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any advice? I was dropped from a lawsuit. They still want A deposition from me
Of course we are asking malpractice lawyers advice. Was hoping to get advice from someone else who has been in this position.
Without saying too much, I was involved in a case where i read an imaging exam and correctly made the salient finding. Unfortunately, this finding had been missed recently and in my opinion is partly what resulted in a bad outcome. In my report, i just stated the facts (and documented communication with ordering provider) without throwing the other rad under the bus, of course.
I was initially named in the lawsuit. I have since been dropped (months ago). I thought i could stop worrying about this. I have since been notified that they want a deposition from me regarding my interpretation of imaging report. Reading through the lawsuit complaint, its still riddled with obvious errors- the type of errors where you can tell the person who wrote it has never worked in healthcare.
Any advice while i wait for our lawyers to respond??
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15 Replies
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Having been in this situation, my advice would be to put it out of your mind as much as possible until you speak to ‘your’ (meaning MP insurance company’s) attorney and the deposition is scheduled.
Mostly, plaintiff’s counsel wants it documented and confirmed about what you saw on your study. They’ll also likely try to cajole and/or browbeat you into commenting about things outside of the study you reported. I would expect that plaintiff’s counsel will ask you to look at previous study where the salient abnormality you reported was present. A typical entrance point to this might be “Doctor, you note in your report that you compared [study you interpreted and signed off on] to [prior study where important finding was missed]. Was [important finding] present on the prior study?” Discuss with ‘your’ attorney how to handle this but what I’ve done in that situation was to politely decline any requests to respond/comment on studies that I have not interpreted and signed off on. Plaintiff’s counsel can hire their own <expletive deleted> expert witness and pay them accordingly. During the depo, respond/comment about your interpretation only.
Do not comment about treatment options and/or standard of care regarding treatment.
Do not comment about acuity, time severity, or if/when appropriate treatment should have been instituted.
Do not in any way offer or infer your opinion that the prior missed finding/misinterpretation was “…partly what resulted in a bad outcome.”
BTW, the errors and problems with the legal filing you refer to may have been intentional. Don’t put it past a lawyer to play stupid, giving you a false sense of superiority, and hoping that you’ll give in to the urge to ‘school’ him (and in the process offer up lots of professional opinions about parts of medicine which you have no particular expertise, other issues regarding the case that might prove fruitful for plaintiff’s case, etc.). Expect that opposing counsel will play dumb during the actual deposition.
It’ll feel weird at first b/c most of us want to be “helpful” which is an urge that lawyers exploit to their advantage. Give them just the facts, they can hire their own “help”, and let the legal system do it’s thing.-
Quote from Dr. Joseph Mama
Having been in this situation, my advice would be to put it out of your mind as much as possible until you speak to 'your' (meaning MP insurance company's) attorney and the deposition is scheduled.
Mostly, plaintiff's counsel wants it documented and confirmed about what you saw on your study. They'll also likely try to cajole and/or browbeat you into commenting about things outside of the study you reported. I would expect that plaintiff's counsel will ask you to look at previous study where the salient abnormality you reported was present. A typical entrance point to this might be "Doctor, you note in your report that you compared [study you interpreted and signed off on] to [prior study where important finding was missed]. Was [important finding] present on the prior study?" Discuss with 'your' attorney how to handle this but what I've done in that situation was to politely decline any requests to respond/comment on studies that I have not interpreted and signed off on. Plaintiff's counsel can hire their own <expletive deleted> expert witness and pay them accordingly. During the depo, respond/comment about your interpretation only.
Do not comment about treatment options and/or standard of care regarding treatment.
Do not comment about acuity, time severity, or if/when appropriate treatment should have been instituted.
Do not in any way offer or infer your opinion that the prior missed finding/misinterpretation was "…partly what resulted in a bad outcome."
BTW, the errors and problems with the legal filing you refer to may have been intentional. Don't put it past a lawyer to play stupid, giving you a false sense of superiority, and hoping that you'll give in to the urge to 'school' him (and in the process offer up lots of professional opinions about parts of medicine which you have no particular expertise, other issues regarding the case that might prove fruitful for plaintiff's case, etc.). Expect that opposing counsel will play dumb during the actual deposition.
It'll feel weird at first b/c most of us want to be "helpful" which is an urge that lawyers exploit to their advantage. Give them just the facts, they can hire their own "help", and let the legal system do it's thing.
Thanks. Yes my initial thought was why dont they just hire their own expert. I want to be done with this. Ill try not and worry too much.
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Talk to your medmal insurer to assign an attorney. It is possible that you are required to submit to a deposition as a fact witness.
In the deposition:
– you do not have any opinions,
– you do not express any opinions,
– you do not admit to any knowledge of the case beyond what is on your film,
– you do not comment on what is in the prior film.But the atty is going to prep you for all that. Its gonna be on zoom and its gonna be short. Resist the urge to call the plaintiff attorney a incompetent scumbag to his face. It’s understood that he is, but it’s not accepted to say it out loud.
