I added a page to keep track of all the posts – see the link to the right.
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I was back in Vinny’s waiting room the following week. We were going to walk to the deposition together.
He busted out of the waiting room door with a big smile on his face. “Ready?” He asked.
“Yeah, can’t wait. Kind of like going to get my teeth drilled.”
Once again, the wind blasted us as we walked down the street. I had no idea where I was going, but with Vinny as my tour guide, all I had to make sure to do was avoid losing him. During our walk, he made small talk about another malpractice case he was dealing with. After the physician’s deposition, the insurance company was in a “settlement posture.” Apparently the physician was difficult to understand and had a thick foreign accent. He would make a “poor witness” at trial. “Unfortunately, juries around here just are not very forgiving of foreign doctors.”
Funny, I always thought malpractice was about the appropriateness of care.
Two blocks north, one block to the west, third building to the right.
We were officially in the enemy’s lair.
In the waiting room, there were four other people. They all stood up and shook Vinny’s hand when we entered. Then they all began chatting about “lawyer” stuff. I sat in a chair and watched.
“Can you believe Judge Smith’s ruling last week?”
“Oh I’m sure that Jerry will appeal it.”
“You don’t want to get on Smith’s bad side though. I heard that he got mad at an attorney and made him cancel his honeymoon trip to Greece to show up in court for a hearing.”
“Ah, you just have to milk his ego.”
This must be what it’s like when a bunch of doctors get together at a party – only we talk about wacky patients, funky x-rays, and all the lives we save.
An older man in a designer suit with a Rolex watch rattling around on his wrist opened the waiting room door and greeted everyone. That must be “the enemy.” It was. The plaintiff’s attorney. The thing that struck me most about the plaintiff’s attorney was his smile. When he showed his teeth, it reminded me of the caricature of the Grinch. Never got that picture out of my mind.
I have to admit that I got a little miffed when all of the other attorneys went up to him and shook his hand, then began joking around with him. How could someone that was supposed to be helping me be so friendly and nonchalant with the person that’s trying to bankrupt me?
The Grinch led us back to a large conference room in his office. Everyone took their seats at the table. I couldn’t help thinking how much money was being spent for all the different attorneys by all the different parties in this case just so this guy could ask me questions.
The plaintiff’s attorney asked me all about my history of employment and my family history. What does my wife do? How many kids do I have? What are their ages? I was already annoyed and the deposition had just begun. What does my personal life have to do with the case? I looked over at Vinny and he didn’t seem to mind, so I bit my tongue and answered the questions.
Then the Grinch started asking questions about how to diagnose the disease that the patient had. What signs are typical of this disease? How does one diagnose it? What should someone do to treat it? I did fine with those questions. So far, so good.
He pulled out a copy of the patient’s chart and handed it to me. Then he picked the medical records apart word by word. He wanted me to comment on pretty much everything that was written in the chart.
“Why did the nurse do this?”
“I don’t know. Ask the nurse.”
Then we got into a discussion about the definition of the term “clinically significant.”
“Was there anything of clinical significance to you?”
“In what sense?”
“Your evaluation of the patient.”
“That would lead me to think what?”
“I don’t know. I’m asking you.”
I could tell that the plaintiff attorney was getting frustrated.
“This is not to try to trip you up or anything. Juries just have to understand your thought processes.”
I felt like rolling my eyes and saying “yeah right” at that point, but I just smiled and nodded my head.
He asked me about the patient’s medications. Did I think he was taking them? How was I supposed to know?
I had to go through every aspect of my physical examination of the patient.
I had to comment on every aspect of all of the patient’s laboratory tests.
After an hour and a half, I needed to use the bathroom and asked for a break.
I got into the bathroom and started going when the door opened up. Vinny came in and stood two urinals down from me. Guys can never stand next to each other in an empty bathroom. It just doesn’t look right.
“So far, you’re doing great,” he whispered.
“What about…”
“Ssshhhhhh!” he interrupted and frowned. “People may be listening.”
I didn’t realize that plaintiff attorneys bugged their bathrooms as one of their sneaky tricks. I opened my eyes really wide, mouthed the word “OK,” and made a big “OK” sign with my hand. He squinted his eyes and frowned at me.
