Our legal system is designed to prevent
surprises by permitting an attorney access to all
pertinent witnesses and evidence - including those
of her opposition. This occurs through the process
of discovery, during which each side may request
and examine the sources likely to be used by the
other in preparing its case. In a malpractice
suit, these will usually
include:
- Medical Records;
- Medical literature;
- Prospective
witnesses.
While your attorney, like the plaintiff’s,
will be obliged to provide access to these
sources, she is not required to reveal the
strategic lines she intends to follow. In fact,
your attorney will make every effort to protect
her own strategy while gaining insight into the
oppositions.
Interrogatories. Early in the
discovery process, each attorney will receive
interrogatories - written questions to which her
opponent expects written replies. Some of these
will be directed at the attorney and will concern
procedural matters, while others will require
response from people involved in the case,
including potential witnesses, the plaintiff, and
the defendant.
Through the interrogatories, you can expect
that each attorney will ask to see copies of any
medical records that her opponent contemplates
using as evidence. Each will request that the
other identify any medical literature she may
cite. And each will also ask her opponent for a
list of potential witnesses, including those that
may be called as medical
experts.
In addition, your attorney may ask the
plaintiff to describe the injury he or she
alleges, and to detail her medical condition both
beforehand and afterwards. The plaintiff may also
be requested to indicate the types of damages
being claimed and the dollar amount sought in
compensation for each.
The plaintiff’s interrogatories may include
some standard form questions about your background
and training. She may ask which records are in
your possession and which were available to you
during the period when the alleged malpractice
occurred. And she will request information about
the procedures you performed and the care you
provided to the plaintiff.
In preparing your answers, you will work
with your attorney. Your attorney will assist you
in crafting a response that is consistent with the
law, with her plans for your defense, and with
your best interests. Both the law and sound
principle require that you give accurate,
forthright answers, and this is what you should do
regardless of the consequences. While it is
possible that a truthful answer will damage your
case, a falsehood documented in the
interrogatories and discovered later may destroy
it.
If you are worried about revealing any
information, tell her why and proceed as she
advises. She cannot prepare to defend a weak point
in your case if she does not know it exists. All
that you say to your attorney is protected by the
attorney-client privilege.
The interrogatories may be accusatory in
tone; they may make assumptions that reflect
negatively on you; and they may implicitly
question your integrity. In some instances, all
this may be intentional. Plaintiff’s counsel may
adopt an aggressive posture because she believes
it will give her a tactical advantage. You can
best deny her that by keeping your emotions under
control and working with your attorney to prepare
appropriate answers.
Depositions. Each attorney may seek
to discover additional information through a
face-to-face questioning of the other’s
prospective witnesses. The procedure for doing so
is the deposition.
A deposition consists of pre-trial
testimony given under oath and governed by the
rules of the court in which the case was filed -
either state or federal. It is taken under oath
and is usually made in the presence of a notary
public or court reporter. The person answering the
questions is called the
deponent.
Reasons to take a
deposition.
To preserve testimony in a case where it is
anticipated that the witness will be unavailable
at the time of trial because of illness, death, or
other reasons.
A deposition preserves the testimony of a
client, adverse party, or favorable witness and
helps prevent faulty memory, unexplainable changes
of heart, or the influence of the
adversary.
It may be used to evaluate an adversary’s
overall case. It is not surprising to find the
plaintiff’s attorney unaware of critical facts in
a case. Depositions help narrow the facts in
controversy for trial. This may facilitate
settlement, when appropriate.
It helps determine whether the adversary or
an unfavorable witness will make a good or bad
trial witness.
It helps measure the type of witness you
will be when on the stand or at
trial.
It may lead to “admissions” from the
adverse party.
It is used to obtain information useful for
impeachment during
cross-examination.
It helps acquire unknown facts. Because of
the opportunity to follow up on avenues of
responses, it allows a fairly broad opportunity to
discover hidden information.
It commits the deponent, whether the
defendant physician, the plaintiff or the expert
witness, to a definite version of the
facts.
It usually determines if all proper parties
are joined in the litigation.
Scope of Questioning. The
questioning, by design, will usually be quite
broad in scope, covering any subject counsel
thinks may lead her to relevant
information.
Who can give a deposition? Anyone
with knowledge relevant to a case may be asked to
give a deposition. In a malpractice case, these
people will usually include physicians expected to
appear as witnesses, other prospective witnesses,
the plaintiff, and the
defendant.
Types of depositions. Deposition
testimony, although given under oath, may be
introduced in court as evidence only under certain
circumstances:
Evidentiary Depositions. If there is
a doubt about a witness’s ability to appear in
court (for instance, because of life-threatening
illness or out-of -state residence), he or she may
be asked to give an evidentiary deposition. It
will be taken with the intent that it is read
verbatim into the trial record.
