Treating doctors carry more credibility with a jury than a retained expert. Board Certified by The Florida Bar in Health Law, OSTEOPATHIC FAMILY MEDICINE RESIDENCY PROGRAM. George F. Indest III, J.D., M.P.A., LL.M. Mechanical Aids Special Studies (electronic studies, lab tests, x-rays)? In federal court proceedings, the deposition may be your only shot to obtain favorable testimony from the treating physician. _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. The tired practice of following an outline loosely based on Introduction, Credentials, Records Review, Opinion and Thank You for Your Time, Doctor is over. They are used to gather pretrial information, specifically to discover what a witness may know and to preserve that testimony for later use in court. Identify by name and connection to the case, everyonewho is in the room. We would all agree that such a result est bonum. As to all items disclosed of interest, the defendants lawyer will close with asking: Is there anything else you can recall about this visit/condition/treatment? 0000010560 00000 n They did not invite any of the recipients of the documents to attend? 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. Have you referred to any articles or texts in reviewing this case or in preparing your opinions or to testify in this case? When the plaintiffs lawyer showed you those documents: They did not invite any of the authors of the documents to attend? 0 [The defense lawyer will obtain and mark as Exhibit. Q. treating physician deposition california. Principle among these is the fact that the treating physician has a physician-patient relationship with your client. Findings; D. ROLE IN CASE. Deposing these well known, flagged, treaters would simply increase litigation costs and not accomplish anything for defense counsel. !`.Yh Are there other conditions (other than the one you diagnosed) that may cause John Joness symptoms? They certainly did not show them the documents or timeline surrounding whatever issues were discussed or referenced therein. 52-148e. Sec. 97. 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. 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. Please tell us what physical examination was made on this first visit, and what it disclosed? Tips for defending a deposition. The defendants lawyer will check to be sure that the doctor brought. 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. )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( Generally the defense gains an advantage in the deposition of a plaintiffs treating doctor by making the examination, long, detailed, and boring. Privileges in hospitals in the area? Below is a general outline that I use. How long have you been practicing medicine. All files and records of the doctor and his clinic or medical organization regarding John Jones. history says by those individuals with clinical knowledge of the treatment, diagnosis, history, etc.? 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. thorough outline of topics typically addressed when deposing a medical expert in a car wreck case. ~Z#'tqkCIj.Qft&QR endobj You are being interviewed for the position of "defendant." Your own attorney is as much involved in that as the plaintiff's attorney Instead, it is more akin to a marathon, where the individual with the most stamina wins. Medical school, internship, residency, fellowship? This outline and the information it contains is for educational and informational purposes, to promote discussion and analysis. What effect can that prior injury or history have on the diagnosis of John Joness present condition? The treating physicians know why they are using certain treatments and drugs and not others. Ask whether they were a treating physician . Opinion re plaintiff honest or exaggerated/fake2. 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. 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. 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. However, providing prior records risks transforming the non-retained treating physician into a retained expert. In the context of the practice of medicine, we are all very familiar with the Latin phrase primum est non nocere. You had the benefit of the plaintiffs medical record and past illnesses, ailments and comorbidities? If witness has not brought any item: Of course not. b. <> His accessibility to clients and willingness to take the time to discuss their cases with them is in keeping with the firms focus on transparency in attorney relationships with clients. If the patient gave a version of the accident to the hospital or doctor that varies from his deposition testimony, may be able to apply to the court for a fact deposition of a doctor. Austin, Texas 78731 (512) 346-5688 . Sec. 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 These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Having now laid the foundation for the plaintiffs health condition and having taken a trip through time leading up to the allegations at issue, you must then make the call to determine how deep you want to go regarding substantive opinions about the product, outcomes, diagnosis and prognosis. When you are done, have the doctor clearly confirm what the list represents. 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. Did you make a differential diagnosis to distinguish other causes of John Joness symptoms? Medical personnel, working in medical intensive care units, are exposed to fatigue associated with alarms emitted by numerous medical devices used for diagnosing, treating, and monitoring patients. Cooperative with you re treatment, Your email address will not be published. Check. More importantly, we are still discussing the Reptile theory today because, in many cases, it has worked. endobj They know what future treatment they recommend and why. The deposition is taken down by a court reporter and a typed transcript is produced for later use by the attorneys and the court. document.getElementById( "ak_js_1" ).setAttribute( "value", ( new Date() ).getTime() ); This site uses Akismet to reduce spam. No. How long engaged in practice? What matters is that effective use of corporate documents can poison the well as to the physicians impression of the company and its behaviorand make them less reluctant to make concessions that may play against the patient. as an individual exhibit. endobj What is the most important thing for me to do after my injury? Rule 32 of the Federal Rules of Civil Procedure governs the use of a deposition at trial. endobj A treating physician should also never give an opinion regarding another physicians medical care while being deposed. 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. How did your management of plaintiff overlap with that of Dr.? 1. 166 31 Gives you a low-cost way to put together your deposition outline questions. 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. Sec. 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. Depositions in civil actions and probate proceedings. J&zXLEn& "( [2mf#'cwvm/*Uz/MealffAc,sX19 v @@;@R`q9 9b What did you discuss with plaintiffs counsel? The deposition of the defendant physician is the crucial turning point of your medical negligence case. %PDF-1.4 % This is the operation report you drafted and generated soon after the procedure you did? 0000003085 00000 n If a mouse runs by, get its name and put it on the record. The insurer gets only a cross-examination . Here is my guide for direct examination of the treating doctor. Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. Even if your patient tells you what the document means, would you want to see what the treatment, diagnosis, surgical, etc. Proximate cause of injury: reasonable probability, 1. Tried, settled or still ongoing? Tell us some of the things that you cannot predict with certainty about John Jones? As good personal injury lawyers, we have all spent a great deal of time learning medicine, particularly the medicine involving orthopedic injuries. We will highlight the basic format of a deposition, along with many of the tricks and tactics often used by deposing attorneys. What did you do? 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? Date of suit? Once the deposition resumes, the attorney may then play on this "friendship" in an attempt extract additional testimony. 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. <<8C151ED5F53D3C45872ADFD1BAFF7038>]/Prev 350918>> Individual websites for medical specialties often 5 Betsey Herd and Janabeth Evans, "Preparing for the Defense Medical Expert's Deposition", Trial, Vol. These depositions focus on the substance of treatment, the patient's medical condition, and the patient's prognosis. Were there any consultations with other doctors? Who in your medical organization is in physical charge of the: Medical records of John Jones? 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. 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. 0000030483 00000 n This analysis can be seen in most soft tissue cases. The retained expert can come across as a hired gun. 3. However, the plaintiff can use the treater to obtain aggravation or exacerbation testimony. (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 . 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. This form is for the defense to use in examining the plaintiff's treating doctors. 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? By Mike A. D'Amico, Esq.July 2012 In short, yes. Ask whether their hospital privileges have ever been suspended or provoked. Have you and Mr. Fox ever discussed this case on the phone or in person on other occasions? How does my lawyer make sure that the doctors and medical facilities will get paid? Always request to review the transcript! When you see a patient for the first time, you want to know the history? xref 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. 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. Passed specialty board for the specialty practiced? b. Depositions of key witnesses; c. Clinic records; Reviewed medical literature generally about this situation? The use of depositions at trial, particularly videotaped ones, has become increasingly common. Second, the attorney must know the law affecting the case, including valid objec-tions in a deposition. The defense lawyer can subpoena or otherwise secure the attendance of the treating physician at a deposition. Names of attorneys? Would your opinion change if you knew that ___________? Before the final status conference or before trial documents are due, be sure to serve the defense with your video- deposition page line designations so they have an opportunity to object and counter-designate clips to play. 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. \a:b%?#>h'o=*s+a0xdhu9CFEXMtgoQ+,qkH +Ps3)Pc 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. 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 does your practice of (orthopedics) involve? Please show me all the items you brought to comply with that subpoena. 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. 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. Build a Morning News Brief: Easy, No Clutter, Free! 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 Check. Sec. 2. 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\ 3. Good afternoon, Dr. Doe. This field is for validation purposes and should be left unchanged. This needs to be done before the defense deposition. hb```@2Abl,'p-. Offering such an opinion will leave you open to impeachment at trial. Is degeneration the normal aging process in the spine that we all go through? Case factors which suggest plaintiff fraud. These can range from emergency room physicians, primary care doctors, chiropractors, surgeons, pain doctors and physical therapists. A deposition is a job interview. Did you ask plaintiffs counsel why we were not at the meeting to discuss the case? Preparing the Documents Who do you compete against for this award? But if someone says they have a headache, you have to take their word for it, and it is called a symptom, isnt it? Party subject to taking of deposition. These treaters are the physicians who treated the plaintiff for his alleged injuries. What physical examination was made and what were the findings? That is what the medical record is for. 0000001907 00000 n Law Firms: Be Strategic In Your COVID-19 Guidance [GUIDANCE] On COVID-19 and Business Continuity Plans. Life expectancy impacted? Lab work or other tests that were done and what were the results. <> 0000009060 00000 n DIRECT EXAM OF TREATING DOCTOR . 691 0 obj <> endobj 14 0 obj 2. 698 0 obj <>/Filter/FlateDecode/ID[<352186D50418074EACA279C3AF9D6495><290B7E37AE5F8F4E8C51CFCC6B763D9B>]/Index[691 18]/Info 690 0 R/Length 56/Prev 66248/Root 692 0 R/Size 709/Type/XRef/W[1 2 1]>>stream Names of parties? ?4bm9MQFc:=R%`h0QO1{W~}Cxw1# 4Dzu[Zd.6/|D`^m^ :7 The 9 most common personal injury case weaknesses. 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. Additionally, there may be other participants involved as well. Be confident. Cover client's significant medical records including records that predate injuries at issue. Mr. DeSantis is a 2017 graduate of the Consumer Attorneys Association of Los Angeles Trial Academy. A deposition is the questioning of a witness under oath outside of a courtroom. How long did you spend reviewing those additional items in preparation for this deposition? Consequently, we all can leave here knowing there is no mistake that [summarize again]. These records are instrumental to whether a treaters deposition is even warranted. 0000095064 00000 n 0000063781 00000 n Other than medical reporting, the workers' comp deposition is the main way for the insurance company to learn about the worker's injury. 2017 April. 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The findings risks transforming the non-retained treating physician should also never give an opinion regarding another physicians care. Tissue cases on the record great deal of time learning medicine, videotaped. Know why They are using certain treatments and drugs and not others FAMILY RESIDENCY... In a car wreck case when deposing treating physician deposition outline medical expert in a car wreck case many,. B. depositions of key witnesses ; c. clinic records ; Reviewed medical literature generally about this situation the phrase. The crucial turning point of your medical negligence case your opinions or to testify in case... To testify in this case rule 32 of the treatment, diagnosis, history, etc. records.
