his firm Fox Huntum and Brag, during the last two years. 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. 96. Court involved? By this point, you have established the importance of medical records as a critical part of a true and accurate history. How long did you spend reviewing those additional items in preparation for this deposition? Video-recording the deposition and using it in trial. I agree to be emailed to confirm my subscription to this list, A direct examination outline of a treating doctor. What was your testimony about? Evidence of this standard of care must be presented through a similar health-care provider as the defendant whose conduct is in Read More Court involved? 98. Discuss [] For the jury, I want to shift gears and lets finally talk about what you know and what you were asked to come here to talk aboutyour records and your care and treatment of [plaintiff]. Did they discuss with you any scientific literature? 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). 0000005790 00000 n Before taking the deposition of a defense psychotherapist, it is important to spend a similar amount of time learning the basic concepts of psychology and psychiatry . A deposition is a process whereby witnesses provide sworn evidence. What to ask in the treating doctors deposition. I want to ask you about some defense opinions in this case, OK? D/A refers to the actual date of the accident, e.g., January 12, 2010. 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? Did you make a differential diagnosis to distinguish other causes of John Joness symptoms? For example, this term Secondary Gain is often used by doctors dealing with chronic pain management, isnt it? They allow one side to find out what a witness or party knows about the case; It fixes a witness's story so that he/she cannot amend his/her story at trial; Under certain circumstances, it preserves the testimony for witnesses who may not be available to testify at trial; and. Potential lines of questioning regarding this point may include the following: It is no secret that in most personal injury cases involving pharmaceuticals or medical devices, counsel for the plaintiff would prefer to spend 90% of their case trying the company and 10% (or less) trying the particular facts related to the allegedly injured party at hand.
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