DEPOSTION OF TREATING DOCTOR WHO REFUSED TO MEET WITH PATIENT’S ATTORNEY

Have you had the experience of your client’s physician refusing to meet with you or discuss your client’s medical treatment? While it doesn’t happen frequently, in my experience, it has happened. Your choice is to schedule a deposition of your own client’s treating doctor if you want information. It also presents an issue of what to do at trial when you have to subpoena the reluctant doctor to testify. It will be obvious this is not a friendly witness, What can you do?

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In the absence of other solutions, my approach is to expose the situation if the testimony is needed. At least the jury will understand the bias of the witness. Here is one way to approach the issue. It’s is far from perfect, but you may find some ideas that are useful. I base it on the American Medical Association Code of Ethics https://www.ama-assn.org/delivering-care/ethics/code-medical-ethics-overview. This is the part of the deposition relating to the refusal. The balance would address the client’s treatment facts. I’ve set out the AMA Ethics Code for reference, not necessarily part of the questioning.

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A. DOCTOR – PATIENT RELATIONSHIP INVOLVED

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1.(NAME) Is your patient?
2.When first became patient?
3.Still your patient as of today?

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B.DOCTOR HAS ETHICAL RESPONSIBILITY TO PATIENT

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AMA Code of Medical Ethics

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Code of Medical Ethics Opinion 1.1.1

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 or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare.

1.Isn’t true that the practice of medicine is fundamentally a moral activity in caring for patients?
2.Do you agree the relationship between a patient and physician is based on trust?
3.Do you agree the physician has an ethical responsibility to place the patients’ welfare above the physician’s own self interest or obligation to others?
4.Do you agree a physician has an ethical responsibility to use sound medical judgment on a patient’s behalf?
C.DOCTOR HAS ETHICAL RESPONSIBILTY TO ADVOCATE FOR PATIENT

Code of Medical Ethics Opinion 1.1.3

The health and well-being of patients depends on a collaborative effort between patient and physician in a mutually respectful alliance.

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:

(f) To obtain copies or summaries of their medical records….

(h) To be advised of any conflicts of interest their physician may have in respect to their care.

5.Do you agree a physician has an ethical responsibility to advocate for their patient’s welfare?[1]
6.Do you agree the health and well being of patients depends upon a collaborative effort between patient and physician in a mutually respectful alliance?
7.Do you agree patients have a right to obtain copies or summaries of their medical records?
8.Do you agree physicians, as citizens and professionals with specialized knowledge and experience, physicians have an obligation to assist in the administration of justice?[2]
9.Do you agree whenever physicians serve as witnesses they must accurately represent their qualifications?[3]
10.Do you agree whenever physicians serve as witnesses they must accurately represent their qualifications?[4]
11.Do you agree that physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient’s medical interests paramount…?[5]
12.Do you agree that whenever physicians serve as witnesses they must deliver honest testimony by continuous self examination to ensure their testimony represents the facts of the case?[6]
D.DOCTOR REFUSED TO MEET WITH PATIENT’S LAWYER
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.Your patient requested that you cooperate with me as their attorney regarding your medical care and treatment of (him/her)
4.You knew I was your patient’s lawyer when I contacted you?
5.I asked to meet with you to discuss your patient’s care to assist with the legal claim?
6.You are not being sued in the legal action, are you?
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8.However, you refused to meet with me or discuss the patient care unless legally required to do so by subpoena or legal deposition?
9.As a result, I had to legally require you to testify here today under oath about your patient?

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E.REASON FOR REFUSAL

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1.Did you talk to anyone about whether you should meet with me or discuss the case before you refused to do so?

(1) Who?

(2) How many times?

(3) What was discussed?

(4) Why did you refuse to help your client by discussing the care with their lawyer?

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  1. Code of Medical Ethics Opinion 1.1.1

    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 or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare

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  2. Code of Medical Ethics Opinion 9.7.1

    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.

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  3. Code of Medical Ethics Opinion 9.7.1

    Whenever physicians serve as witnesses they must:

    (a) Accurately represent their qualifications.

    (b) Testify honestly.

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  4. Code of Medical Ethics Opinion 9.7.1

    Whenever physicians serve as witnesses they must:

    (a) Accurately represent their qualifications.

    (b) Testify honestly

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  5. Code of Medical Ethics Opinion 9.7.1

    Physicians who testify as fact witnesses in legal claims involving a patient they have treated must hold the patient’s medical interests paramount

  6. Code of Medical Ethics Opinion 9.7.1

    Whenever physicians serve as witnesses they must (e) Delivering honest testimony. This requires that they engage in continuous self-examination to ensure that their testimony represents the facts of the case.

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About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, member of the National Trial Lawyers Hall of Fame & speaker at Spence Trial College
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