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Just like you were dropped from the lawsuit, you can be added back on (unless it is with prejudice).
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All good advice.
They will try to have you opine against other specialists.
That is not my specialty, I do not feel comfortable speculating as to what a *name specialist* should have done
Act professional, humble yet confident. If present well, and you dont offer them any benefit, they wont want you to testify in front of a jury. They might even give up on the deposition early. Depositions/testimony can go sideways and backfire, so a smart attorney will know when to stop fishing. Thats probably what they are doing with you; fishing.
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I AM NOT A LAWYER
Make sure they state in writing that you are a fact witness – not an expert opinion. If they’re calling you as an EO, charge them $2000/hr.
Show up.
Read your report back to them.
That is all.-
A lot of good advice in these posts. Ill be out of this game very soon, but I will print out your responses for my physician child (non radiologist) for future reference.
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Listen to your lawyers advice.
You will probably talk to the remaining defendants lawyer if you have not already.In general, the plaintiff lawyers mission is get you to say that the prior unreported finding is visible in hindsight and not reporting it was a deviation from the standard of care.
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Message
Listen to your lawyers advice.
You will probably talk to the remaining defendants lawyer if you have not already.In general, the plaintiff lawyers mission is get you to say that the prior unreported finding is visible in hindsight and not reporting it was a deviation from the standard of care.
And if a question posed is outside your area of expertise, say so.
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Someone on these forms once said that a useful phrase about anything, not directly pertaining to the content of their report, was I have not formed an opinion about that
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You do know, don’t you, that by writing this post, including your assessment of the effect of your partners interpretation, it is now all discoverable. If you are subpoenaed you will be asked under oath if you have ever discussed this case with anyone, and you may be asked if you have posted on social media.
will you lie and say no, or will you be truthful and say yes. You will then be asked to produce the conversation.
do not write these things on social media. This is how people get in trouble. only talk to your attorneys with privilege. Further, you are asking a bunch of amateurs for opinions they are not expert in. Do attorneys ask other attorneys for medical advice? No. With reason
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Quote from Phil Shaffer
You do know, don’t you, that by writing this post, including your assessment of the effect of your partners interpretation, it is now all discoverable. If you are subpoenaed you will be asked under oath if you have ever discussed this case with anyone, and you may be asked if you have posted on social media.
will you lie and say no, or will you be truthful and say yes. You will then be asked to produce the conversation.
do not write these things on social media. This is how people get in trouble. only talk to your attorneys with privilege. Further, you are asking a bunch of amateurs for opinions they are not expert in. Do attorneys ask other attorneys for medical advice? No. With reason
I think it is a problem that docs are not allowed or discouraged to ask for general advice from other docs regarding these types of situations (which could be hypothetical) as this is a scenario that any rad may encounter. It’s nice to hear what your peers have to say about these GENERAL situations (without specifics)- as I can related to other rads and docs more so than lawyers. Of course I will be talking with an attorney and weigh their advice appropriately.
And yes other attorneys ask other attorneys for medical advice…. the general population does as well (e.g. “what was your experience with your knee replacement like? how long did it take for your incision to heal and swelling to go down?”). There is nothing wrong with doing so either as long as you weigh the advice appropriately and seek expert advice as well.-
Unfortunately, this finding had been missed recently and in my opinion is partly what resulted in a bad outcome.
Any plaintiffs attorney would love to get this on discovery. That would be his whole case. And they can ask you about it and compel you to produce it.Any time you are involved in an action, your attorney will tell you “do not discuss this with anyone, except me”. There is a very good reason for this. You do not really need inexpert opinions from other docs which necessarily cannot include local factors, such as the judge, the opposing counsel, etc. No real good can come of discussing it with colleagues.
I HAVE been asked under oath if I discussed the case with anyone, or wrote anything to anyone about it. To which I could say “No”. Also if you say you discussed it with a colleague -they may get hauled in to testify to what you said to them.
Understand my goal in posting this is to increase the general legal sophistication of the people reading these posts, and to warn you you are on thin ice. That is the entire reason I took time to write these posts.
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Quote from Phil Shaffer
You do know, don’t you, that by writing this post, including your assessment of the effect of your partners interpretation, it is now all discoverable. If you are subpoenaed you will be asked under oath if you have ever discussed this case with anyone, and you may be asked if you have posted on social media.
will you lie and say no, or will you be truthful and say yes. You will then be asked to produce the conversation.
do not write these things on social media. This is how people get in trouble. only talk to your attorneys with privilege. Further, you are asking a bunch of amateurs for opinions they are not expert in. Do attorneys ask other attorneys for medical advice? No. With reason
All that.
– don’t ask a partner to pull up the case
– don’t call up the referrer to find out moreYou may get quizzed about all this and your colleagues may not be thrilled to get subpoenaed about a case they had no involvement in.
Now, if you find out about a case before there is litigation you can talk to parties involved as part of QA and peer review activities. But don’t put any statements about it on paper or the internet.
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I almost did speak with a partner about it too! i thought I was free and clear for the last 6 months!!! I havent given enough specifics anywhere
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