Advice for upcoming deposition

[Soggun]

Hello all. I'm looking for some advice about an upcoming deposition that I was recently contacted about.

To make a long story short, I have a patient who is going through a contentious divorce and, as part of their divorce proceedings, custody of their children is being decided in court.

My patient's attorney contacted me to schedule a time for me to be deposed by opposing counsel and also to let me know that I will be asked to be in court in approximately 1 month for about an hour.

Having no experience with being deposed or in court, I'm looking for a little guidance about what to expect. I also have a few specific questions: Whether or not I should get my own counsel and, if so, what type of attorney to retain? Can I charge for my time for the deposition and/or to attend trial and, if so, what are reasonable rates to request and who would be paying me?

Or - anything else that you all can think of that might be helpful for me!

Thanks!

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[PsyDr]

1) Determine if they are asking you to be a fact witness or an expert witness.

2) If they are wanting you to be an expert witness, decline. Expert witnesses can offer opinions, so long as they are made based upon scientifically based, validated, testable, and replicable methodology with a known error rate. It would be unlikely that you used this methodology in clinical work. Also, the rates of malpractice suits in this practice area are high. And the APLS specifically cautions, "A treating psychiatrist should generally avoid agreeing to be an expert witness or to perform evaluation of his patient for legal purposes because his forensic evaluation usually requires that other people be interviewed and testimony may adversely affect the therapeutic relationship.”. Also: some malpractice carriers have riders which require you to inform them about such things.

3) If you are a fact witness, you are limited to what is in the notes. They will try to get you to offer an opinion, many times. The correct answer is generally "that was not covered in my note".

4) Some states allow for fact witnesses to bill for their time. Some states don't.

 

[TexasPhysician]

I would decline. Your deposition as a fact witness will not be helpful and could hurt the treating relationship.

You are a fact witness here as you are treating the patient. As a fact witness, you can basically read the chart when asked. As you haven’t likely done an evaluation for custody, any questions on such I would answer -“I have not performed an evaluation for custody. I have no opinion on this matter.”

Opposing counsel will not play nice.

Refer to forensic psych for custody evaluation.

 

[ThrowawayShmoaway]

Out of curiosity, can someone's psychiatrist really be deposed during a divorce/custody battle?? Why isn't it covered under HIPAA and/or doctor-patient confidentiality?

 

[Sushirolls]

The correct answer is "C"
A) Show up and answer questions without refrain as though the legal counsel is an old friend.
B) Ignore it all, as lawyers and doctors are like oil and water. They do not and should not ever mix.
C) Look up the phone number of your liability insurance carrier, and talk with their counsel.
D) Send a letter to the parents of the child and ask each other, "Umm... 'scuse me? WTH?"

They will answer your questions and guide you on how to proceed. Some sort of response will likely be needed, but could be as simple as a written letter.

 

[splik]

I would try to get out of this if you can. You don't need an attorney (you aren't on trial), but if you have questions you should contact your malpractice carrier. If you work for a hospital or group practice with legal counsel you should contact them. Some physicians are surprised to learn their employers already calculate set rates for medicolegal work (for my friend it was 800/hr).

You can absolutely charge for lost income as a fact witness. so whatever the maximum hourly rate you charge for clinical work is your hourly rate for this (i.e. somewhere between $300-600/hr depending on what your clinical rate is. Do not charge as an expert witness however, i.e. if you say $1000/hr, you will piss off opposing counsel and they could potentially get a subpoena from a judge for your deposition at a much lower rate not of your choosing). The deposing attorney should send a check in advance, or at the very least bring it to the depo or trial. They know physicians are idiots so might be taken aback by you asking to be compensated for time away for you practice (which is what the money is for, not for your testimony), but you absolutely should request it before your deposition or testimony (you will never get it after). If its more than they were expecting, and they are doing it on the cheap, they might think twice about deposing you.

As mentioned above, you should not prepare for this. Your testimony should be limited to the medical record which you should bring with you (assuming you have a subpoena duces tecum). Answer the questions. No more. No less. "I don't recall" and "I don't know" will suffice most of the time. The patient's attorney will be present and will likely object to inappropriate comments from the attorney.

Clinically, you should discuss this with your patient, and how it might affect your relationship. Explain what you are going to say, and explain you are not going to be rendering an opinion about her parental fitness or who should get custody etc. If her attorney is any good, they should already have copies of your notes and reviewed them.

 

[TexasPhysician]

You can absolutely charge for lost income as a fact witness. so whatever the maximum hourly rate you charge for clinical work is your hourly rate for this (i.e. somewhere between $300-600/hr depending on what your clinical rate is. Do not charge as an expert witness however, i.e. if you say $1000/hr, you will piss off opposing counsel and they could potentially get a subpoena from a judge for your deposition at a much lower rate not of your choosing). The deposing attorney should send a check in advance, or at the very least bring it to the depo or trial. They know physicians are idiots so might be taken aback by you asking to be compensated for time away for you practice (which is what the money is for, not for your testimony), but you absolutely should request it before your deposition or testimony (you will never get it after). If its more than they were expecting, and they are doing it on the cheap, they might think twice about deposing you.

This is not true across the board. It is considered unethical to bill as a fact witness in my state. It is considered a physician duty. You are only allowed the daily court pay of roughly $16/day. You can be reported and punished by the medical board for billing as a fact witness or trying to convert yourself from fact to expert witness.

 

[PsyDr]

You can absolutely charge for lost income as a fact witness. so whatever the maximum hourly rate you charge for clinical work is your hourly rate for this (i.e. somewhere between $300-600/hr depending on what your clinical rate is.

That very much depends on the state. Some states have codified fact witness fees, with the payment being less than many would pay for dinner. There is also case law showing that nonpayment is a civil matter and may not be something the bar will do anything about.


The entire section 201 issue (i.e., is such payment a bribe) as to whether being paid for fact witness preparation has been interpreted by the ABA as being fine, although case laws has consistently shown that one has to show WHY the fee is reasonable. Simple billing opens one up to nonpayment, without said justification.

 

[notdeadyet]

Agree with the advice to check with your malpractice carrier and (if applicable) risk management.

Whether you can bill for you time depends on your state of practice.

You do not need a lawyer.

Testify only as to what is in the written note. When asked questions that pertain to information not in the note, you can give answer such as “that was not within the context of this appointment.”

If you are asked questions specifically about suitability for parenting or other custody-centric questions, I would reply along the lines of “treating psychiatrists have formal relationships with only one party in these cases and therefore we don’t form opinions such as these.”

When subpoena’d, I have also contacted both lawyers in the case and explained that my testimony would be limited to the contents of whatever records are in the case file and will not be forming or providing opinions beyond that. If they require opinions beyond that, I’d recommend they contact and independent and third party forensic psychiatrist.