Five Tips When Preparing for Treater Depositions

Depositions of a plaintiff’s treating physicians can be critical to your defense of a product liability case. To obtain helpful testimony, you should thoroughly and thoughtfully prepare. Here are five things to keep in mind when preparing for these important fact (and maybe expert) witness depositions. 

Identify Key Treaters

A plaintiff’s written discovery responses are only a starting point for identifying key treaters for depositions. As you obtain and review a plaintiff’s medical records, keep track of each potential key treater’s specialty, employer, role in the plaintiff’s treatment and care, and dates and duration of treatment. And, importantly, flag unfavorable or favorable pertinent snippets from appointment, progress, operation, and/or treatment notes. These snippets may reflect the type of testimony you are likely to get from each treater during their deposition.

Additionally, your plaintiff and other fact witnesses may mention additional key healthcare providers during their depositions. Consider asking your retained consultants and experts for their opinion on which treaters should be deposed and/or which treaters they want (or need) to hear from to form their own opinions.

Reach Out Early and Often

Before reaching out to treaters to schedule a deposition, make sure you understand your jurisdiction’s rules on having ex parte conversations with treaters. Often it is best practice to have a non-attorney from your firm contact treaters’ offices, and you may choose to let opposing counsel know your office will be contacting treaters to schedule their depositions.

Your office should reach out to each treater’s office promptly after you decide that you will depose them. Initial calls are often met with hesitance by the treater’s staff. In the first overture, you should inform them of who you represent and that you are seeking the treater’s deposition as a fact witness related to their care and treatment of the patient. Try to put the treater or their staff at ease by stressing they are not a defendant in the case. Keep in mind that some treaters require depositions be requested by written correspondence and some treaters will refer you to their attorneys for further communication regarding the deposition. Also, some treaters—as practicing health care providers—have limited time and/or designated times for depositions. For example, a treater may sit for depositions after 4:00 pm on Tuesdays and Thursdays only. Be prepared to make yourself available at the treater’s convenience, whether after business hours, weekends, or otherwise, at a location they prefer. Note that many treaters request an hourly rate for their testimony.

Prepare a Notice and Subpoena

Like with other depositions, you will prepare a notice of deposition and serve it according to applicable rules. And, if there are any items you want the treater to bring with them to their deposition (e.g., a CV and/or the plaintiff’s full medical file), attach that request as part of your notice of deposition.

Be sure to consider whether you need to serve a subpoena on the treater, who is not a party to your case. In most jurisdictions, a notice of deposition is insufficient to guarantee that the treater will appear. If you do decide (or need) to go the subpoena route, you will want to discuss your plans with the treater’s office, including whether the treater will agree to accept service via email or mail, so that you can avoid personal service at their office.

Create a Comprehensive Outline

This is the key to getting the testimony you need for your defense. A comprehensive outline will include questioning on these topics: (1) the notice of deposition and accompanying document requests; (2) the treater’s preparation for the deposition; (3) the treater’s communications with plaintiff or their counsel; (4) the treater’s background, including their education and work history; (5) the treater’s typical treatment practices; (6) the treater’s treatment of plaintiff; (7) causation; and (8) the plaintiff’s claims and damages. Your outline will also incorporate use of exhibits. Also prepare a list of “key points”—testimony you cannot leave the deposition without. Be sure to consider whether you want to use the treater as an unretained expert witness; if so, determine what questions you need in your outline to obtain that helpful “expert testimony.”

Be Strategic About Timing

Timing is everything. You should consider whether you want to take the treater’s deposition before or after certain other fact witness depositions. Sometimes it makes sense to depose a treater after the plaintiff’s deposition, so you can lock down informed consent issues and/or damages. Also be sure to schedule the treater’s deposition well ahead of the discovery deadline, so you have time to follow up on testimony that yields other avenues of discovery you need for your case.