Deposing a Treating Physician - Part Three

After the court reporter swears in the doctor, consider working off the following outline.

First, review the contents of the physician’s file and do an inventory of the file, keeping an eye out for the following:

* patient questionnaire
* letter of protection
* correspondence from counsel
* notes, letters from patient
* other physicians’ records
* physician notes
* medical bills

Review subpoena and ensure doctor brought everything you asked for.

Review physician’s notes and address the following:

Review favorable notes/opinions, including:

* pre-existing conditions
* favorable opinions
* patient compliance/non-compliance
* improvement in condition
* prognosis
* admissions by patient

Attack unfavorable notes and opinions, by confronting physician with:

* records indicating pre-existing conditions
* surveillance video
* his prior depositions
* his writings
* your medical research (excerpts from texts; medical journals)

If his opinions were favorable:

* review his credentials (C.V.) and qualify him

*confirm his opinions were "within a reasonable degree of medical probability"

If his opinions were unfavorable address:

* his credentials (wherever they may be lacking)

* priors cases where his opinions were stricken or expertise questioned

* whether his license has been suspended/curtailed/revoked

* whether he has been the subject of an investigation by:

* his medical board

* medicaid

* medicare

* other
* subject of any medical malpractice suits

* subject of any administrative proceedings

* subject of any lawsuits (other than malpractice)

* whether he is a hired gun (expert for every season)

* whether he ever taught on the subject of opinions

* whether he ever has written on subject of opinions

* whether he has ever taught courses on subject of opinions

* whether he has ever been qualified on subject of opinions

* testimonial history (depositions/trial)

* prior work as expert

When you feel you are done with the deposition, go through the following checklist before adjourning. Have you:

* Reviewed all his opinions?

* Reviewed basis of all his opinions?
* Ensured you have all his records and have reviewed them?

In many ways, deposing a physician is no different than deposing anyone else. It all comes down to preparation.

Deposing a Treating Physician - Part Two

In addition to learning the medicine, you need to learn everything you can about the doctor. Treat him like you would treat an expert witness and perform the same due diligence. When investigating a physician’s background, consider the following:

Prior depositions. Use expert deposition services, voluntary bar associations’ deposition banks and your own firm’s deposition bank to procure prior deposition transcripts of the physician.

Practitioner profile. Most states have departments of health which keep track of their physicians. They have information about the doctor’s education, training, board certification and disciplinary history. Procure a copy in each state where the doctor is licensed.

Physician’s website. More and more physicians have websites where they post their curriculum vitaes, their articles, their areas of speciality and testimonials from patients. Take some time to study the doctor’s website.

Advertising. Other than the website, review any online advertising for the physician and review the brochures he leaves in his waiting room.

Curriculum vitae. Review the physician’s CV and see where he went to school (did he leave the country to go to medical school), what he specialized in, what lectures he has given and what articles he has written.

Physician’s articles. Locate on Medline or elsewhere copies of the physician’s articles relevant to the plaintiff’s condition, treatment and prognosis.

Litigation history. Locate the clerk of courts’ sites in the jurisdictions where the physician practices and view the docket sheets of any malpractice suits naming the physician.

Once you have done your due diligence on the doctor, it is time to put together a binder you will take with you to the deposition. You will want to include in the binder: (1)notice of deposition; (2) return of service; (3) practitioner profile; (4) background search; (5) all impeachment materials; (6) all anatomical drawings you intend to use as exhibits; and (7) bate-stamped copy of the medical records. These will be your tools for the deposition.

In the next entry, I will discuss what to include in your deposition outline for the physician.

Deposing a Treating Physician - Part One

If you are defending a personal injury matter, the time will come when you will depose one or more of plaintiff’s treating physicians. Before you depose them, consider the following:

Should you set the deposition? Before you depose a treater, you must first decide whether you should depose him. In reaching this decision, ask yourself: Do his records support your case? Do they advance your case themes? Do they contain admissions by the plaintiff? Are his notes illegible, requiring a deposition to understand them? Does plaintiff list him as an expert? Do you expect him to testify at trial? Remember, that by deposing a physician, you are preserving his testimony, so have a good reason for doing so.

Learn the Medicine. If you decide to depose a physician, procure all of the plaintiff’s medical records and prepare a medical chronology. As you review the records, learn the medical terms you come across and learn how to pronounce them. You can use online medical dictionaries such as:

http://cancerweb.ncl.ac.uk/omd/

http://www.nlm.nih.gov/medlineplus/mplusdictionary.html

In addition to learning the terminology, learn the medical conditions at issue. Review medical texts and medical journal articles and use online sites such as:

http://www.merck.com/mmpe/index.html

http://www.medscape.com/home

Invest in yourself, and purchase several texts to facilitate preparing for medical-related depositions, including a medical dictionary, the pocket physicians desk reference and the Merck Manual. If you depose psychologists and psychiatrists, procure DSM-IV.

In the next installment, we will address how to investigate the background of the treating physician and what to bring to the deposition.

Finding the Perfect Expert

The perfect expert is preeminently qualified, is a leader in his field, has no skeletons in his closet and makes a great witness at trial. Finding him takes time and effort. To track him down, I would suggest the following:

Enlist your firm. Start your search by asking for recommendations from the attorneys in your firm.

Enlist your friends. Form an e-mail list of colleagues with whom you have gone to school with, worked with, served on bar associations with, etc. This list will serve you in many ways, including requests for experts.

Enlist bar associations. Many bar associations have expert databases. Some allow you to e-mail members, asking for expert recommendations.

Use Westlaw. Do a jury verdict search for the category of experts you are looking for. Not only will you find several prospects, you will see the types of verdicts with which they were associated.

Use the internet. Google the type of expert you are looking for and see what names come up.

Visit Barnes & Nobles. Visit Barnes & Nobles website, type in the subject matter for which you need an expert, and see who has written text books on the topic. For example, the expert you need to evaluate a party’s closed head injury may have written three text books on the topic, and is considered the foremost expert in the field.

Enlist experts. When you call prospective experts, ask them whom they consider to be leaders in their field. Whom do they consider authoritative? Whom would they call if they had a question?

Do your due diligence. Once you have several prospects, you need to make sure the expert fits the bill. Make sure to:

1) Review his curriculum vitae.

2) Review relevant publications cited in the curriculum vitae.

3) Read at least one of his prior depositions.

4) Review prior reports he has prepared.

5) Check Westlaw to see if his opinion has ever been stricken.

6) Do an article search.

7) Do a background search.

8) Ask for references of others who have retained him. Ask the references how the expert performed and whether they discovered any skeletons in his closet.

9) Ask the expert the hard questions (Has he ever been convicted? Has he ever had his opinion stricken? Has his license ever been revoked or restricted? Has any board or association ever reprimanded him? Are his credentials legitimate?)

10) Do a Google search to see if the expert has ever been written about in chat rooms, message boards or elsewhere.

The right expert can make the difference between winning a case and losing it. The same can be said about the wrong expert. Take your time and do your diligence to ensure the expert you are hiring is the best fit for your case.