A deposition is a process whereby witnesses provide sworn evidence. Case factors which suggest plaintiff fraud. {{h6;un%BN&{Z And we can live our lives and see these degenerative changes on MRI and never have pain? <> An experienced attorney will continue a deposition for as long as possible, without interruption, in an effort to fatigue the witness. 0000036741 00000 n Testified in any deposition or at trial before? Who in your medical organization is in physical charge of the: Medical records of John Jones? Even without expert testimony, the plaintiff's case should be made with the defendant's deposition. Professional experience 5. If yours is a case where the healthcare providers did not cite or blame your product on the outcome, then establish the absence of any causal link between the product and the outcome. Austin, Texas 78731 (512) 346-5688 . 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. PREPARING FOR DEPOSITIONS A. Depositions as Part of an Overall Discovery Plan 1:50 Reviewing the Case 1:51 Establishing Goals 1:52 Preparing an Outline 1:52.1 Practice Tip: When Making a Deposition Outline, Should You Write Out Every Question? Doctor, what is that opinion? Ask whether they were a treating physician . 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. Name - professional address >plaintiff's doctor? endobj 0000095064 00000 n Deposing these well known, flagged, treaters would simply increase litigation costs and not accomplish anything for defense counsel. 0000001716 00000 n C. REFUSAL TO MEET 1. This is an adversarial process, in which the patient's attorney will attempt to demonstrate that the physician's negligence injured the patient. Despite these known and disclosed risks, [plaintiffs name] ultimately went forward with the [procedure] with you because he was in so much pain in his [body part]? What did suit involve? 52-148a. All files and records of the doctor and his clinic or medical organization regarding John Jones. Fittipaldi USA, Inc. v. Castroneves, 905 So. Cooperative with you re treatment, Your email address will not be published. Your email address will not be published. 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. The treater is going to testify that the occurrence caused the injury, that there was no pre-existing injury and the injury is permanent. Before this deposition, did you meet with the attorney for John Jones, Mr. Fox? 1. Generally the defense gains an advantage in the deposition of a plaintiffs treating doctor by making the examination, long, detailed, and boring. 97. a. Future conditions or impairments. The primary treating physician is the physician selected by the employer, the employee pursuant to Article 2 (commencing with section 4600) of Chapter 2 of Part 2 of Division 4 of the Labor Code, or under the contract or procedures applicable to a Health Care Organization certified under section 4600.5 of the Labor Code, or in accordance with . Cross-Examining Doctors: A Practical Guide, Second Edition explains step-by-step how to: Investigate the case thoroughly and promptly. CPLR: DEPOSITIONS The treating physician was called to testify at deposition. %%EOF 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. This needs to be done before the defense deposition. 0000003806 00000 n Before entering this phase of oral discovery, the defense attorney will have all of the records for the treaters. The use of depositions at trial, particularly videotaped ones, has become increasingly common. The 9 most common personal injury case weaknesses. Testify by deposition or trial in the suit? <> Have you and Mr. Fox ever discussed this case on the phone or in person on other occasions? Copyright 2 0 obj So what about us defense lawyers? <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 19 0 R/Group<>/Tabs/S/StructParents 1>> endobj Why do they cause those same symptoms? hVo0O#{XUI0M`HUB6L;'vjk #1b.p-aMOX%pe9l48JX2Eg_3M8]NGUkzKphf=|N-I$T$Lgt:%NCQ~n9+|5h]h;,mgwbj }wz E/SR'#A`X?)6yCd\mMN=9U'vWUuEm.gr7 Ot8buqV5g"!OLUW\Ck,DIB1$ QJOW Do you have a copy of the transcript of your testimony? 0000003470 00000 n If the treaters records are detailed with complaints, recommendations and causation, then deposing that treater just to read back his records is not useful. Tell us some of the things that you cannot predict with certainty about John Jones? As a defense lawyer, it is important that you are aware of conversations, meetings, teleconferences, communications, etc. They did not provide any of the background data, underlying documents or emails leading up to that document? Passed specialty board for the specialty practiced? 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 Here is my guide for direct examination of the treating doctor. 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. stream Deposing a plaintiffs treaters should be on a case by case basis. Rule 32 (a) (1) states: Who saw John Jones on this first occasion, and why was John Jones seen? Kim Hart's Deposing and Examining Doctors gives you both. See 28 U.S.C . You have testified in the past as an expert on other cases on reasonable cost of medical treatment? 7 Id. The long deposition submerges any flashes of good testimony for the plaintiff in a mass of detail. 