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Preparing_for_a_Deposition

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					Medical
Malpractice
Litigation
Preparing for a Deposition
What is a deposition?                                          Who gets deposed?
A deposition is a formal legal process in which questions      In a malpractice lawsuit, any person with knowledge that
are asked and answers obtained. Oral testimony is taken        relates to the case, anyone who the patient remembers, or
under oath and every word spoken is transcribed. The           anyone whose name appears in the medical record may
transcript can be introduced in court as evidence if the       be deposed. Parties to the lawsuit, prior or subsequent
case proceeds to trial. Depositions are usually conducted      treating physicians, witnesses to the incident in question,
during ordinary business hours, and may last from a few        consultants, and—under some circumstances—expert
hours to more than a day.                                      witnesses all may be deposed.

Attorneys may ask any question that might lead to the
                                                               How is a deponent notified?
discovery of admissible evidence, provided that answering
                                                               If you are named in a medical malpractice lawsuit, your
it does not require disclosure of privileged information.
                                                               attorney will receive the notification of the deposition and
Answers should be consistent and, above all, truthful.
                                                               contact you. A party to the suit does not need to be served
Knowingly making a false statement in a deposition
                                                               with a subpoena. A “Notice To Take Deposition” is the
constitutes perjury.
                                                               only document necessary to require your attendance.
The purpose of a deposition is to investigate the facts
                                                               Generally, if you are not a party to the lawsuit, you can
and issues about both the event that is the subject of the
                                                               only be required to attend a deposition by subpoena (a
lawsuit and the deponent’s background. A deposition may
                                                               legal notice compelling the witness to appear and testify
be taken to preserve the testimony of a witness who will
                                                               or produce certain documents at a specific date, time, and
not be available at trial, such as one who is very ill. The
                                                               place). If you could potentially be named as a defendant
process is also used to assess the credibility and demeanor
                                                               based on information you provide at the deposition,
of the witness.
                                                               CRICO/RMF will offer counsel to represent you in these
A plaintiff ’s attorney generally uses the deposition to       circumstances.
elicit information that may not be contained in the
medical record.                                                What do I do if I receive a deposition subpoena?
                                                               Contact your risk manager or CRICO/RMF promptly
The witness’ appearance, professionalism, and demeanor         to ensure proper and timely legal representation. Your
(i.e., his or her potential impact on the jury) are gauged     attorney has only 10 days to file a Notice of Objection to
throughout the deposition. Information and observations        a deposition subpoena. Avoid discussing the case or the
gained from the deposition are used by the opposing side       deposition with colleagues, as such discussions are not
to develop additional lines of questioning and to plan         protected from legal discovery. Conversations with your
strategy for a possible trial. Attorneys will review the       spouse, risk manager, insurance company representative,
deposition transcript for any inconsistent statements by       and attorney are protected.
the deponent at the time of the incident, at the deposition,
or at trial.




                                                                                                                             1
Where is a deposition taken?
The deposition is usually taken in the opposing attorney’s
office. While your office may seem more convenient, the
likelihood of problems occurring is greater. For example,
files or reference materials in open view could be observed
and recorded by the plaintiff ’s attorney.

What should I bring?
Bring only the documents specifically requested in the
subpoena. Do not bring any other records or personal
documents. Review the records to be sure that they do not
contain any additional material that was not requested or
materials that require separate patient consent.

Who will be present?
■■   You (the deponent)        ■■   The opposing attorney
■■   Your attorney             ■■   The court reporter
■■   Your CRICO/RMF claim      ■■   The plaintiff
     representative                 (occasionally)




