Software documentation systems are designed to provide speedy access to an expanse of information attached to the diagnosis and treatment of an particular individual. The minutiae of data stored by these systems can be nearly indispensable for the defense of a clinic or practitioner who has been subpoenaed for deposition in a medical malpractice suit. For matters involving patient care that was provided years earlier, the historical accuracy of electronically archived data can be particularly helpful.
A deposition is essentially a meeting where all the parties to the lawsuit (via their attorneys) get to ask questions about the facts of the case. This meeting is a question-answer format, and is recorded verbatim by a court reporter (and at times on videotape). The final transcript becomes part of the official record of the case. Therefore, the deposition testimony carries the same weight and penalties as testimony in court. So while depositions are a simple process in concept, it is one of your most important legal events in the case.
While specific preparation is best left in the hands of your counsel, there are five “Cardinal Rules” you should be familiar with to best protect your interests and defend your care in deposition.
Rule 1 – Call Your Insurer and Get Counsel
Notify your malpractice insurance company as soon as you get notice of a lawsuit, or subpoena for deposition. If you are a named defendant, you will soon have a defense attorney. But as a treater, it is important to request the assistance of counsel for your deposition—even if you think, “I can handle this… I don’t need an attorney.” Yes, you do!
Rule 2 – Do Not Underestimate the Importance of Your Deposition
Remember the purpose of the deposition process is twofold: First is to allow “discovery by all parties” of the facts surrounding the care that underlies the lawsuit. The second and equally important purpose is to assess you as a witness. Are you credible? Do you present well? Will a jury like and believe you, or will they discount your testimony and side with the opposition? The impressions you create in depositions can dramatically affect the course of the lawsuit, and significantly influence whether it progresses to trial or not.
Rule 3 – Prepare Prepare Prepare
As was discussed in a prior article, most medical malpractice suits are based on the documented medical records of the patient/plaintiff. Your documentation will be critical to your ability to support the care rendered, and may be your only resource for relating any facts about care rendered to the patient/plaintiff. Review your documentation carefully and thoroughly. Discuss with your attorney whether to review any additional records. It is not always prudent to review additional records, as you might be asked to comment on them. That is not your job.
Work with your attorney in preparing for your deposition. Ask questions. Understand the issues involved in the lawsuit. What is the plaintiff claiming went wrong? Make sure your counsel understands your view of the care you gave, and the documentation you generated. Make sure you understand how your attorney sees the case and your involvement in the care in question.
Most importantly, make sure to allot some time to practicing your responses to questions that will be asked. “Winging it” or “shooting from the hip” is the quickest way to get into trouble in a deposition. Don’t forget, depositions are the lawyer’s “home-field” —not yours. Sharp lawyers are quick to recognize opportunities to explore new potential issues or claims associated with a flippant or “off the cuff” answer. Review your documentation carefully. Know what you want to say, and how you want to say it. Combined with the advice of counsel, you should have a good foundation for performing well in a deposition.
Rule 4 – Answer the Question, and Then Stop Talking
Often, health care providers complicate the issues—or even implicate themselves or others—by providing information that was not asked for. In an effort to give context to an answer, a deponent (that’s you) will sometimes “explain” an answer so that the questioning attorney fully understands the circumstances. Don’t do it! It is not your job to educate opposing counsel. This additional information can lead to new claims, new defendants, or new theories in the case. Answer the question asked, and then stop talking. The World War II axiom “Loose lips sink ships” applies equally to depositions.
Rule 5 – Slow Down
Possibly the best advice for performing well during deposition is to slow down. This allows you to truly hear the whole question and to consider your response. A slight pause before answering also allows your attorney to state any legal objections “on the record” before you provide an answer.
You must fully understand every question before giving an answer. Ambiguous questions often evoke ambiguous testimony, which is usually a bad thing. If there is a word, phrase, or part of a question that you don’t understand, don’t answer it. Tell the questioner that you don’t understand the question and make them rephrase it until you fully understand what you are being asked. You are entitled to a clear and concise question. Don’t try to interpret what they are trying to ask. Your job is to answer clear questions, not to interpret. Make the questioner do their job.
One Final Tip
After the deposition, be certain to review the completed deposition transcript for accuracy. Sometimes, especially with technical or medical jargon, the court reporter may misinterpret a word or phrase that can significantly change the intent of the testimony. Something as simple as transcribing the word “hypotension” versus “hypertension” can affect the substance of your testimony, your credibility, and ultimately the outcome of the case. Take the time to review the transcript before signing it as your official testimony.
This article touches on a few Cardinal Rules of performing well in deposition. The most important message: Don’t take the deposition process lightly—or without preparation and the assistance of counsel. Planning and preparation are the all-important keys to successfully defending your care in deposition.
Kevin A. Duffis, Esq, is a partner in the law firm of Cotkin & Collins, where his practice focuses on medical malpractice defense.