0000003085 00000 n These records are instrumental to whether a treaters deposition is even warranted. 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. Will the doctors, hospitals and other medical facilities wait for payment if I am unable to pay my bills as they are incurred? [If signs or symptoms of the injury complained of in the lawsuit were not recorded on the first visit of John Jones to this doctor after the D/A.] 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. One treater that is normally deposed is the surgeon. Your job as his doctor, was to try and make him feel better? Of course not. endobj Many physicians have had the unfortunate experience of giving a deposition. 11 ways insurers stonewall personal injury claimants. What represented the jurisdiction of each? 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 ($5.5 million verdict: surgical error during cardiac surgery) Defense Expert (birth injury) Defense Expert #2 General Litigation Deposing a Plaintiffs Treaters, deposing plaintiffs physicians, Alexander Sweis is an outstanding trial attorney with more than a dozen jury trials to his credit. What is the most important thing for me to do after my injury? After all, innovation in your questioning could very well be the sine qua non of your success. What matters is that effective use of corporate documents can poison the well as to the physicians impression of the company and its behaviorand make them less reluctant to make concessions that may play against the patient. \a:b%?#>h'o=*s+a0xdhu9CFEXMtgoQ+,qkH +Ps3)Pc Fox refers to the name of the plaintiffs attorney. These treaters are the physicians who treated the plaintiff for his alleged injuries. What medical history was obtained from John Jones? What is the basis of that opinion? 2. [Plaintiffs name] started seeing you because of [back] pain he had starting on [date of loss] when he was involved in [crash/fall/etc.]? HT]o[7}.-RlkC:ncg;\!uxDg'PJAbt&&$/OJBNZ%z6HrTtV>/j~b3Cq h?nFzgbSD7}ekJ[31-c. Have you had any discussions with plaintiffs counsel about being compensated for your time meeting with them or reviewing documents? A physician being deposed as a defendant must prepare by meeting with his/her attorney and reviewing the issues likely to arise during the proceedings. Contact Alex Sweis at McKenna Storer about this article or any questions relating to Insurance Defense. 1 0 obj Once the deposition starts, it is even more important to explore these meetings on the record so that the jury understands the who, what, where, when, why and how they transpired. 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 52-148e. 6 Id. How many students were there in your first-year medical class? 3. 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. 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. Instead, it is more akin to a marathon, where the individual with the most stamina wins. Did plaintiffs counsel say or suggest we were invited but did not show up? 96. A physician being deposed as a defendant must prepare by meeting with his/her attorney and reviewing the issues likely to arise during the proceedings. DIRECT EXAM OF TREATING DOCTOR . 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. April 9, 2022 /; Posted By : / sm furniture baguio city /; Under : animal crossing: new horizons amiibo figuresanimal crossing: new horizons amiibo figures What did you discuss with plaintiffs counsel? The deposition is taken down by a court reporter and a typed transcript is produced for later use by the attorneys and the court. 22 lowballing techniques used by unscrupulous insurance adjusters. 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? Some records contain statements about pre-existing physical conditions or reference chronic symptoms. What was your diagnosis of the problems of John Jones? 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? Every deposition has an errata sheet, on which you can correct any errors to your testimony. Evidence of this standard of care must be presented through a similar health-care provider as the defendant whose conduct is in Read More So in basic terms, a finding is something the doctor can see for himself, and a symptom is something the doctor is told exists? C. Cannot depose Independent Medical Examination Doctor or treating doctors, in the absence of special circumstances. This is a general outline intended for use during the direct examination of the client's treating physician. 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. Ask the court reporter if s/he is ready. One critical step in that preparation is deposing your clients main treating physician(s). How long did you spend reviewing your own medical records in preparation for this deposition? In the below checklist, the plaintiff is referred to as John Jones and Willy Fox or Mr. A. In Dozier, a medical malpractice case, a treating physician testified at deposition that he could not opine as to standard of care. What was your diagnosis of Johns problems when you last saw him? Ultimately, you recommended that [plaintiffs name] undergo a [procedure] on [date]? So, as we get older, we all have degeneration in the spine, which includes the back and neck? Surgeons are expensive to depose, but they are probably the star causation witness for a plaintiff. % 2023 by the author. Be confident. It is one more way to indirectly and tangibly bring the doctor back into the courtroom months down the road. We will highlight the basic format of a deposition, along with many of the tricks and tactics often used by deposing attorneys. 