When the deposition started again, the plaintiff attorney got more gnarly. Why I didn’t do this sooner and why I didn’t order that test earlier? Why did I waste time ordering this test when the patient didn’t have the disease? Why didn’t I consult the surgeon as soon as the patient arrived? Initially, it appeared as if he was trying to trick me. But the more he asked the questions, the more I could tell that he really had little idea how medicine works or how to manage a significantly ill patient in the emergency department. Later, Vinny would tell me that the attorney was just “locking me in” to my version of the events so that his hired experts could then retrospectively criticize all of my reasoning.
After another 30 minutes, the plaintiff attorney closed his notebook and said “I have nothing further.”
“Sweet. I’m outta here,” I thought to myself as I pushed my chair back from the table.
Then one of the other attorneys spoke up. I slid my chair back in.
She started asking me all kinds of questions about whether the hospital “controlled my actions.” Like I was some marionette or something. Yeah, just call me Pinocchio. I told her that there were several hospital policies that the emergency physicians were expected to follow. She appeared flustered. Apparently, she just expected me to say “no.”
“Any other ways that the hospital controlled your actions?”
“Well, the hospital sometimes doesn’t have certain medications on formulary, so they routinely switch medications that I order … if that’s the kind of thing you’re looking for.”
She became even more flustered and dropped the issue. Later Vinny would chuckle about that. She was the hospital attorney and was trying to protect the hospital. She ended up doing damage, instead. He quipped that “lawyers shouldn’t ask questions when they don’t know what the answers are.”
Eventually, she settled on showing that I was an independent contractor when I performed services at the hospital.
She also asked me whether I had any criticisms of the nursing staff or the residents. I really didn’t. The nurse and residents taking care of the patient were both top-notch and provided excellent care.
After the deposition, I got a better idea of what the plaintiff was going to allege that I did wrong. I waited too long. I didn’t focus on the right things. I didn’t call consultants as soon as the patient hit the door.
I started to question myself, wondering if maybe the plaintiff was right. My doubts sometimes affected my clinical practice. I noticed that especially with critically ill patients, I tended to worry as much about the potential liability I could incur as I did about the patient’s medical problems. For a while, I found myself practicing defensive medicine – almost as if I would be able to compensate for this lawsuit by being “extra careful” with future patients. Looking back on those times, I can’t think of one instance in which those hundreds of thousands of dollars in extra tests made any difference in the patient’s diagnosis or treatment. All they did was penalize the patients on whom I ordered them.
“How could someone that was supposed to be helping me be so friendly and nonchalant with the person that’s trying to bankrupt me?”
Don’t be such a princess – no one is trying to bankrupt you. And the possibility of bankruptcy is so remote it’s ridiculous.
“I didn’t realize that plaintiff attorneys bugged their bathrooms as one of their sneaky tricks.”
Or, less nefarious – someone might be taking a dump and hear you at the urinal. Don’t be so ridiculous, this isn’t a Grisham novel.
“Bugging the bathroom”
Apparently, you don’t haven’t caught on to the concept of “tongue in cheek humor” yet. Glad you cleared it up for everyone that what my attorney intended for me to understand was that an associate from the plaintiff’s firm could have been hiding out in one of the bathroom stalls for all three hours I was there on the off chance that he might hear juicy tidbits from the defense team.
Lighten up a little, Matt.
Sorry, given the bankruptcy line and the general hysteria and accompanying conspiracy theories and beliefs of most physicians when it comes to malpractice issues, I didn’t expect to see any humor. My bad.
You did pick right up on the “wacky patients, funky x-rays, and all the lives we save” quote, though. There’s still hope for you yet.
Other than the above, and your silly defensive medicine response, that’s a very good picture of what it’s like to be deposed from the perspective of the witness. It sounds like your attorney did a good job preparing you for it.
“only we talk about wacky patients, funky x-rays, and all the lives we save.”
I forgot – this line is comedy gold. Just a bunch of docs, chillin’ and talking about savin’ lives. Medicare reimbursements, greedy patients trying to win the lottery, liability insurance, greedy lawyers trying to screw us, suing the health insurers, overhead costs of a practice, universal healthcare, EMR, computerized medical records, finding good help, those things are unimportant and not worthy of discussion. Telling jokes and saving lives, baby! That’s what we’re all about 24/7!
Just read our blogs . . . wait, don’t.
Matt,
You must be a lawyer. I’m neither a doctor nor a lawyer, but I see why doctors order what are likely extraneous tests when some strutting peacock with a Rolex on his wrist is bent on aiming paid consultants at you in such a deposition. Even WC’s lawyer told him that the point of the whole deposition was to tee him up for the consultants.
