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Surviving Your Deposition By: Lisa A. Wilson University Legal Counsel Lisa H. Rutherford Senior University Legal Counsel Nancy K. Lynch University Legal Counsel Medical Malpractice • Cause of Action for Negligence Duty - physician owes duty of reasonable care Breach - physician did not meet standard of care Causation – breach was a substantial cause of injury Damages – compensatory Notice of Claim • Statutory obligation for claims against employees of state or governmental agency • State Employees (UW-Madison) 180 days from date of injury or discovery of injury File claim with Attorney General’s Office • Governmental Agency Employees (UWHC) 180 days from date of injury (medical malpractice) File claim on officer of agency • Lawsuit is barred if no timely NOC When a Claim is Filed • UW Employees Notified in writing by UW Legal Services Attorney will contact you • UWHC Employees Notified in writing by UWHC Risk Management Risk manager reports to insurance co • Investigation of Claim The Lawsuit • Served with a Summons & Complaint • Notify UW Legal Services or UWHC Risk Management immediately • Short time frame to respond • Do not discuss case with anyone except your attorney, risk manager, insurance co representative Discovery Process • Discovery Deposition Fact-finding mission • Evidence Deposition Preservation of testimony May be videotaped Do You Have to Testify at a Deposition? • Notice of Deposition – agreed • Subpoena – compelled Subpoena • Subpoena: compels attendance at a certain date, time, location • Subpoena Duces Tecum: compels the deponent to bring records DO NOT bring medical records Custodian of medical records is Health Information Services Role at a Deposition • Defendant • Expert Witness • Treating Physician (fact witness) Expert v. Treating Physician Witness Testimony • Under WI law, you have a right not to be an expert witness (1 exception) • You may still be compelled to testify as a treating physician (fact witness) • Limit your testimony to treatment of patient What did you see What opinions did your form What decisions did you make Expert Witness Testimony • Examples of questions that call for expert opinion Did the defendant breach the standard of care? Hypothetical Did the accident cause this injury? Will plaintiff have future pain/suffering What will be plaintiff’s future medical bills? Any question outside the scope of your practice (e.g. asking radiologist questions that should be directed to a pathologist) One Exception • Carney-Hayes v. Northwest Wisconsin Home Care, Inc. • Court held that if allegation of negligence against physician, s/he may be required to give opinion on the standard of care governing her or his own conduct Tips To Avoid Becoming an Expert • Letter from attorney asking you to answer list of questions, DON’T answer expert questions • DON’T review medical records you did not rely on in treating patient • DON’T talk to your colleagues about NOC or lawsuit Do’s and Don’ts of a Deposition • DO Tell the truth Prepare yourself by reading records you relied upon in treating pt Pause before answering question Ask attorney to repeat confusing questions Ask to stop depo and converse with your attorney if you need to Answer questions as simply as you can - “yes” or “no” if possible State that you are employed by the University of Wisconsin Do’s and Don’ts of a Deposition • DON’T Review records you did not rely upon Express anger or argue with attorney Be afraid of the pregnant pause Volunteer information – stick to the question Teach the attorney what they need to know about the pt’s condition Speculate or guess when you don’t know or can’t remember State that you are employed by UWMF, UWHC, or UW Health The Privilege • Must answer questions after an objection (e.g. “relevance”, “form”, “foundation”) • Exception for privileges • Privileges are waived by answering the question • Most common privileges: Attorney-client privilege Expert privilege Mock Deposition On 3/15/2004, 45 year old female had CT performed prior to surgery for abdominal aneurysm. Radiologist noted potential lesion on liver in report as an incidental finding. Ordering provider did not notify patient of incidental finding. After another CT on 12/2/04 patient is diagnosed with liver cancer. Patient obtains first CT report. Patient sues ordering provider. Radiologist is deposed as a treating physician.
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