If your patient was injured in California and has filed a personal injury lawsuit, you are likely to be subpoenaed for a discovery deposition. This article should interest medical professionals not only in California, but also in Southern Oregon who may be treating patients injured in California. Discovery depositions in California differ from the process for obtaining medical opinions as expert testimony in Oregon.
A deposition is testimony taken under oath outside of the courtroom. It is recorded and transcribed, and may also be video-taped, to be used as evidence in court. The expert opinion of doctors is needed most frequently to address 1) the causal relationship between the alleged incident and the claimed injury; and 2) the extent of the “damages” (permanent impairment, pain and suffering, needed treatment, etc.) resulting from the injury.
DISCOVERY
“Discovery” is a pre-trial procedure that allows one side in a lawsuit to find out information about the other side’s case. So, the lawyer opposing your patient’s injury action will subpoena you to come to a deposition. California doctors may be familiar with discovery deposition procedures. In Oregon, there are no discovery depositions of medical personnel, since the “patient-physician” privilege protects the injured party’s doctor from questioning until the injuries are put in issue during trial. So, Oregon doctors whose patients are suing for injuries in California may wonder, “Why am I getting subpoenaed?”
Unfortunately, if you call the attorney who had the subpoena served on you, he/she will not be able to discuss it, since “ex parte” communication (contact with the other side’s witness without the presence of the other side’s legal counsel) is prohibited. Another drawback is that your patient does not know that you have been subpoenaed.
TAKE THE INITIATIVE
If you receive a subpoena for a discovery deposition, you may (and probably should) take the initiative to call your patient and find out how to contact his/her lawyer so you can find out what the issues are and how best to prepare to give your testimony.
At the discovery deposition, the lawyer opposing your patient’s case will question (“cross-examine”) you. The lawyer’s purpose is not only to get information but also to find inconsistencies and other weaknesses in your patient’s case.
BEING PREPARED
You will want to be sure you know exactly how your patient was injured, so you can explain and defend your opinion as to how the incident caused the injury (or injuries) you are treating. You should be aware of any pre-existing medical conditions or injuries bearing on the injury in issue. You will want to review your patient’s other medical records; your patient’s attorney can obtain copies for you. You should be prepared to discuss how the injury has affected your patient’s quality of life and ability to work — past, present and future. You will want to find out if the other side has hired a medical expert to oppose you, and, if so, what that medical expert’s opinion is — so that you may better defend yours. You should obtain and review the reports of any independent medical examiner(s).
Meeting with your patient’s attorney to review your patient’s records and discuss anticipated deposition questions and issues is very important to giving effective expert testimony at the discovery deposition in your patient’s injury case. Your deposition statement may be the most important evidence in your patient’s case.
DEPOSITIONS: OREGON VS. CALIFORNIA
Oregon doctors who treat or examine injured workers may be familiar with the deposition process since Workers’ Compensation law provides for depositions as part of the administrative review process. However, the issues of causation, damages and future medical expenses differ between work injury cases and negligence (“personal injury”) cases, as explained in articles in Volumes 10 and 13 of the MEDICAL-LEGAL JOURNAL.
Also, at personal injury trials in Oregon, depositions of medical witness testimony may be presented in lieu of live testimony in the courtroom. The entire deposition must be placed in evidence, either by someone reading a transcript of the deposition into the record or by presenting a videotape of the deposition in court. (For a more detailed discussion of the advantages and disadvantages of deposition vs. live testimony in Oregon personal injury trials, see the article “Testifying in Your Patient’s Personal Injury Case: Some Considerations,” in the Winter 1998 issue of the MEDICAL-LEGAL JOURNAL, [Vol. 11].)
This differs from the use of discovery depositions in California. A discovery deposition need not be placed in evidence. Usually only excerpts are placed in evidence, most often to challenge the credibility of the doctor’s live testimony in court or to undermine the injured party’s case in some other way. Since inconsistencies between your deposition statement and your testimony in court may be used against your patient, it is best to be fully prepared at the time of pretrial discovery deposition.
While pre-trial discovery depositions are not allowed in Oregon, the lawyers opposing an injury claim may obtain the injured person’s medical records prior to trial. In California cases, the opposing side may both obtain medical records and subpoena the doctor for a deposition.
KEYS TO EFFECTIVE PREPARATION
In summary, careful review of not only your own medical records but of your patient’s other relevant medical records and meeting with your patient’s attorney to discuss potential issues are key elements in preparing for both discovery depositions and trial testimony in California and for trial testimony in Oregon.
This article was prepared by Dennis H. Black.