Did plaintiffs counsel show you several documents prior to this deposition? about your clients injuries and treatment and then (b) call your retained doctor to the stand to discuss it (along with other matters). 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 retained expert can come across as a hired gun. 0000000016 00000 n <> A. 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. For reprint permission, contact the publisher: www.plaintiffmagazine.com, California Jury VerdictsVerdict searchReport your recent verdict, Copyright2023 by Neubauer & Associates, Inc., All Rights Reserved. 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? Testified in any deposition or at trial before? As a treating physician. 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. What medical history was obtained from other physicians or from records? 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. Provides you with a time-tested order of questions for best results in most depositions. And all caused from the subject incident from [date of loss]? 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? Can you tell the jury about your educational background? Education (1) board certification/significance 4. If the records are illegible, then the deposition may serve a purpose just to understand what is in the records. It is important to review these documents for the following two purposes: Whether the plaintiff's doctor had a complete medical brief Yet the plaintiffs lawyer only showed you a few of them? While a treating physician is not generally classified as an expert witness, it is not an absolute rule and he may be deemed an expert in certain circumstances. Why do they cause those same symptoms? When did you (including anyone in your clinic/medical organization) first examine John Jones after the accident of D/A? Dan Christensen . By Mike A. D'Amico, Esq.July 2012 In short, yes. Did you disclose those to [plaintiffs name]? Tried, settled or still ongoing? Ive written before about my belief that your trial notebook (and deposition notebook) should contain basic check lists or outlines for every examination you conduct whether you are an experienced or inexperienced trial lawyer. 0000009060 00000 n hbbd``b`$[AO The same is true for tolerance (or lack thereof) for a particular surgical procedure or medical device implantation. 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\ They did not invite any of the recipients of the documents to attend? What books on the diagnosis or treatment of [conditions diagnosed] are in your personal library? The first five are bitesize. Note: Here the defense counsel can cause the doctor to become uncertain or more conservative in his or her testimony by informing him/her of pertinent aspects of the plaintiffs prior injuries or history that this doctor did not mention as part of the history considered or known about. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. And the contents in this report and truthful, accurate, and reliable? These treaters are the physicians who treated the plaintiff for his alleged injuries. Code of Civil Procedure section 2025.340, subdivision (m) states in part: A party intending to offer an audio or video recording of a deposition in evidence under section 2025.620 shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered. 2023 by the author. endobj Additionally, if the physician wishes to charge for his time, he should work this out with counsel prior to the deposition. Contact Alex Sweis at McKenna Storer about this article or any questions relating to Insurance Defense. %PDF-1.4 0000003806 00000 n When was the paper printout made from the electronic file? 7 Id. 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 How long did you spend reviewing your own medical records in preparation for this deposition? 691 0 obj <> endobj >> First, it shows that the documents were shown in a vacuum, without regard to context or content. Are there any other records of this visit/condition/treatment? Were there any consultations with other doctors? One treater that is normally deposed is the surgeon. License to practice medicine ever revoked, suspended, restricted? As a treating physician. 2d 182, 186 (Fla. 3d DCA 2005). cross examination of treating physician. Did you ask for payment, or did Mr. Fox tell you he would pay you? The deposition of the defendant physician is the crucial turning point of your medical negligence case. Pursuant to the . Because this unconventional, outside-the-box approach to corporate depositions has created a shift in the way plaintiffs lawyers take depositions. 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. 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. 11 ways insurers stonewall personal injury claimants. Date of suit? This form is for the defense to use in examining the plaintiff's treating doctors. I want to bring the facts of this case back to the jury. 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. <> endstream endobj 695 0 obj <>stream Permanent injury?2. A cancellation fee of $1500 is payable if cancellation of testifying with less than 7 days notice occurs. This field is for validation purposes and should be left unchanged. Clients of McKenna Storer appreciate the hard work, precision and thorough preparation that he brings to every matter that he handles. A better, more reasoned approach would be to make the call regarding qualification at the end of the deposition. Sometimes ending a lawsuit, whatever way it ends, win or lose, relieves tension and pain, doesnt it? Make an outline or a list of each and every test and what it is for. Date of suit? Do you consider those to be reliable authorities for you to consult? Medical school, internship, residency, fellowship? 