VIII Preparing the Treating Physician for Discovery Deposition Testimony

LibraryThe Direct Examination of the Plaintiff's Treating Physician (2017 Ed.)
VIII. PREPARING THE TREATING PHYSICIAN FOR DISCOVERY DEPOSITION TESTIMONY

Preparing your client's treating physician for testimony begins with the first correspondence counsel has with the doctor. Medical doctors generally dislike lawyers. However, the treating physician should see his patient's lawyer as part of the same team that cared for the plaintiff in the months or years following the collision. To this end, the treating physician should know that the plaintiff's attorney will appropriately compensate the doctor for her time; that every effort will be made to schedule discovery and evidence depositions at convenient times and that the doctor and her staff will otherwise be treated with the respect they deserve as professionals who, like you, are engaged in the cause of helping the plaintiff.

Tending to the relationship with treating physicians is not merely the right thing for a professional litigator, it has benefits. Every witness' testimony - and tendency to cooperate in offering the testimony - is influenced by the witness' attitude toward the party (and the attorney) who is trying to procure the testimony. A reluctant witness forced on to the stand by a subpoena is less likely to give favorable testimony. The witness will resist efforts to elicit favorable testimony and enjoy the cross-examiner's effort to shoot down the theories espoused by the wretched attorney who served him with a subpoena. With these general truths in mind, plaintiff's counsel's relationship with the treating physician should be managed to be professional and friendly. Fostering such a relationship will maximize the chances that the doctor will testify with the desire of fully and accurately conveying the medical evidence that supports your client's claim.

When the discovery deposition is scheduled, the doctor's office staff should be reminded that you are the patient's lawyer and you wish to meet with the doctor before the deposition. I am careful to refer to myself as "your patient's lawyer." I often thank the doctor and the medical staff for taking good care of the client. While the defense will typically be obligated to pay for the treating doctor's time at the discovery deposition, you may well be asked to pay for this time preparing. Such a request should be met with your enthusiastic agreement. I often ask if we send a check now or bring it to the meeting to prepare, perhaps before the deposition.

Again, if the doctor has been helpful to the client and has a good...

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