I once had a doctor order up an MRI for my kid when she fell off her bike and sort of, maybe, nobody was really sure but there was a shadow on the x-ray that might be a break in her wrist. I vetoed the MRI, had him cast it and everything healed very nicely. She ripped the cast off about 3 weeks early and went out and ran around in the yard for 3 hours with no problem.
The MRI was overkill and I can’t blame the doctor for wanting to do it in this day and age.
Davey, you make a couple of mistakes in reaching your conclusions.
1. You assume that defensive medicine actually reduces risk of being sued, yet there is no evidence it does. In fact, if you listen to physicians you’d think it didn’t, given that they claim there are more malpractice suits yet they practice more defensive medicine. (of course, we’re assuming that we can identify and agree on which procedures may or may not be defensive medicine)
2. You assume all lawyers have a Rolex. Based on average income, a physician is far more likely to be able to afford one as they make about 50% more than lawyers.
3. You misread what he said about the deposition. The point of the deposition, almost all depositions, is to know what the witness is going to say at trial so you’re not surprised. To pin them down to a version of events so they’re not a moving target in front of the judge or jury. Is that testimony reviewed by the various experts on both sides who may be testifying? Of course. That’s why their depositions will be taken as well.
4. Few true trial lawyers will come across as “strutting peacocks” in front of a witness, and certainly not in front of the judge and jury. Particularly lawyers in medical malpractice, given that the physician is usually arrogant enough and it draws a nice contrast. If it’s done in a deposition, it’s done to see if the witness is easily angered or flustered.
Hope that helps.
“Particularly lawyers in medical malpractice, given that the physician is usually arrogant enough and it draws a nice contrast.”
Rather hilarious that you are guilty of the same prejudgments that you accuse docs of having.
“1. You assume that defensive medicine actually reduces risk of being sued, yet there is no evidence it does.”
I doubt that most docs are trying to avoid being sued when they order additional tests. The idea is that when they DO get sued, they can point to enough evidence to demonstrate that they were not negligent–experience and common sense being of lesser value to a jury with no medical education.
I just don’t get all the extraneous, tangential, and totally unrelated questions that get asked at depositions. This blog post just amplifies the need for medical courts and the dispensing of lay juries.
Possibly for the same reason that an investigator administering a polygraph test starts out with irrelevant questions: to get a baseline on how the subject answers non-stressful (or less-stressful) questions before going on to the meat and seeing how s/he responds to those?
So because someone who isn’t a lawyer doesn’t understand the point of everything going on in a legal matter that justifies a wholesale overhaul of the legal system?
That’s like saying because a patient with no medical training doesn’t understand everything that a physician says/does during their visit we should completely revamp medicine.
Keep in mind how Vinny prepped him — the basic advice to deponents is to make them as uncooperative as possible. Don’t volunteer info. Answer only exactly the question asked. If you don’t quite understand the question, remain silent, narrow the question, and answer precisely that. Don’t talk about things you don’t have first-hand knowledge of, even if you’re sure what happened.
Add to that the defense objections — “are you asking him for a medical opinion?” “that’s hearsay within hearsay” etc — and it’s just plain hard to get a straight answer out of a smart, well-prepared deponent.
I can assure you the plaintiff’s deposition, even though they know nothing about the medicine, was similarly very extensive, going deep into their personal lives.
It’s just the way litigation is, nothing in particular against the doctors. Vinny had it right; you’ve got to pin people down to their story or they’ll change it on you.
This chapter makes a good point. The biggest cost of the medmal scam is invisible, and paid by all of us patients. Defensive medicine costs about 10% of the health budget. End of life care costs about 25% of the Medicare budget and tortures old people in their last days. If we could get rid of these weak cases and get rid of the lawyer, the money saved could buy top of the line insurance for everyone uninsured, and still return a bunch of money to employers.
I would like to see patient direct action groups take the fight directly to the lawsuit lotto playing land pirates with the expensive watches.
Matt has yet to reply as to why lawyers should be exempt from legal malpractice claims by adverse third parties. The lawyer has tons of duties to them in the Rules of Conduct, Evidence, Civil Procedure. If torts are so great, why is the land pirate depriving itself from their great benefits?