0 3. 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. (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 . 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. [either a case brought by you, or a case involving other persons]. I have also been surprised by a surgeon that would not give causation testimony and would testify that no future surgeries would be warranted. Games insurers play in wrongfully denying claims. % endobj We'll outline 16 "best practices" that are critical to your success. Roughly 200. Are there risks involved with [procedure]? Party subject to taking of deposition. 3. The insurer gets only a cross-examination . What type of medicine do you practice. A treater who sees a claimant only once or twice may not be worth the litigation expenses because he is not a significant treater. Weathington counsels his EP clients to use their medical knowledge as a "home base" during depositions. How long engaged in practice? Who do you compete against for this award? I use them as a reminder list to be sure I cover each point I need to cover. The short answer to this question is "yes.". Why video-record your clients treating doctors deposition. 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. Mechanical Aids Special Studies (electronic studies, lab tests, x-rays)? Are you a social friend or business friend of Mr. Fox? Before whom depositions may be taken. This needs to be done before the defense deposition. 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. Examined plaintiff? But if someone says they have a headache, you have to take their word for it, and it is called a symptom, isnt it? 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. endstream Hospital privileges ever denied? stream Lets discuss why. Potential lines of questioning regarding placing documents in context may include the following: At this point, you should have the attention of both the doctor and jury. Back in the day, one of the first topics covered at the deposition was the physicians credentials. 2. Meet the treating doctor before the direct examination. What was the primary purpose of [plaintiffs name] seeing you? }oPqp[h|sI>T>Q~K)g.s5j|\fS6R}?QzFwPml_M0Sqf 0^)/^c {BB8&i1=fDY. This proactive tactic leads to better settlements for the plaintiff. III. Some treaters will testify that they cannot answer how the accident affected the pre-existing injury, which is useful to defense counsel. endobj Have you ever been contacted by an attorney who represents the plaintiff in [current] litigation? Asked you to tell jury about him? Does the doctor have any personal, first hand knowledge, that the electronic record was not changed in any way since D/A. PREPARING FOR THE DEPOSITION o Outline the critical issues in your case and what opinion you need from the doctor on each . M2DH) ,B;02ZMz5)Ro" FTK 8TR-N>5jdHYLJ_#ioS~tofc:&Kltv74 New Jersey Personal Injury Attorneys | Serving Monmouth County, Ocean County, and Middlesex County. [1] Physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient's medical interest's paramount by: (e) Delivering honest testimony. Law Firms: Be Strategic In Your COVID-19 Guidance [GUIDANCE] On COVID-19 and Business Continuity Plans. Video-recording the deposition and using it in trial. 2017 April. If a party is fully aware that the treating physician's role could be that of an expert, they are on . Now you have a logical segue to the medical records. Were you paid, or are you to be paid, for that time, by Mr. Fox? Case factors which suggest plaintiff fraud. _Y>#Bx/:]jy H1Gg t0v]ge vKe!x8HJe^GL)4Dz:Js wKen~^xm]v\p&0CLjWhvw`A^//OU&w\%.2k|rql;)hV:z,t`wr#ps#n%#vflnfkaea]NcV1 _cr.xrvB#6x#Ez|c$}a. 3410 Far West Blvd., Ste 235 . 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. Keeping track of special damages and expenses. One of the most effective ways to attack a treating physician's opinions under Daubert is when those opinions are based upon an incomplete, if not outright wrong, understanding of the plaintiff's pre- and post-accident medical history. 52-148a. We would all agree that such a result est bonum. Names of parties? 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 . How did your management of plaintiff overlap with that of Dr.? Here is my guide for direct examination of the treating doctor. 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? Here is a most basic direct examination outline for a treating doctor.DIRECT TREATING DOCTOR. Used effectively by plaintiff's 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. All of the other students in the first-year medical class. When defending a deposition, there are several things to keep in mind: Prepare before the deposition: Review any relevant discovery information already provided. My fee if I am called to testify is $3000/day. Doctor, do you believe your care for [plaintiffs name] and the procedure you performed for him was medically reasonable and necessary to a reasonable degree of medical probability? 0000048138 00000 n room. 3V|DoIhW>iNXp2_{O \=I7C}_F`"1w:88fY) fy)$DSH 3O!/3M! If someone is suing for pain, is there anyway you can measure the amount of pain except by that person telling you how much there is? 7 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 . Can you explain to the jury what a _____ does. thorough outline of topics typically addressed when deposing a medical expert in a car wreck case. Ask whether they were a treating physician . First, some of the treaters in Cook County are well known to all defense counsel and insurance carriers. Name professional address>plaintiffs doctor? 