Lawsuit question

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odieoh

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I was wondering if anyone has any experience with depositions. I'm involved in a lawsuit (Not as a defendant, thankfully) because a pt of mine had visual complications after neurosurgery, and I was the first to see him/define what was going on. I have a deposition this week and I don't really know what to expect.

First off, I was contacted by my patient's lawyer. We set up a time for the deposition, where lawyers for both sides will be present, but he wants to talk to me ahead of that to "go over a few things." Is it unusual that I'm talking to one lawyer but not the other ahead of time?

He also asked me to let him know what my rate is so I can get paid for my time. I have no idea what a reasonable rate would be. I also wonder, if he is paying me does that make me a "witness for the prosecution" or whatever? I would prefer to remain impartial and not be necessarily testifying "for" or "against" anyone.

Anyone have any experience with this sort of thing? I am not looking forward to it.

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Tread very carefully.

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I would ask for $500-750 per hour.

I assume they will ask you basic questions to establish the nature of the patient's vision loss and if it is attributable to the neurosurgery.
 
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From just an ethical standpoint I would think that your "rate" would be how much you could have made in clinic, if you hadn't been missing work to be at the deposition and the preparation of it.

More than that would seem to be giving you bias; however, I suspect that happens all the time.

However, I have no experience with these things. And I agree with you re: all your concerns.

Does your hospital have a lawyer that you could talk to to ask about these things?
 
Thanks everyone for the replies/PM. As an update, I decided to call my malpractice insurer just to talk it over with their legal department. Again, I'm not named in the suit so there is no malpractice issue for me, but they were very very helpful in answering all my questions and they even offered to have a lawyer come be with me for the deposition.

If anyone is interested, they advised me to, UNDER NO CIRCUMSTANCES, talk to one lawyer or the other alone, which is what I suspected all along. One of their lawyers is going to call me to answer a few other questions, and we'll decide if we want a lawyer present. I imagine it might be helpful just having someone sitting there who can tell me "you don't have to answer that," or whatever, because I know they will try to get me to speculate and/or point fingers.

So yeah, if you ever have a legal question, call you insurer, they are very very helpful, and you're paying them for just that. If you guys want I'll keep you updated on how things go.
 
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Demand to be paid in full before you depose. Get the check before you start (really.) Calculate your rate based on a reasonable valuation of your professional time including all costs and travel time. I would specify a minimum charge in time (say, 2 hours for a local deposition, more if you travel, obviously.)

The plaintiff's counsel is at risk for the costs of discovery until he wins, so he has an incentive to stiff you if the facts of the case do not look favorable to a settlement, which is most likely the endpoint he is seeking.

Just because the patient saw you does not mean you have to be an unpaid expert. Also, make sure your office or you tell them in advance you will collect payment for your estimated minimum charge before the deposition. Don't take no for an answer.
 
So just wanted to update you all, in case anyone is interested. I finally had the deposition, and it wasn't too bad at all. Again, I wasn't a defendant in this suit, so that made it less nerve-wracking than it could have been otherwise.

A few things I thought were interesting:

1. The lawyers from both sides had really had pored over the chart in great detail. They recognized different handwriting on portions of the chart and wanted to know who had written each portion. Somewhat irrelevant now, for me anyway, since my practice has since gone to EMR. They also want me to dictate some of the chart notes for them, since they couldn't read my writing on parts :laugh:

2. I had a lawyer present with me (my malpractice insurance sent one- I'm wondering if they also insure the defendant doctor and that's why they were so eager to have someone there) which was a big help. I met with him about 30 minutes before the actual deposition, and he was very helpful. One thing he pointed out was that he recommended NOT doing a big literature search and having articles and research to refer to. I think this advice was mostly specific to my situation where I am not a defendant- basically he said our goal was to get them to NOT want me as an expert witness at trial (and this one will likely go to trial, unfortunately).

3. I had referred the patient in question to a subspecialist (neuroophth) which was very helpful because basically I just deferred to the subspecialist's opinion on everything. The lawyers on both sides seemed to accept that and didn't push for me to start giving my own opinion.

All in all, it was much shorter than I anticipated, and much less painful/scary. But hopefully I don't ever have to do it again.
 
Thanks for the update. I haven't been involved in such a situation but it's good to know the channels to go through.
 
Not a forum I usually follow, but the title of the thread was intriguing.

A couple of thoughts for those in a similar situation in the future:

1. The ONLY lawyer you talk to off the record is YOURS. Everything you say there is protected by atty/client privilege. Everything else is on the record, no matter what the lawyer tells you.

2. Your should always approach every deposition as if you are being sued. It is a common "lawyer trick" to depose you and say that you're not being sued, then turn around and add you to the suit "because of what came out in your testimony". Sometimes they were planning on suing you all along, but hoped that deposing you would get you to say things you otherwise wouldn't. It's also a common ploy to get physicians to blame each other (and then name both, and admit all the depos as testimony).

3. You should never be an expert, and a witness. If you're an expert, that's your job. If you had anything to do with the patient, you should simply report on what you did and what you saw. No lawyer can make you state anything more than that. They can try, and you can refuse.
 
Not a forum I usually follow, but the title of the thread was intriguing.

A couple of thoughts for those in a similar situation in the future:

1. The ONLY lawyer you talk to off the record is YOURS. Everything you say there is protected by atty/client privilege. Everything else is on the record, no matter what the lawyer tells you.

2. Your should always approach every deposition as if you are being sued. It is a common "lawyer trick" to depose you and say that you're not being sued, then turn around and add you to the suit "because of what came out in your testimony". Sometimes they were planning on suing you all along, but hoped that deposing you would get you to say things you otherwise wouldn't. It's also a common ploy to get physicians to blame each other (and then name both, and admit all the depos as testimony).

3. You should never be an expert, and a witness. If you're an expert, that's your job. If you had anything to do with the patient, you should simply report on what you did and what you saw. No lawyer can make you state anything more than that. They can try, and you can refuse.

Thanks for your input, #2 in particular. I was not aware of that, and probably that is the reason my malpractice carrier wanted to have someone with me. Fortunately in this case I think there is almost no chance of me being named. I was simply the person who first saw and diagnosed this pt after they had a bad outcome, but I was not involved in what led to that outcome. I think they basically were obligated to depose me because of my (limited) involvement, and the whole thing took like 45 minutes.

As far as #3 goes, I think the lawyer was using "expert witness" just as I've written, with air quotes around it. Basically he didn't want me to have anything useful to say for one side or the other. Like you said, only what I saw and what I did and nothing more. I would never want anything to do with being a professional expert witness.
 
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