2
Preparing
Preparation and a pre‑deposition meeting with your               Pre-deposition meeting with your attorney
attorney are essential. The level and type of preparation        Communication with your attorney is essential and
will depend upon whether you are a consultant, a                 privileged. Contents of your discussions cannot be
subsequent treating clinician, or a defendant. If you are        obtained by opposing counsel. If you are named in the
to appear as a defendant, your preparation will be more          suit, ask your attorney what allegations have been made
extensive than if you are testifying as a fact witness about     against you and on what factual basis. Your attorney may
a patient’s condition.                                           decide to obtain the plaintiff ’s deposition testimony first
                                                                 so you can review that testimony in preparation for your
Health care providers with little or no exposure to
                                                                 own deposition.
depositions may be at a disadvantage when facing this
process for the first time. Your preparation should cover        You may be advised to review certain medical records,
three important subject areas: the treatment of the patient,     obtained through the discovery process, in order to better
the patient’s follow‑up care, and the relevant medical           acquaint you with any care the patient has received from
literature.                                                      other clinicians. In addition, be prepared to educate your
                                                                 attorney about critical medical aspects relative to your case.
Individual preparation
                                                                 In advance of your deposition, your attorney will
You are not expected to have memorized every detail of
                                                                 schedule a conference to plan your defense and discuss
the record. During the deposition, you will be able to refer
                                                                 the questioning process. In complex cases, several
to the medical record if asked a specific question about it.
                                                                 meetings may be needed. If you feel uncomfortable
If you are not able to look at the record, and you do not
                                                                 about any potential questions, or are aware of possible
recall the information, your attorney will advise you to say
                                                                 weaknesses in your case, discuss these concerns with your
that you do not recall.
                                                                 attorney. Inform your attorney of all relevant papers,
Do not alter the medical records in any way. Alterations,        notes, and conversations relating to the case. Discuss all
interlineations, and addendums that are made after the           the important information you recall during the pre‑
initiation of a claim or suit can only appear as self‑serving.   deposition meeting. Your attorney will be a more effective
                                                                 advocate if he or she is fully informed about the case.
Do not consult outside sources. You need not demonstrate
your breadth of knowledge. The aim of a deposition is
to ascertain what you know about why certain decisions
were made at the time of the incident in question. If you
are a defendant or fact witness, you will not be expected
to speculate —and should refrain from doing so. Restrict
your testimony to what you saw, heard, and did during the
treatment of the patient.




                                                                                                                                3
What to Expect
A certified court reporter administers an oath to the        Often the same question will be asked several different
deponent and transcribes the testimony. The opposing         ways. The questioner may try to force you to be as accurate
attorneys generally are cordial with each other at the       and precise as possible. If you make any statements
beginning and the questioning will appear relaxed.           that are inconsistent with your prior statements, the
The initial relaxed appearance of a deposition may be        inconsistencies may be used to discredit your testimony.
misleading. The plaintiff ’s attorney might suddenly ask     Completely honest and succinct answers leave less room
you a startling question, such as, “How many patients have   for confusion.
died while you were doing this surgery?” An unprepared
witness can easily be shaken by this tactic.                 Some standard questions will likely be asked at the start of
                                                             your deposition. These are fairly straight‑forward and not
Your attorney will be with you throughout the deposition     intimidating. They are asked to obtain basic information
to raise legal objections, if needed, and to discuss the     and to relax you. However, simple questions may be
progress of the deposition with you during breaks. He or     interspersed with loaded questions.
she will listen to every question and object to those that
probe into privileged communications. Your attorney          Typical preliminary deposition question topics
may also ask you questions to help you clarify a previous    Identification: your name, residential and professional
answer.                                                      address, marital status, and the names and ages of any
                                                             children.
After a question is asked, allow your attorney time
to interject. Your attorney can object to an improper        Medical licenses and board certifications: which dates and
question. When an answer would reveal privileged             which states, boards, etc.
information, your attorney may direct you not to answer.
                                                             Education: college, medical school appointments; hospital
Do not misconstrue silence to mean that your attorney        privileges; and types of professional practice, such as
is not advocating for you. Attorneys may only object         medical group, partnership, solo practitioner, or employed
to irrelevant or improper questions. The number of           clinician.
objections will probably be small.
                                                             Publications and research: especially work related to the
                                                             case. The plaintiff ’s attorney would be delighted to find
                                                             any medical writing prepared by the defendant that
                                                             supports the plaintiff ’s case.




