The physician/defendant may also be deposed by your attorney; however, as the plaintiff, you will be required to give your deposition first. During a deposition, attorneys for both sides are present. Expert witnesses may also be present, depending on the exact nature of your claim.
Full Answer
The lawyers seeking to depose you will ask for copies of your medical record. If a fact witness, you are required to testify factually about your care of the patient but are not required to give expert or opinion testimony outside the scope of your care. In short, the law will not allow anyone to force you to be his or her expert.
“Usually, the plaintiff’s attorney should take the deposition of their client’s treating doctor.” In most cases, for plaintiff’s attorneys, a powerful settlement tactic is to take the deposition initiative. Prepare the main treating doctor for a deposition, and promptly schedule and depose that treating doctor.
Here’s what the insurance lawyer will do. During a deposition of the treating doctor, the insurance defense lawyer on cross-examination will review the history and physical doctor notes, and go painstakingly through every detail. The lawyer will try and be clever, however, as they will only pick out the tests, body parts, diagnostic studies and any comments that are helpful to their goals …
Jun 20, 2019 · 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 plaintiff’s theories and to share ...
In most cases, for plaintiff’s attorneys, a powerful settlement tactic is to take the deposition initiative. Prepare the main treating doctor for a deposition, and promptly schedule and depose that treating doctor. This proactive tactic leads to better settlements for the plaintiff.
Executive Summary. Plaintiffs counsel should routinely strive to increase settlement value. (They don’t tell you about this in law school.) Most cases are settled, not tried. So use a standard medical deposition and trial testimony outline checklist format and routinely take the deposition of your plaintiff’s main treating doctor. It pays.
In contrast, the plaintiff’s attorneys only rarely take the deposition of the treating doctor. Moreover, at the defense’s deposition of the doctor, the plaintiff’s counsel makes little or no attempt to ask questions. Certainly, most average plaintiff-side litigators make no attempt to do a full scale direct examination of their doctor after the defense has finished its adverse examination at the deposition. Average plaintiff’s counsel leave the doctor’s direct testimony, in its most powerful form, unknown to defense and the insurer.
You create the option, if needed, to use the deposition at trial as forceful direct testimony.
Average plaintiff’s counsel leave the doctor’s direct testimony, in its most powerful form, unknown to the defense insurer. The insurer gets only a cross-examination managed by their defense counsel in a deposition, followed by a little “rehabilitation” the plaintiff’s attorney inserted into the defense deposition.
It is an error for plaintiffs to so proceed. Leaving defense counsel and the insurer thinking that the doctor will not be effective at trial does not bring dollars to the settlement table. Most cases are settled, not tried. Therefore, it is generally to the advantage of the plaintiff to disclose the treating doctor’s direct testimony during the course of discovery in as forceful and positive a manner as possible.
During a deposition of the treating doctor, the insurance defense lawyer on cross-examination will review the history and physical doctor notes, and go painstakingly through every detail. The lawyer will try and be clever, however, as they will only pick out the tests, body parts, diagnostic studies and any comments that are helpful to their goals and the issues that have absolutely nothing to do with the injured body part hurt in the wreck. They will ask the most mundane questions about unrelated tests and body parts that were unaffected by the trauma to your patient. They’ll ask you if a test is negative, and follow up with the statement, “And that’s a good thing, isn’t it doctor?”
A: It is a good thing to not be knocked unconscious, yes sir.
First, it shows that the documents were shown in a vacuum, without regard to context or content. Second, it provides you, the questioner, an opportunity to bring the line of questioning back to the documents that doctors are most familiar with—medical records—and show , by analogy, that a single document, standing alone, does little to educate the physician on the issue at hand.
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.
Back in the day, one of the first topics covered at the deposition was the physician’s credentials. After the Notice of Deposition is marked and covered, per tradition, the next exhibit would have been the physician’s curriculum vitae, which would have been covered from A to Z. Medical school, internship, residency, fellowship? Check. Board certified? Check. Privileges in hospitals in the area? Check. Published on the topic? Check. 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.
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.
So what about us defense lawyers? Should we, as practitioners of one of the other learned professions, likewise move out of our comfort zones and embrace changing practices, thoughts or ideas? 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 adopting—or even considering—different litigation practices and techniques. This article focuses on a new, if not novel, means of approaching the heretofore routine doctor deposition. 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. We would all agree that such a result est bonum.
Of course, a revolutionary, game-changing deposition may not be possible with every case. It is certainly not possible with every doctor, as some may have developed steadfast views against our product before we even serve the Notice. But it doesn’t mean we shouldn’t try.
Instead, you should use your own style. The ideal bedside manner for a doctor in deposition is conversational style. That isn’t to say that the deposition is like a conversation — it isn’t. But when you listen to your own voice when in relaxed conversation, pay attention to the pauses, the emphasis, and the natural highs and lows of your voice in your natural register, and that is the sound that you should aim for in your deposition.
Depositions are taken in order to shape an adversary’s case, and to be used one day by a potential fact finder. In our experience, jurors have a natural inclination to support the doctor.
Plaintiff’s counsel wants you to think you have no chance. Targets of physician lawsuits can have an image of the out of control jury, driven by sympathy and aiming toward perceived deep pockets. The hope is that nervous defendants will be rattled by the deposition and immediately believe they should settle the case. But the data on what happens to physician lawsuits doesn’t bear out that fear.
