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In addition to providing deposition testimony as a defendant and/or retained expert, physicians are frequently required to provide testimony as a patient’s prior or subsequent treating physician. Many times, treating physicians are required to testify in a lawsuit filed by their patient against another healthcare provider. Physicians frequently have questions regarding their role and obligations in this situation. 

The attorneys are interested in your testimony because, as a treating physician, you may have first hand knowledge about your patient’s condition at a particular point in time and with respect to a particular condition. This information helps the lawyers evaluate the patient’s claimed injuries and monetary damages. 

Additionally, the lawyers are eager to determine whether you have formulated any opinions  which ultimately impact the standard of practice of the defendant healthcare providers in the  lawsuit. As a treating physician, the law in California gives you the right to render a standard of care opinion. However, you want to be careful in doing so. Remember, bad outcomes are not indicative of negligent care and treatment. Also consider whether you have sufficient information to render such an opinion. Before rendering a standard of care opinion, it is usually necessary to have knowledge of the defendant’s version of the events and to have reviewed the complete records of the defendant.Without this complete review, you will subject yourself to rigorous cross examination if you provide standard of care opinions. 

Occasionally, lawyers involved in the case want to develop information to determine whether you should be included in the lawsuit also. 

Physicians want to know whether they can speak with the lawyers informally in an effort to avoid the deposition process.You may speak with your patient’s lawyer if the patient has given permission for you to do so; however, this does not guarantee you can avoid the deposition process. The lawyers representing other parties are not entitled to speak with you directly.  They can only question you through the formal deposition procedure. 

Some physicians prefer not to speak with their patient’s lawyer and to only provide information through the deposition process. This ensures that all parties involved in the litigation receive the same information at the time same. It avoids any possibility that the physician will be misquoted and, in most cases, eliminates any appearance that the treating physician is a litigation advocate for the patient. 

Providing deposition testimony is frequently stressful and, obviously, time-consuming.  In California, you are entitled to monetary compensation for the time you spend in the deposition  if the questions require you to provide medical opinions.Any opinions you provide regarding  diagnosis, prognosis, and treatment options are deemed to be medical opinions. In that situation, the attorney who noticed your deposition is responsible for paying you the usual and customary fee in the community. It is your responsibility to establish a reasonable fee—this will avoid the court setting the fee.

It is appropriate for you to advise the attorney scheduling the deposition of your fee and to request payment at the beginning of the deposition. Payment should be based on the lawyer’s estimate of the time needed for deposition. If the deposition exceeds the time estimate, you are entitled to be reimbursed for the additional time within five days after the deposition is completed. 

It is important that you educate yourself as to the process and don’t hesitate to ask for help.  Many professional liability insurance companies are willing to provide their insured with legal representation when the insured is deposed as a treating physician. Representation is always a good idea because the attorney understands your rights and responsibilities and is able to “control” the deposition process.

This article appeared in the March 2006 issue of MD News Magazine.

Sheila S. Trexler is a shareholder at Neil Dymott and concentrates her practice on the defense of healthcare professionals and medical facilities. For more detailed information, Ms. Trexler may be reached at (619) 238-1712 or strexler@neildymott.com.

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