Medicolegal Issues

Deposition Minefield


 

One day, you’re sitting in your office when a stranger appears and asks, “Are you Dr. Smith?” When you say yes, the stranger hands you a sheaf of papers. You open the papers and see you’ve been “commanded” to attend a deposition at a lawyer’s office next week. How do you prepare?

The Basics

Black’s Law Dictionary gives a long definition of a deposition. But the shorter, more practical definition is that a deposition is a witness’s sworn out-of-court testimony. When a physician gives a deposition in a lawyer’s office, this testimony has the same legal effect as though the physician were testifying in court.

Lawyers typically view depositions as one of two types:

  • Discovery depositions: These allow lawyers to discover the substance of a witness’s testimony before trial. They can touch upon a number of subjects that seem tangential to the case. A lawyer taking a discovery deposition is putting together the pieces of the case and may or may not ask the witness to testify at trial; and
  • Perpetuation depositions: These let lawyers present the testimony of a witness who cannot appear at trial. Perpetuation depositions substitute for the examinations and cross-examinations that would normally occur in the courtroom. Perpetuation depositions are generally shorter and more focused than discovery depositions.

In all depositions, lawyers ask questions of the witness and can object to legally improper questions. The lawyers can ask the witness to refer to documents or other exhibits during the deposition. A court reporter will transcribe the questions and answers and condense them into a written transcript. A judge is normally not present for a deposition but can be called during the deposition to make rulings.

Weigh Your Answers

Know Your Role

Perhaps the most important thing you can do in preparing for a deposition is understand your role in the lawsuit. Generally, physicians serve in one of three potential roles as deponents:

Medical malpractice defendant: When a patient sues a physician for malpractice, the patient’s attorney normally will take the physician’s deposition. In this highly adversarial process, the patient’s attorney attempts to demonstrate that the physician’s negligence injured the patient. A physician being deposed as a defendant must prepare by meeting with his attorney and reviewing the issues likely to arise during the proceedings. If you are a defendant in a lawsuit, you must set aside adequate time to prepare for the deposition with your attorney;

Retained expert witness: The rules of evidence allow people with specialized knowledge to testify as experts in fields normally beyond the average juror’s experience. Because they have specialized knowledge, experts are allowed to state opinions in their testimony, such as whether a physician’s conduct complied with the applicable standards of care. Attorneys generally hire expert witnesses to present opinions in a case and will provide a summary of the expert’s testimony before the deposition; and

Treating physician: Many physicians are deposed concerning the care they provided to a patient in lawsuits that implicate the patient’s health (auto accident, work injury, disability suit). These depositions focus on the substance of treatment, the patient’s medical condition, and the patient’s prognosis. The physician normally does not have any interest in how the lawsuit is resolved. A treating physician is often compensated for his time in the deposition, even though he was not retained as an expert to testify in the lawsuit.

Golden Rules

Because depositions are stressful, lawyers ask witnesses to remember only three rules.

Tell the truth: Your only job as a witness is to tell the truth. If you follow this rule, you have discharged your obligation to the legal system.

However, keep some things in mind when telling the truth. In particular, your ability to tell the truth is subject to the limitations of your memory and the fact that your deposition may be occurring several years after you provided care. “I don’t know” and “I don’t remember” are absolutely acceptable answers in a deposition. In fact, they are preferable to inaccurate or untruthful testimony. If reviewing a document (such as the patient’s medical records) will help you provide accurate and truthful testimony, don’t be shy about asking to review them. In any situation where you are guessing or providing your best recollection, make sure the lawyer knows you are doing your best but that you can’t remember all the details.

Make sure you understand the question: This rule seems self-evident, but many lawyers ask convoluted or compound questions. Lawyers may also use language unfamiliar to you as an outsider to the legal process. For example, when lawyers use the phrase “standard of care,” it has a fairly precise definition (it is an action a reasonably careful physician would undertake under the same or similar circumstances). Ask for clarification of any question that is not clear. It’s the lawyer’s job to ask an understandable question, not the physician’s job to answer a question that doesn’t make sense. Be extra careful when the opposing lawyer objects to a question. While the lawyer’s objection does not relieve you from answering, it should signal you that the question is potentially flawed or beyond the scope of your knowledge.

Answer only what you’re asked: Invariably, physicians struggle most when they don’t focus their answers on the question posed to them.

The majority of questions in a deposition can be answered “Yes,” “No,” “I don’t know,” and “I don’t remember.” Yet many physicians tend to volunteer additional information to explain their answers. Because lawyers are trained to recognize and follow up on nonresponsive answers, the physician’s deposition becomes longer and more challenging. To provide a better answer, don’t think out loud. Ponder the question and mentally prepare your answer. Doing so lets you respond more precisely. Answer only the question you are asked. If there is an area that needs more explanation, the other party’s attorney (or your attorney) will have an opportunity to allow you to clarify the record.

To help you follow the rules, use this decision tree during your deposition (see Figure 1, left).

Regardless of the purpose of a deposition or your perceived role in it, consult with an attorney before being deposed. Even if you believe you are being deposed only as a treating provider, a deposition could lead to potential claims or raise concerns about your records. If served with a subpoena, contact your insurance company, which may retain an attorney to assist you. TH

Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.

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