An open-ended question followed by silence can be enough to induce a gregarious or simply nervous witness to just keeping talking, providing long and unfocused answers, and giving the adversary the opportunity to fish for comments and admissions that help the plaintifff’s case.
Recent data from the Physician’s Insurance Association of America (that we wrote about in this post ) backs up the notion that jurors tend to support the doctor. While many cases are filed, only 20 to 30 percent result in any kind of payout, and the great majority of those are relatively modest settlements. Only one percent of cases filed make it all the way to trial and a plaintiff’s verdict.
Instead, you should speak for yourself. One of the most critical habits for deponent witnesses to develop is the habit of answering in your own words. Simply saying “yes” or “that’s correct” leaves the choice of language to opposing counsel, and that choice isn’t neutral. Jurors will also expect a credible doctor to be an authoritative source of information, and you don’t get that by just being a rubber-stamp “yes” to the attorney’s language. As often as possible, answer questions briefly, but in a complete sentence.
Once a patient-physician relationship has begun, a physician is said to "abandon" a patient who still needs medical attention when the physician refuses to continue treating the patient (i.e., severs the physician-patient relationship) without giving the patient proper notice and an adequate amount of time to find another physician who can take over the patient's care. Medical abandonment can form the basis of a medical malpractice case. Read on to learn more.
However, if the physician never formally terminated the physician-patient relationship, then, depending on the circumstances, the patient may have a reasonable expectation that the physician will continue to treat the patient.
A physician-patient relationship can be properly terminated in the following ways: 1 The physician and the patient mutually agree to terminate the relationship. 2 The patient unilaterally dismisses (fires) the physician. 3 The physician terminates the relationship after giving the patient notice and a reasonable amount of time to find another physician.
For a patient who is actively treating for a condition, a physician must: give the patient proper notice that the physician is terminating the physician-patient relationship , and. give the patient sufficient time to find another physician before finally refusing to treat the patient any further.
The physician terminates the relationship after giving the patient notice and a reasonable amount of time to find another physician.
Giving proper notice to a patient usually includes telling the patient, either on the phone or face to face, that the physician is terminating the physician-patient relationship and writing the patient a letter confirming the termination. The letter should be sent by certified mail, return receipt requested. The physician should not just say to the patient, "You're fired. I don't want to see you anymore." The physician should tell the patient the reasons why he/she is terminating the relationship.
Let's say that a physician stops seeing a patient without giving proper notice, and, as a result, the patient goes without medical treatment for three months. As a result of this three month gap in treatment, the patient is left with a permanent disability.
A hospital may be responsible for the negligent care by an independent contractor physician if it granted that doctor privileges while knowing that the doctor had a bad record and presented a risk to patients. In other words, the hospital negligently entrusted patients to a risky doctor’s care and should be held responsible when ...
As you can see, the more control that a hospital has over a physician’s work , the more likely that the hospital and doctor have an employer-employee relationship.
As we stated above, a hospital may be liable for a doctor’s negligence – even if the doctor is an independent contractor – if the hospital fails to inform you that your doctor is not an employee, and it reasonably appears to you that the doctor is an employee. You may be able to file a medical malpractice claim against the hospital regardless ...
Whether a doctor is an “employee” or “independent contractor” can be a critical issue in medical malpractice lawsuits in the District of Columbia and elsewhere. Remember: If a doctor is an actual or apparent employee, the hospital could potentially be liable for the doctor’s malpractice. However, if the doctor is an independent contractor, the hospital could not be held liable for the doctor’s negligence. However, the hospital could still be liable for its own negligence.
A hospital may also be held liable if it negligently brought aboard a doctor as an independent contractor without doing an adequate background check. Some doctors may have a disciplinary record or a history of medical malpractice payouts. A hospital may be liable for exposing patients to a potentially dangerous doctor.
This may be true even if the hospital does not consider the doctor to be an employee. In Maryland, Washington, D.C., and many other jurisdictions, you can sue an employer if one of its employees commits negligence which harms you – as long as the employee is working within the “scope and conduct” of employment at the time of the negligent act ...
This is especially true if the hospital denies that the doctor is an employee. You will need help from an experienced lawyer who can sort ...
Your doctor’s office should provide you with this. If your provider denies your request, it must provide you with a denial letter. The letter should tell you how to appeal, but also realize that you can get the medical records with a subpoena after you initiate a lawsuit.
1. Make a list. Medical malpractice cases are among the most complicated cases to pursue, so you will need a lawyer. Check your Yellow Pages for attorneys, and perform a web search. Type “lawyer,” “medical malpractice,” and your city into your favorite search engine.
Documenting your injury is the most important thing you can do to build a strong medical malpractice case.
If the medical treatment aggravated a prior injury, your claim could be worth less because the jury may decide that the prior injury is to blame for your pain and suffering. How sympathetic the plaintiff is. If the plaintiff has a criminal record, then the amount of damages awarded could be lower.
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Also look to see how professional the website is. An attorney whose website is replete with grammatical errors may be careless in his representation of you.
Gather a complete set of medical records for your trial, including radiology reports, notes from your doctor, and reports from third-party medical professionals who you visited. You should call your doctor to ask about the specific procedure, as some doctors use third parties to store records.