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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