Discovery Depositions. Most depositions are taken solely for
discovery purposes. They may not be introduced in
state courts unless: 1) the deponent makes an
admission against her own interest; or 2) her
trial testimony contradicts her deposition, in
which case the latter can be used to impeach the
former.
Who may be present at a
deposition?
The deponent
The attorneys representing the
parties
The court reporter who is recording the
deposition
Parties to the
lawsuit
Preparing for a deposition. Now, for the
first time, you will meet the plaintiff’s
attorney, and possibly the plaintiff. Your
deposition will represent a crucial moment in the
litigation process, one whose importance may only
be overshadowed by the trial itself. How you
perform may have a powerful impact on the success
of your defense.
When you give your deposition, you must
assume that plaintiff’s counsel will know a great
deal about the medical issues involved in your
case. In general, she will have studied the
records, reviewed literature, consulted with
medical experts, and developed lines of
questioning she believes will be productive.
Unless you are prepared, you may find yourself at
a critical disadvantage. How should you
prepare?
Consult your attorney. She will tell you what she expects of
plaintiff’s counsel and how you can get ready for
it. Plaintiff’s counsel may be an inexperienced
malpractice attorney with no knowledge of
medicine, or may be a practicing physician in your
own specialty. Counsel will explain to you the
date, time and place the deposition will be taken,
and that the examination will be
informal.
Study the patient’s records. You
will have reviewed these when the claim was filed.
Go through them again and again until you are
prepared for a detailed discussion of them all -
hospital charts, lab reports, your own notes, and
those of your colleagues. It is surprising how
often a small detail in the records can have a
large impact on the case. Ask your attorney which
records to review. She may only want you prepared
to testify to the facts that occurred during your
emergency department visit, not subsequent
care.
Refresh your memory. It is usually
helpful if you have an independent recollection of
the incident. Your testimony will be stronger if
you can recall the specific patient, and the facts
surrounding the alleged negligent incident.
Testimony from a medical record, without
independent recollection, is less convincing, but
often necessary. If it helps, sketch a diagram of
the incident, or return to the scene of the
incident. Your recollection of the facts of the
case may significantly influence the outcome of
the litigation.
Review the standard works of literature
in your specialty. If the procedures you
performed on the plaintiff vary significantly from
the standard literature, be prepared to explain
the reasoning behind the course you followed.
Consult with your attorney before selecting works
to review. She may have reason to steer you
towards some and away from others. She may wish
you to limit the scope of your reading. After all,
plaintiff’s counsel has the right to ask you which
sources you’ve consulted, and by providing her
with a lengthy list you may be saving her the
trouble of conducting her own literature
search.
Attend other depositions. Make a point of
attending the depositions conducted by your
attorney - especially those with the plaintiff and
her expert witnesses. Your presence will inhibit
them from exaggerating and, perhaps, cause them to
reassess their opinions. You will be amazed at
what a plaintiff’s expert will say. You may find
them advocating a position, rather than promoting
justice.
Prepare yourself mentally for the
lines of questioning the plaintiff will follow.
Figure this out before the deposition. You know
far more than the plaintiff’s attorney does, in
most cases. Understand that the plaintiff’s
attorney will be very familiar with the specific
medical facts of your case, but that still does
not approach your level of understanding. A good
way to reduce your apprehension about the
deposition is to know everything you may be asked,
and have answers prepared. If you study the case
carefully enough, you will be able to figure out
the obvious lines of questioning. As your
deposition date draws near, your attorney will
meet with you and help you gather your thoughts on
the issues she expects to
arise.
Deposition Testimony. It is probable that you will give your
deposition in the offices of plaintiff’s counsel.
Your attorney will accompany you and, if
necessary, confer with you during the proceedings.
A court reporter, who will record the questions
and answers, will also be present. Later, you will
have the opportunity to review a transcript of
your testimony and verify its accuracy. Take that
opportunity.
Your attorney will help you
prepare for the specifics. Meanwhile, here are
some general guidelines to follow in giving
testimony.
Give truthful answers -
no less, but no more. As a physician, you are an
educator. Your training and temperament predispose
you to answer a question by examining it from all
sides and offering as much information as you are
able. A deposition calls for you to do precisely
the opposite. It is an adversarial proceeding. You
have been called there by plaintiff’s counsel to
provide information she fully intends to use
against you. Don’t give her any more help than you
must. The law requires only that your answer be
truthful - not exhaustive, nor even extensive.
Confine yourself to responses that satisfy the
law, even if that means answering a question with
a simple “yes” or “no”.
If a question is
ambiguous, ask for clarification. You are
trained to assess and interpret the intent behind
a patient’s question. You need not do the same for
plaintiff’s counsel. In fact, it can be dangerous
to try. Be certain you understand every question
clearly before you reply.
When in
doubt, consult the record. You are not
expected to remember all details of every
patient’s treatment. That is why you keep
sufficient notes. These, along with the rest of
the plaintiff’s records, will be near at hand
during your deposition. Do not rely on your
memory. Stay in control. If there’s something you
don’t recall, say so; if you need to refer to the
records, do so.