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? 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. 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. Is degeneration the normal aging process in the spine that we all go through? Who do you compete against for this award? And despite trying to get rid of it through other means, nothing was really helping, so he came to you for help? Proximate cause of injury: reasonable probability, 1. A defense-hired doctor might say that [plaintiffs name] did not require the [procedure] based on their interpretation of the MRI films only do you determine whether a patient requires a [procedure] just by reviewing MRI films? Failure of John Jones to follow directions of doctors could have affected his present condition, couldnt it? Attorney's checklist for evaluating cases. 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. And then mark them as separate exhibits. The first five are bitesize. 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 . Nailing your deposition is tall order. This form is for the defense to use in examining the plaintiffs treating doctors. Future complaints or subject symptoms. endobj License to practice medicine ever revoked, suspended, restricted? 1. 4. III. room. You were served with a subpoena asking you to bring a number of items to this deposition, werent you? For example, this term Secondary Gain is often used by doctors dealing with chronic pain management, isnt it? 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. And you created these in the ordinary course and scope of your business? A deposition is the questioning of a witness under oath outside of a courtroom. Of course we should, and while we have willingly and eagerly accepted the changes on the technology front, we have been less than zealous when it comes to adoptingor even consideringdifferent litigation practices and techniques. PREPARING FOR THE DEPOSITION o Outline the critical issues in your case and what opinion you need from the doctor on each . 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. Mechanical Aids Special Studies (electronic studies, lab tests, x-rays)? We have a duty as counsel to leave the take the deposition now and deal with it later attitude that seems to have become commonplace in some circles. 7 0 obj 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. Sec. startxref A deposition is not to find out the facts. In conclusion, 213F(2) oral discovery is a costly endeavor. Professional experience5. We would all agree that such a result est bonum. 3t@,PT.T++U;8"hPK~cTC4. Plaintiffs 213F disclosures will contain the treating physicians that plaintiff intends to call at trial. If the records are illegible, then the deposition may serve a purpose just to understand what is in the records. Treaters are rarely happy deponents. Hq'&F&' Doctor-Patient: Information shared between a patient and their treating physician cannot be used against the patient in legal proceedings. 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. An effective deposition is the best opportunity to directly influence the ultimate outcome of the case. So, that oath you took when you became a doctor, to help your patients as best you can, applies to [plaintiffs name]? J{Hc8Dh 8o4 F\I)2hI2eiH\QiH+?l)mD$kSIl?$Qp Asked you to tell jury about him? 4. Principle among these is the fact that the treating physician has a physician-patient relationship with your client. Required fields are marked *. Did they ask you to appear at a future trial of this case? Discuss [] When defending a deposition, there are several things to keep in mind: Prepare before the deposition: Review any relevant discovery information already provided. 0000010167 00000 n 0000001907 00000 n Oral or written report? Prepare the main treating doctor for a deposition, and promptly schedule and depose that treating doctor. Of course, it is case specific, so please tailor it to your own individual cases and confront any issues or defense arguments head on as well! x\on?},\shzmQ-D}gf$ Xfo7|ysvw"rqZrqG}{f6K.]%Y*9*Reer~\$-t]i~8?2/grE2ty%3r.BGa&y*I.>%o64$YN\LL~;\SZxcDy=:TRLe2e+AWyVb8 3*L3V3JcM_QCd` TNI:eZME*&5jipbXMI(=Y6{mO_uX-d5-dNZpilAmS&_?q k:V&]Gdc";{I-Y oMdf(N4$!/yk;'/]%r$zndicvMDJ0Ll,Xv)Tdag$z=}vZ|(vh[=9aD9;FT2)4TLex(:+P0h 6i4S{HTGtL(*+,yGPjr@[]c:hQEn6iZN>cz ?$AK Take breaks when you need them or if your attorney suggests it. 0000030483 00000 n What attorneys tell their clients at the first meeting. 13 tips to help you understand insurers with different settlement approaches. Every client, every case and every doctor are unique, therefore, this 0000047880 00000 n It is important to review these documents for the following two purposes: Whether the plaintiff's doctor had a complete medical brief 0000000916 00000 n Check. The first time you saw the documents were before today where you are being recorded and have been sworn in under oath? 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.
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