The doctor with the foreign accent was likely innocent of wrongdoing. His victimization proves the point that he should have hired a private attorney to protect his interest against the insurance hack loser, and against his own insurance company. That attorney could have threatened to file a bad faith claim against the insurer and a legal malpractice suit against the insurance hack loser. The duty of the insurance hack loser is absolutely to the doctor. This traitor should have been reported to the Disciplinary Counsel.
Matt has yet to reply as to why lawyers should be exempt from legal malpractice claims by adverse third parties.
probably for the same reason that doctors can’t be sued by third parties. how many doctors have been sued by a patient’s employer when they took too many sick days because the physician decided to admit them rather than send them home?
BK: I assume you are not a lawyer. If you are a lawyer, [redacted - please no ad hominem attacks]
Assuming you are not a lawyer, we have no problem.
The doctor has no duty to third parties, because that includes the entire world. There have been cases where doctors have been held to have such duties. For example, if a patient threatens a specific person to the doctor. The doctor has to warn the person. The absence of privity was not a defense. It has not been allowed in anyone for over 100 years. The lawyer has dealt itself this obstacle, no one else has it.
The lawyer has explicit case law and statutory duties to adverse third parties. Here is a partial list:
http://supremacyclaus.blogspot.com/2007/05/ending-lawyer-immunity-from-legal.html
It should also be pointed out the doctor, however egregious an error injured a third party, has not set out to do so, and likely does not know of the third party. The lawyer must be controlled because the land pirate injures all defendants, even if the case is dismissed on first pleading. The lawsuit is an inherently dangerous product in its ordinary use.
Well gosh, Matt, you have straightened me right out. Except:
1. I assume nothing about whether or not defensive medicine works. But, according to you in your very own words, the doctors do. I don’t have the knowledge or the training to advise a doctor as to what tests or techniques he should use. And neither does some damn lawyer and his hired gun, months or years after the fact. Any half-wit can sit and say that, well, you should have done X, and just keeping tossing Xs around until one sticks.
2. I assume only that the plaintiff’s lawyer in WC’s post has a Rolex. I declared him to be a strutting peacock, but he very well may be a preening rooster or a posturing fool. I assume you have a Rolex. I accuse you of having a law degree. I assume you got that Rolex by throwing crap at a doctor or other medical professional until something stuck. In other words, I assume you caught the ambulance.
3. Pin him down or tee him up. I say tomato you say tomahtocontingencyfeeplease. I believe that working “To pin them down to a version of events so they’re not a moving target in front of the judge or jury.” would be the same as “tee[ing] him up for the consultants.”
4. RE: Strutting. “If it’s done in a deposition, it’s done to see if the witness is easily angered or flustered.” So, yes, lawyers are strutting peacocks.
I shoulda been a lawyer.
Davey, clearly you’re an expert on, well, everything. I would be foolish to argue with such firm opinions based on so little information. Kudos to you for you’re awesome grasp of legal and medical issues without any apparent training in either!
That’s it?
Dude, I’m no expert on medical or legal matters, but I like to think I can think things through. Doctors deal with hard science and rely on their experience to do their jobs. Lawyers seek to do what I did here; use their opponent’s own words and actions to hang them. And that’s all I did here. Go back and have a look; not one legal or medical opinion in anything I wrote. (BTW, I don’t see any real evidence of legal or medical training in what you’ve written here, either. No latin, no bifurcation, no case law references, none of that stuff you guys use to obfuscate and confuse the rest of us.) I just tried to put myself in WC’s shoes (easy to do; testament to WC’s ability to tell a story) and then respond to your somewhat snide (”Telling jokes and saving lives, baby! That’s what we’re all about 24/7!”) comments. And I used your own words to do it.
And that’s all you got?
Hey Supremacy Clause – are you sure that doctors have no duty to third parties (other than the Tarasoff ruling)?
Wasn’t there a recent ruling in Massachusetts where a suit against a physician by a third party was allowed to proceed because the prescribing physician allegedly did not tell his patient that taking a narcotic could impair his driving?
“That’s it?”
What else is there to say? You’ve clearly got it all figured out, regardless of any particular training or expertise in the subjects you opine on. You know what questions are relevant in a depo and how lawyers act in one. You think lawyers use latin regularly. You know what the sartorial choices of attorneys are. And you apparently know all this after attending and preparing for countless trials and depositions.
How can one argue with that kind of certainty based on that kind of experience?
Another well written part of your trial experience. The comments suck this time, though.