Do not acknowledge a
text as fully authoritative unless you are
satisfied that it is. To win her case, plaintiff’s
counsel must demonstrate that you failed to meet
an accepted standard of medical care, and she may
use a well-known textual source as one of the
bases upon which to establish that standard. In
addition, she may ask you to endorse a text that
she plans to use against you. No text is
absolutely authoritative. None can anticipate
every circumstance you can encounter in your
practice. None is universally accepted, and none
is totally up-to-date. Thus, do not offer an
unqualified endorsement of material that may
subsequently be used against you unless you accept
that source as authoritative in all
respects.
Avoid concurring with
generalizations. Beware of questions that begin
with a phrase such as: “Generally speaking,
Doctor...” What’s true in general may not apply to
a given case. By going along with a line of
questions based on generalities or hypothetical
situations, you may find yourself disagreeing in
theory with what you have done in fact. Throughout
your deposition, do your best to stick to the
matter at hand - the condition of a specific
patient and the treatment you
provided.
Beware of leading
questions. Plaintiff’s counsel may ask you
questions that suggest a desired answer. Known as
leading questions, they typically begin or end
with a phrase such as; “Doctor, wouldn’t you
agree?” Again, your deposition is an adversarial
proceeding. If the plaintiff’s counsel is seeking
a specific response on your part, it is more
likely to serve her client’s interests than yours.
Do not agree with a leading question unless you
feel comfortable with where it is leading. Be
guided by its content and meaning, not its
form.
Never lose control of your
emotions. You may find plaintiff’s counsel
becoming repetitive in her questions. She may seem
to badger or antagonize you. She may dispute your
answers, challenging your principles and
competence. While such behavior may simply be her
norm, it may also be premeditated. She is testing
you to see how you react under pressure. If you
lose your composure, she will try to get you to do
the same thing in court, suggesting to the jury
that you behave just as intemperately under the
stress of your emergency practice.
“I
don’t know”, and “I don’t remember” are great
answers. Common sense dictates that you cannot
remember every detail of the case, and you can’t
be familiar with the vast body of literature
relating to the particular clinical entity. The
answer is, an unemotional, “I don’t
know”.
Give no additional
information. Do not volunteer additional
information to a question. You are obligated to
respond only to the specific question that has
been asked. Don’t make any attempt to be helpful,
unless you and your attorney agree, that the
additional information helps your case. Don’t
relate any information you heard from other
persons. Relate only what you know, by what you
heard, say or felt using your own senses. No
guessing or speculation.
Favorable
facts. Questions about favorable facts should
be answered as definitely as
possible.
Don’t exaggerate the
truth. The opposing attorney will usually
discover the exaggeration and later use it to
diminish your credibility. If the jury believes
that you have not told the truth on one point,
they may further believe that you are not telling
the truth about other matters.
“Uh-Uh”
and “Uh-Huh”. You will be warned at the
beginning of the deposition to say “yes” or “no”.
Besides the fact that the court reporter can’t
tell the difference between uh-uh and uh-huh, the
plaintiff’s attorney will love giving you a hard
time about not saying yes or no. This issue alone
may cause great discomfort, and set the tone for
the deposition.
Memorize the record.
Your knowledge of the record will bolster your
case, and help you recognize the plaintiff
attorney's mistakes and weakness.
Let
your attorney make objections. She needs to
make certain points on the record, and she may be
trying to give you instructions in the guise of an
objection.
Beware the “what if” or
“assumed this happened” question. Understand
that you can always say “I don’t know”, or “I
don’t want to guess or speculate”. Thus, you can
avoid this question. Stay in control. You can play
with the question. You can change the facts again.
Or if the hypothetical bolsters your position,
answer it to the best of your
ability.
Stop the deposition whenever
you want to. Get water, go to the bathroom,
make a phone call. You’re in
control.
Prepare for customary
questions.
Curriculum
vitae;
Physical description of the
emergency department, (e.g. layout and patient
volume) at the time of the
incident;
Discussion with anyone about this
incident, or remarks you heard being made by
others at or about the incident;
Who was
present at the incident or has knowledge about
it.
YOUR ADVANTAGE. Your deposition
can be an unsettling experience. As you prepare
for it, you are bound to be at least a little
apprehensive. But no matter how worried you may
be, you have one advantage that cannot be taken
from you: You were there. You saw the patient and
her condition at the time of treatment. You were,
and remain, in the best position to judge the
efficacy of your care. Others may second guess;
they may have the benefit of hindsight. But if you
are persuaded that you treated the plaintiff to
the best of your ability - that under the same
circumstances you would do the same thing today -
then you can expect to perform well in your
deposition.
With
solid preparation, a cool head, and an analytical
frame of mind, you can make it the first step
towards your ultimate goal as a physician
defendant - the reaffirmation of your professional
skills.
