Some time ago plaintiff lawyers experienced a problem in Washington State when treating doctors refused to meet with or discuss their patient’s case with plaintiff lawyer. Some insisted they would not meet at all and some would only meet if “their” lawyer was present. It made no difference if the doctor was provided all the legally required medical release documentation. In some cases it was a policy the majority medical malpractice carrier had adopted as a policy for it’s medical insured’s and in some cases it was risk management at hospitals or medical clinics who were behind the policy. The result was having to depose treating doctors without having talked to them informally.
The other day a colleague reported that her client’s treating doctor had adopted this position with her. I went over my past notes and I am providing a discovery outline preamble in such a case. My opinion is that a physician who takes this position is no friend of the patient or lawyer so I’m not concerned about “alienating” them. I want a good record at deposition for use at trial if I have to take the witness on and I want to be in a position to lay a foundation if it is the right way to deal with trial testimony. Plus, it might intimidate the physician into honest testimony.
PREAMBLE TO DEPOSTION OF TREATING DOCTOR WHO REFUSED TO
MEET WITH PATIENT’S LAWYER
A. DOCTOR – PATIENT RELATIONSHIP INVOLVED
1. (NAME) Is your patient?
2. When first became patient?
3. Still your patient as of today?
B. AMA CODE OF MEDICAL ETHICS
1. Do you agree that the medical profession is obligated to follow ethical standards which are primarily for the benefit of patients?
2. Do you agree that a physician has a responsibility to patients first and foremost?
3. Do you agree that the practice of medicine in the clinical relationship between patient and physician is fundamentally a moral activity?
4. Do you agree that the relationship between a patient and a physician is based upon trust?
5. Do you agree that the physician’s ethical obligation is to place the patient’s welfare above the physicians own self-interest?
6. Do you agree that patients have the right to be advised of any conflicts of interest their ` physician may have in respect to their care?
7. Do you agree with this principle of medical ethics: A physician shall, while caring for a patient, regard responsibility to the patient as paramount?”
8. Do you agree that medical evidence is critical in a variety of legal and administrative proceedings?
9. Do you agree that as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice?
10. Do you agree that when a physician testifies about their patient’s care and treatment, they must hold the patient’s medical interest’s paramount by delivering honest testimony?
(NOTE: THESE ARE BASED UPON THE AMA CODE OF MEDICAL ETHICS:)
 The AMA’s Code of Medical Ethics offers ethical guidance for the medical profession and centers on the physician-patient relationship. It sets ethical guidance to how physicians should interact with patients. The AMA believes all physicians should uphold the ethical standards set forth in the Code. First developed in 1847, the Code is regularly updated through reports and opinions of the Council on Ethical and Judicial Affairs (CEJA). CEJA’s role is to analyze and address timely issues confronting physicians and the medical profession.
 The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As an American Medical Association are not laws, but standards of conduct that define the essentials of honorable behavior for the physician.
 member of this profession, a physician must recognize responsibility to patients first and foremost, as well as to society, to other health professionals, and to self. The following Principles adopted by the
 The practice of medicine, and its embodiment in the clinical encounter between a patient and a physician, is fundamentally a moral activity that arises from the imperative to care for patients and to alleviate suffering.
 The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest
 Physicians can best contribute to a mutually respectful alliance with patients by serving as their patients’ advocates and by respecting patients’ rights. These include the right: …
(h) To be advised of any conflicts of interest their physician may have in respect to their care.
 VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.
 Medical evidence is critical in a variety of legal and administrative proceedings. As citizens and as professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice
 Physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient’s medical interest’s paramount by: (e) Delivering honest testimony. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case.
C. REFUSAL TO MEET
1. You are aware I am the attorney for your patient?
2. On (TIME FRAME) I provided you with all legally and ethically required documents authorizing you to share medical records and medical information about (NAME) with me to assist in their legal claim?
3. You are not being sued in the legal action, are you?
4. Your patient requested that you cooperate with me as their attorney regarding your medical care and treatment of (him/her)
5. You knew I was your patient’s lawyer when I contacted you?
6. I asked to meet with you to discuss your patient’s care to assist with the legal claim?
7. However, you refused to meet with me or discuss the patient care unless legally required to do so by subpoena or legal deposition?
8. As a result, I had to legally require you to testify here today under oath about your patient?
D. REASON FOR REFUSAL
1. Did you talk to anyone about whether you should meet with me or discuss the case before you refused to do so?
(2) How many times?
(3) What was discussed?
(4) Why did you refuse to help your client by discussing the care with their lawyer?
E. FOLLOW UP DEPOSITION
Here you would proceed with the informational part of the deposition.
Post Script: A lawyer I respect asked why I just didn’t ask the reason the witness refused to cooperate. Here’s my response: It depends entirely on your style.
Mine is to always focus on credibility in cross. Witness might have a credible reason or give short explanation. Witness may give negative testimony about patient. I really am not interested in the simple reason. That’s not my focus. I want enough fundamental concessions about fiduciary duty to patient and conflicts of interest (insurance or risk management issues) to hammer the witness with at trial if required. Either way the witness responds to the ethics questions gives plenty of room to do this at trial. A denial would be worse that a yes answer. The way I want to structure my exam is to have jurors seeing their doctor on the stand and how they would want their doctor to act and respond.