Plaintiffs' Lawyers: Meet With The Doctor

For the plaintiff's lawyer, a lot of the work required for the deposition of a treating physician takes place just before the deposition begins. I'm always surprised by lawyers who do not take advantage of the opportunity to meet with the doctor before the deposition. Even before routine depositions, you should call ahead and say you'll need ten minutes with the doctor. Then prove to him what a nice guy (or gal) you are. If the other side noticed the deposition, tell him the deposition was the other side's idea. Make sure he knows how to get paid for his time. Tell him you hope the deposition won't take very long, but you can't control what the other side will do.

Of course, you should also discuss the more substantive aspects of the doctor's treatment and possible testimony. Some lawyers don’t like to meet with the doctor because they know the conversation isn't privileged, and they think the defense lawyer might learn damaging information by asking questions about the meeting. Always end your meeting with the doctor by telling him that the defense lawyer is entitled to ask what you talked about; if asked, the doctor should answer the questions fully and truthfully. Then let the defense lawyer ask away. I recently had the misfortune, due to my involvement in some specialized litigation, of participating in over a hundred depositions of treating physicians. I can’t remember an instance in which my opposing counsel learned much of value by asking questions about my pre-deposition meeting with the doctor. This might be due to the fact that the defense lawyer also wants to appear to be a “nice guy” and doesn’t want to anger the doctor by bullying him into recounting every aspect of the meeting. Even if the doctor does give a detailed recitation of your meeting, it doesn’t matter, since you’ve prepared the doctor (who hopefully is biased in favor of his patient anyway) to answer these questions in the best light possible.

In summary, use the pre-deposition meeting with the treating doctor to find out where the doctor helps or hurts your case, and to preview his answers to questions he might get from either side during the deposition. Just remember not to say anything to the doctor you wouldn’t want becoming part of his testimony.

Comments

[Ed Smith]

I take issue that what is discussed between treating Dr. and Plaintiff's lawyer is not priveleged.

In most states that discussion may encompass medical conditions protected by the clients right to privacy and the attorney-client privilege.

I have always resisted any attempt by the defense themto probe this area and never had
them force the issue.

I enjoy honestly your site, but feel you are
off base on this.

Ed Smith ATLA member
Sacraento, CA

[Evan]

Thanks for the comment. This site deals mainly with Illinois law. Unless otherwise noted, I'm discussing Illinois law. I know this might cause some confusion, and I admit I don't make this point clear in every post, so I titled the weblog "The Illinois Trial Practice Weblog." Hopefully this avoids some confusion.

I certainly can't speak to CA law. But in Illinois, when you bring a lawsuit about body part A, you waive the privilege about body part A, and perhaps other body part letters as well. Perhaps it's attributable to my days as a defense lawyer, but I don't fight about giving the other side information about medical unless it deals with psychiatric care, in which event I take it case by case. I don't think there is anything to be gained by it in most cases; though if there is something to be lost, I might choose to fight a particular battle, a second exception to the general rule.

As for my conversations with doctors, I don't consider them privileged. (Same goes for my conversations with experts.)

[Evan]

Upon further reflection, I think this blog might benefit from some posts about the waiver of doctor-patient privilege in Illinois, a topic I might tackle in the near future.

I should also note that when I say "I don't fight about giving the other side information about medical," it's with my client's informed consent. I fully respect the doctor-patient privilege, and I think my credentials on this point are pretty clear, given that I was writing about the importance of this issue for newspapers like the Chicago Tribune long before the new federal law was enacted. These articles are collected on my law firm's website at www.riverbendlaw.com.

[Chuck]

I wonder if Mr. Smith could give us some citations supporting his view that conversations between an attorney and a non-party doctor who is about to be deposed are "privileged." It seems to me that if there truly was any privilege to begin with, counsel would have moved for a protective order long before and the deposition would never have taken place.