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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: 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
 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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