4
Survival Tips
Be honest and accurate. If you are unsure or do not know       Refer to the medical records when necessary. Ask to look at
the answer to a question, say so.                              the records or charts in question before answering. Be
                                                               accurate in your reference to records, rather than guess
Do not try to memorize answers. Familiarize yourself with
                                                               about important facts.
the types of questions that may be used to confuse you.
If you are aware of the potential pitfalls and know how        Do not fill in gaps of silence. Some attorneys deliberately
to handle them, you will be better prepared to answer          allow long gaps in questioning in hopes of making you
appropriately.                                                 volunteer information. If your answer is complete, do
                                                               not feel pressured to continue talking. The transcript of
Admit that you consulted with your lawyer. If opposing
                                                               the deposition only shows the words spoken, not gaps or
counsel asks, “Did your lawyer tell you what to say at this
                                                               silence.
deposition?” you may answer, “My lawyer told me to tell
the truth.” Do not answer questions about the content of       Listen for compound questions. You may be pressed to
any conversations between you and your attorney. Such          answer two or more combined questions with one “yes”
conversations are privileged and not subject to disclosure.    or “no” response. Insist on the opportunity to answer each
If the topic is raised, give your attorney an opportunity to   one separately.
object.
                                                               Every question is important. The opposing attorney will
Listen carefully. Do not interrupt the questioner. Do not      carefully plan the timing of the most important questions.
finish his or her sentences or try to predict what will be     Be aware that they may be saved for the end of the depo‑
asked of you. Your answers must be appropriate for the         sition or posed at a time when you are flustered or tired.
questions as asked, not as they should have been asked.
                                                               Pay careful attention to summaries of your prior statements.
Do not answer incomprehensible questions. The tendency is      The opposing attorney might summarize your previous
to assume what opposing counsel meant and then answer.         statements to persuade you to agree with something that
If the plaintiff ’s attorney asks a question that does not     is not completely true. Do not agree with a summary of
make sense to you, ask the attorney to restate the question.   your testimony unless it is exact.

Pause before answering. Think (silently) about the question    If you’re angry, hide it. Do not argue with your attorney or
before responding. A pause also gives your attorney a          the opposing attorney. Remember that your deposition
chance to object to the question, if needed. If you answer     testimony could eventually be heard (as transcribed) by
before your attorney has a chance to object, you might be      a jury. Attorneys are generally pleased if the opposing
volunteering information that could damage your defense.       witness demonstrates anger or rudeness. A negative
                                                               attitude may be magnified in writing. An angry or snide
Be clear and concise. Speak directly towards the court
                                                               comment may sound twice as bad when read from the
reporter transcribing your testimony. “Yes,” “No,” “I do
                                                               transcript. Stay calm and in control of your emotions.
not know,” “I do not recall,” or “I do not understand the
question” are often the only appropriate responses.            Avoid showing outward signs of exasperation, boredom, or
                                                               fatigue. Even though the questioning may seem far too
Do not speculate or guess. You probably will not be able to
                                                               extensive or irrelevant, control your expressions. If you
remember every detail relating to the incident or patient
                                                               feel tired, angry, or ill, a short break can be arranged by
at issue. If you cannot remember something, say so.
                                                               counsel.



                                                                                                                              5
CRICO/RMF is the patient safety and medical malpractice company
owned by and serving the Harvard medical community since 1976.
CRICO/RMF’s proven ability to combine strong insurance protection
with expert legal services and best practices in patient safety enables
physicians, institutions, and employees to focus their considerable
expertise on their patients and their research.

Insurance coverage is provided by Controlled Risk Insurance
Company of Vermont, Inc. (A Risk Retention Group) and Controlled
Risk Insurance Company, Ltd. (CRICO).

Risk Management Foundation (RMF ) was incorporated by the
Harvard Medical Institutions in 1979 as a charitable, medical and
educational membership organization. Today, CRICO/RMF is an
internationally renowned leader in evidence‑based risk management.
We serve nearly 10,000 physicians, 18 hospitals, and 238 other
healthcare organizations.

With a consistent history of fewer claims than the national average,
CRICO/RMF is able to offer policy limits that are among the highest
in the country, and predictable premiums that fall significantly
below local market rates. The strength of the program comes from
exceptional claim management with vigorous, yet fair, malpractice
defense strategies and a steadfast commitment to leading edge patient‑
safety enhancements. Our three decades of experience as a trusted
partner to the Harvard medical community, and more than 25 years of
claim‑based data, highly qualify us to assist physicians and institutions
in their goal of delivering the safest health care in the world.

				
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