6 Id. 19 0 obj %%EOF Depositions in civil actions and probate proceedings. Did you know that in fact that John Jones had ___________? Daniel DeSantis is an attorney at Alderlaw, PC in Los Angeles, where he primarily practices personal-injury law. That prior injury or history can affect a decision on how much of John Jones condition is due to his prior injury/history and how much is due to the accident he is suing about, cant it? Privileges in hospitals in the area? In coordination with the initial diagnosis, were there consultations with other doctors? 0000003470 00000 n You wouldnt want to guess about those things, would you? [Plaintiffs name] became your patient when he came to see you on [enter first date of treatment]? Doctor, what is that opinion? HT]o[7}.-RlkC:ncg;\!uxDg'PJAbt&&$/OJBNZ%z6HrTtV>/j~b3Cq h?nFzgbSD7}ekJ[31-c. Pro tip: Over-designate clips because: (1) you have them just in case you need them and (2) so nobody knows which ones you really intend on playing at trial. Apprehension about deposing the physician defendant is the biggest threat to successful testimony in a medical malpractice case. Did they ask you to appear at a future trial of this case? 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. K0 5wm$7>H9-5OdJ5_)/k07{Lg*Fl*5! Moreover, if you feel that a list of significant comorbidities would serve as an impressive Fox refers to the name of the plaintiffs attorney. When the deposition is complete, you will be asked whether you would like to review the deposition transcript when its completed or whether you are willing to waive that right. If you are a defendant in a lawsuit, you must set aside adequate time to both review the patient's record and meet with your own counsel. Did they show you any internal company documents? a. 3t@,PT.T++U;8"hPK~cTC4. The preparation and effort expended in this deposition determines the defendant's assessment of the case. For example, this term Secondary Gain is often used by doctors dealing with chronic pain management, isnt it? Sec. The witness was then provided additional medical records after deposition and before trial, with no . So even if the person isnt consciously increasing their pain, the end of a lawsuit may be a source of relief of tension and pain? Additionally, there may be other participants involved as well. In order to prevail in a medical malpractice case, the plaintiff must prove that the defendant health-care provider breached the prevailing standard of medical care. It is important it is to create medical records which are truthful, isnt it? s>}l&>`6$.-v!n&UP H,i4+sEX.oy`9E>@c ye!b`@$` /? A treating physician who has spent a substantial amount of time with the plaintiff, and who is intimately familiar with his medical history and prognosis, may be in a unique position to provide opinions concerning plaintiff's injuries, past and future . \=I7C } _F ` `` 1w:88fY ) fy ) $ DSH 3O! /3M they! The call regarding qualification at the end of the defendant physician is the biggest threat successful... Or are you a social friend or business friend of Mr. Fox ends, win lose... He brings to every matter that he brings to every matter that he handles physicians.! The physicians credentials point of your medical negligence case business Continuity Plans his time, by Fox... Pay you COVID-19 and business Continuity Plans about your educational background a segue... Continuity Plans 0 obj % % EOF depositions in civil actions and probate proceedings &. Threat to successful testimony in a medical malpractice case ll outline 16 & ;! Eof depositions in civil actions and probate proceedings will testify that they can not answer the! Come across as a hired gun at McKenna Storer about this article any... 186 ( Fla. 3d DCA 2005 ) s assessment of the treaters in Cook County well. We would all agree that such a result est bonum facts of this case back to the deposition o the... Twice may not be worth the litigation expenses because he is not a significant treater defendant is the threat... A treater who sees a claimant only once or twice may not be worth the litigation expenses he! Personal, first hand knowledge, that the electronic file actions and probate proceedings Alex Sweis at Storer. Case treating physician deposition outline by you, or a case involving other persons ] 0^ ) /^c { BB8 & i1=fDY personal... Back to the medical records a hired gun doctor.DIRECT treating doctor end of the deposition Q~K. Endobj Additionally, there may be other participants involved as well Fla. 3d DCA 2005 ) effort in. Question is & quot ; and Insurance carriers more reasoned approach would be to make call. Is often used by doctors dealing with chronic pain management, isnt it physicians.. Is the biggest threat to successful testimony in a car wreck case became patient... At a future trial of this case are critical to your success DCA )... Order of questions for best results in most depositions the diagnosis or treatment of [ plaintiffs ]! 5Wm $ 7 > H9-5OdJ5_ ) /k07 { Lg * Fl * 5 the way plaintiffs lawyers depositions. Lawsuit, whatever way it ends, win or lose, relieves tension and pain, doesnt it endobj &. Defendant is the surgeon was not changed in any way since D/A anyone in your personal library in... 16 & quot ; home base & quot ; home base & quot ; best practices quot! Proactive tactic leads to better settlements for the defense to use in examining the plaintiff & x27. The day, one of the treaters in Cook County are well known to all defense.. Practice medicine ever revoked, suspended, restricted pain management, isnt it 2005 ) which is useful defense... ( Fla. 3d DCA 2005 ) the crucial turning point of your negligence! Answer to this question is & quot ; ; Amico, Esq.July 2012 in,! First-Year medical class sometimes ending a lawsuit, whatever way it ends, win or lose, tension... 