endobj Direct-Examination of Dr. Jackson (Treating Doctor). So why do it at the beginningbefore you know what they are going to say? That is what the trial is for. 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. Sometimes ending a lawsuit, whatever way it ends, win or lose, relieves tension and pain, doesnt it? Challenging a Treating Medical Provider's Opinions Based on a False Factual Premise . The defendants lawyer will specifically ask if the following are present now in the room. Any medical licensing board disciplinary proceedings? Over time, however, we have adapted. 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. Games insurers play in wrongfully denying claims. I never read from them, but rather refer to them to refresh my memory and then address the witness without the material. between counsel for the plaintiff and the doctor before the first question is asked under oath. Your job as his doctor, was to try and make him feel better? cross examination of treating physician. 3V|DoIhW>iNXp2_{O \=I7C}_F`"1w:88fY) fy)$DSH 3O!/3M! 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. The old idiom take them out to the woodshed harkens back to the days when a child or individual would be taken out of the house to the proverbial woodshed for some one-on-one behavioral modification. <> 2. Education (1) board certification/significance 4. Is that an agreement you entered into with your patient to help him by stalling out collection of the bills until his case is over? What did suit involve? Over the past 20 years, the advent of the internet and other technological innovations, coupled with novel approaches to assessing, diagnosing and treating patients, has led to a paradigm shift in the way many doctors practice medicine. (1) nature/expense reasonable probability4. about your clients injuries and treatment and then (b) call your retained doctor to the stand to discuss it (along with other matters). How long did you spend reviewing your own medical records in preparation for this deposition? Some treaters will testify that they cannot answer how the accident affected the pre-existing injury, which is useful to defense counsel. Ask whether they were a treating physician . What to ask in the treating doctors deposition. Every client, every case and every doctor are unique, therefore, this You should also incorporate questioning to elicit testimony that physicians rely on prior histories for a number of reasonsnot the least of which is to make good, solid, history-based medical decisions going forward. This article focuses on a new, if not novel, means of approaching the heretofore routine doctor deposition. 0000011138 00000 n We would all agree that such a result est bonum. Is that a reasonable cost based on your training and experience to a reasonable degree of medical probability? A deposition is the questioning of a witness under oath outside of a courtroom. Leave with a better understanding of the overall deposition process. Were you paid, or are you to be paid, for that time, by Mr. Fox? Are you a social friend or business friend of Mr. Fox? I'm always surprised by lawyers who do not take advantage of the opportunity to meet with the doctor before the deposition. 98. As a treating physician. So, as we get older, we all have degeneration in the spine, which includes the back and neck? Special qualifications - seeCV if any Date of suit? Know the doctor's file / report better than opposing counsel Do Internet research to understand the medical issues Know the law - "medically distinguishable" Call the doctor ahead of time if possible Show up in advance of deposition to discuss testimony Don't be afraid to cancel a deposition . New Jersey Personal Injury Attorneys | Serving Monmouth County, Ocean County, and Middlesex County. 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. %PDF-1.5 Cover client's significant medical records including records that predate injuries at issue. endstream endobj 692 0 obj <>/Metadata 40 0 R/PageLayout/OneColumn/Pages 687 0 R/StructTreeRoot 63 0 R/Type/Catalog>> endobj 693 0 obj <>/Font<>>>/Rotate 0/StructParents 0/Type/Page>> endobj 694 0 obj <>stream Who has possible access to computer terminals that can enter or change data in the file? 1:53 Practice Tip: Ten Things to Cover in Every Deposition B. Was John Jones referred to you by Mr. Fox [the attorney for the plaintiff]? Check. The court reporter's role is to administer an oath or affirmation and then transcribe verbatim every comment made in the room during the deposition. Or, at least it should be. 691 0 obj <> endobj In Dozier, a medical malpractice case, a treating physician testified at deposition that he could not opine as to standard of care. Names of attorneys? So why do we continue to take physician depositions as if we are still in the stone age? 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 . The settlement style of large and conservative insurers. All files and records of the doctor and his clinic or medical organization regarding John Jones. Moreover, if you feel that a list of significant comorbidities would serve as an impressive The remaining eleven represent deeper dives. What type of medicine do you practice. What was the primary purpose of [plaintiffs name] seeing you? 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. By Mike A. D'Amico, Esq.July 2012 In short, yes. How insurers view personal injury claims. Proximate cause of injury: reasonable probability, 1. hb```xX Dan Christensen . Fittipaldi USA, Inc. v. Castroneves, 905 So. CPLR: DEPOSITIONS DIRECT EXAM OF TREATING DOCTOR . Instead, it is more akin to a marathon, where the individual with the most stamina wins. PREPARING FOR THE DEPOSITION o Research doctor [s background o Prior deposition/trial testimony in similar cases (use P/D lawyer associations etc.) 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. When was the paper printout made from the electronic file? 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. 4. 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. 8 Id. 3. 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. And the list goes on, with most of us quietly congratulating ourselves after the fact on our ability to read a CV into the record. 0000001573 00000 n Can you explain to the jury what a _____ does. [7] 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. Was the treatment you gave John Jones successful? When was the first time you or anyone in your clinic/medical organization saw John Jones? 52-148c. What they should do is challenge us to take the reins and step outside our comfort zones. It is also not unusual for a defendant physician or a plaintiff in a personal injury action to be present as well. If the course of a plaintiffs medical treatment is emergency room, to chiropractor, to pain doctor, then deposing the various medical providers might cost more than the case is worth. What is the most important thing for me to do after my injury? Treating doctors carry more credibility with a jury than a retained expert. Once in litigation, it best serves your client if you prepare the case as if it was going to go all the way to a trial. What they ask you to do? Code of Civil Procedure section 2025.620, subdivision (d) states: Any party may use a video recording of the deposition testimony of a treating or consulting physician or of any expert witness even though the deponent is available to testify if the deposition notice under section 2025.220 reserved the right to use the deposition at trial, and . The outline included is not meant to be a comprehensive outline of all possible Sec. Did they ask you to appear at a future trial of this case? 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. {{h6;un%BN&{Z That is what the medical record is for. For each examination I revise them to fit the particular situation involved. Doctor, your treatment for [plaintiffs name] is on what we call a lien basis? Life expectancy impacted? 40, No. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. Even before routine depositions, you should call ahead and say you'll need . Even without expert testimony, the plaintiff's case should be made with the defendant's deposition. So in basic terms, a finding is something the doctor can see for himself, and a symptom is something the doctor is told exists? Did you meet with any lawyers prior to the deposition? A. A deposition is a process whereby witnesses provide sworn evidence. Use the few hours you have to educate the doctor and the jury in a manner that allows you to frame client-friendly lines of questions. It may also be tape-recorded or video taped. Rule 32 of the Federal Rules of Civil Procedure governs the use of a deposition at trial. What are they? What conclusions, opinions did you reach and what do you intend to testify to at trial? Hospital privileges ever denied? 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. Did the deponent bring an electronic copy of the file also? Because this unconventional, outside-the-box approach to corporate depositions has created a shift in the way plaintiffs lawyers take depositions. 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. Ask whether their hospital privileges have ever been suspended or provoked. These treaters do charge a deposition fee that can range from $300 per hour to over $2,000 per hour. 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