The issue of doctor liability to third parties is discussed here. If you go to the bottom of the page, there is a link to the Massachusetts case, where liability was found.
http://www.ama-assn.org/amednews/2009/06/01/prcb0601.htm
Contrast the rarity of a finding of a duty to third parties, and the narrowness of its criteria. Then see, the long list of statutes and case law enumerating the duties of lawyers to adverse third parties. These represent automatic standards of due care. Their legal enumeration makes them per se. Yet, the biased judges have ignored them all, especially the Rule of Conduct prohibiting the filing of a frivolous claim. That has never been enforced unless the charge was brought by a judge.
Defendants have recourse, but only inside the case, and only with the judge who will never punish the attorneys funding his election campaign, that includes the defense attorney, whose job comes from the plaintiff attorney, not from the client.
He busted out of the waiting room door with a big smile on his face. “Ready?” He asked.
I would prefer if you used “burst out of the…”
Just seems to roll better off the mental tongue.
Steve
DaveyNC,
Matt is a troll. He talks in circles, constantly takes thing out of context, will never directly answer questions. Ever see him engage regularly with Supremacy Clause? No. He is a waste of time. He is [remainder of comment redacted - please, no ad hominem attacks]
Your description of hospital’s counsel and Vinny’s quip are priceless!
I encountered a red-faced n00b with a toddler’s tantrum-y attitude, representing an insurance company at a work comp hearing. He didn’t know what questions to ask, let alone the answers to those questions. The judge was not amused and showed it in his decision.
“experience and common sense being of lesser value to a jury with no medical education.”
What a silly statement.
I enjoyed the post. I was wondering why they ask about your family too. Maybe to get a feel for you..your background -stability in life and to feel you our for how you answer. ?
I learned something new. Didn’t know men can’t stand side by side. Not anything I ever thought about.. but I will sleep better now… tonight.
Must be hard to keep your annoyance in check.
I just want to know one thing…. was your camera with you and did you take their picture?
I like the voting.
Very similar to my experience in a deposition. The lawyers are all friends, and this is just a day at the office for them. It seems wierd to us; it feels as if our entire careers, self image and livlihoods hang in the balance, and the lawyers are yucking it up! However, I liken it to the fact that even after a code blue, or giving patients bad news we still go about our days, laugh with our colleagues, and do our work. The seemingly irrelevant questions are a way for opposing counsel to “warm you up”–according to my attorney–a way to get you used to answering questions.
Very similar to my deposition as well…except that I had been prepped to reach out and shake the plaintiff lawyer’s hand. The witness prep person indicated that depositions were significantly shorter if the deposed moved forward and put out his/her hand for plaintiff’s counsel to shake. It’s supposed to be an I’m not afraid of you gesture.
That notwithstanding, my deposition was videotaped, and plantiff’s counsel could have won an Oscar for theatrics. It was such an unpleasant experience. If not for the clear understanding among everyone involved and everyone questioned about this case (except the family and its attorney, of course), including the medical examiner, who all agreed that the case was an utter tragedy but nothing short of being psychic could have changed the outcome, I would have been much more nervous than I was. I stayed so calm and open that I think he kept trying to rattle me and get me to lose it on video. What he captured instead was my eyes opening wide every time he went off the chain in the deposition, and there were many of those times.
And yes, he strutted in like a peacock and acted like the soulless ghoul he was. I wish I could console myself and say that he was doing it for the family, but since he chose to throw the family under the bus during the process, I know that it was, as I suspected, just about the money.
It is very sad.
OK, Matt, go ahead and call all of us doctors arrogant and rich. I am neither. I’m in debt for a house, student loans, my car and my husband’s truck, etc. I go to work every day trying to do my best, knowing I’m not perfect, and hoping I won’t get sued for being human. I don’t think I’m any better than anyone else. I work in the emergency department where I have to see anyone who shows up including those nobody else wants to see. This guy made THE RIGHT DIAGNOSIS and he still gets his ass handed to him. This is a physician’s worst nightmare. I feel bad for this person and hope I never end up in a similar situation. People who look through the 20-20 retrospectoscope have no clue what we go through every day. Situations like this make us feel like the patient and family are the enemy. Do you really need to ask why?
I actually would call you neither. I don’t even know you. If being sued for something that will be paid for by someone else even in the unlikely event you lose is your worst nightmare then that’s a pretty fine life you got there and you should enjoy it more.