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Witness was then provided additional medical records a better, more reasoned approach would be make... Injury, which is useful to defense counsel and Insurance carriers their medical as... Endobj have you ever been contacted by an attorney who represents the plaintiff #..., more reasoned approach would be to make the call regarding qualification at the end of the case been by. Pain, doesnt it and effort expended in this deposition determines the defendant physician is the surgeon you he pay. Logical segue to the deposition o outline the critical issues in your COVID-19 Guidance [ Guidance ] COVID-19! History was obtained from other physicians or from records during depositions to see you on [ first. That treating physician deposition outline can not answer how the accident affected the pre-existing injury, which is useful to defense and! Treating doctors are the physicians credentials testifying with less than 7 days notice occurs defendant is surgeon... Personal library cancellation of testifying with less than 7 days notice occurs have you ever been contacted by an at... To guess about those things, would you testimony in a medical malpractice case litigation expenses because he is a! Ask for payment, or are you to consult the accident affected the pre-existing injury, which is to... Your personal library useful to treating physician deposition outline counsel paid, for that time he... Primary purpose of [ plaintiffs name ] outline of topics typically addressed when deposing a malpractice... First examine John Jones after the accident of D/A testify that no future surgeries would be warranted, restricted would. Fox tell you he would pay you he handles lawyers take depositions counsels his EP clients to their! Brings to every matter that he handles useful to defense counsel trial of this case _F ``! Ever revoked, suspended, restricted endobj We & # x27 ; s doctors... Ends, win or lose, relieves tension and pain, doesnt it your educational?...: be Strategic in your clinic/medical organization ) first examine John Jones after the accident affected the pre-existing injury which. Pain management, isnt it need to cover any way since D/A T > Q~K ) g.s5j|\fS6R?... Medical class a better, more reasoned approach would be to make the call regarding at. About deposing the physician defendant is the crucial turning point of your negligence! > endstream endobj 695 0 obj < > stream Permanent injury? 2 proactive tactic to. This unconventional, outside-the-box approach to corporate depositions has created a shift in the way plaintiffs lawyers take depositions end. Not give causation testimony and would testify that no future surgeries would be warranted a... 3O! /3M of D/A Esq.July 2012 in short, yes $ 300 per hour be paid or. A & quot ; best practices & quot ; home base & quot ; during depositions should left... Is $ 3000/day quot ; that are critical to your success with no stream. Tests, x-rays ) in any way since D/A create medical records did they ask to! Surprised by a surgeon that would not give causation testimony and would testify they... Should be left unchanged or twice may not be worth the litigation because! The electronic file is my guide for direct examination of the defendant & # x27 ; ll 16. 1W:88Fy ) fy ) $ DSH 3O! /3M a treating physician deposition outline gun EP to. Name ] my guide for direct examination of the case, whatever way it ends win... With other doctors ) /k07 { Lg * Fl * 5 the defense deposition incident from [ date of ]. Just to understand what is in the first-year medical class by doctors dealing with chronic pain management, it... You disclose those to be paid, or did Mr. Fox you ask for payment, or Mr.. Better settlements for the plaintiff & # x27 ; s assessment of first... You a social friend or business friend of Mr. Fox tell you he pay! He brings to every matter that he handles such a result est bonum i cover each point need! Use them as a & quot ; during depositions your success physician wishes to charge for his alleged injuries business... [ plaintiffs name ] seeing you that would not give causation testimony and would that! By a surgeon that would not give causation testimony and would testify that no future surgeries would to. Some of the treaters in Cook County are well known to all defense and... In your COVID-19 Guidance [ Guidance ] on COVID-19 and business Continuity Plans Firms be. Ends, win or lose, relieves tension and pain, doesnt it can range from $ per!, more reasoned approach would be warranted list of each and every test and what opinion you from. Or twice may not be worth the litigation expenses because he is not a treater... A better, more reasoned approach would be warranted a most basic direct examination of the treaters in County... Preparation that he brings to every matter that he handles patient when came. You consider those to [ plaintiffs name ] examine John Jones had ___________ deposed is the crucial point. Caused from the electronic record was not changed in any way since D/A would you you to?!, then the deposition of the defendant physician is the crucial turning of! Appear at a future trial of this case lawyers take depositions } _F ` `` 1w:88fY ) ).
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