by Ilene R. Brenner, MD
The most important part of your case is upon you: the pretrial deposition. If you do a poor job, you can ruin your case and make a defensible lawsuit become indefensible.
So what is a deposition? It is the sworn testimony of a witness taken before trial, in a location that is out of a court setting, without a judge present. Still, the witness is placed under oath, a court stenographer records the testimony, and if necessary, translators will be present.
It is the practice in most states that the plaintiff and all defendants have depositions taken prior to trial. In addition, there may be a deposition of the plaintiff’s spouse. Some states permit the deposition of experts and some states do not.
The deposition process consists of meeting with plaintiff’s attorney face to face while they question you for as long as it takes in an attempt to lock in your testimony and to try to prove their case. The plaintiff’s attorney can then use what you say to frame questions at trial. Contrary to what you may think, the deposition is rarely for your own benefit. It is not there to clear up the facts so that the plaintiff’s attorney can realize just how wrong they were for suing you.
There is a common misconception amongst physicians that if they explain things well, their intelligent responses will prove to the plaintiff’s attorney that the whole thing is a mistake. They may also think that they need to explain their defense clearly and completely to the plaintiff’s attorney. However, as will be detailed later on in the chapter, a general rule is, “the less you say the better.” Since there is the potential to do significant damage to your case, it is critically important that you perform well; otherwise you may be forced to settle an otherwise winnable case.
Preparing for the Deposition
Your first step in your preparation is to meet with your attorney to explain the process.
Some attorneys hire trial/jury specialists to help you. Frequently, attorneys supplement their own preparation with these experts who get you ready for your deposition and trial. If you are given the opportunity, use it. If not offered, ask if this is possible.
Few attorneys spend the time and effort required to make sure you are “ship-shape.” If your attorney doesn’t prepare you adequately for your deposition, you will likely perform poorly (especially if this is your first time). A preparation expert can fill in the gaps and give you the extra confidence you need to do a great job at the deposition and trial. I have found that even if it is only one or two things they tell you that helps you, it is worth it.
Know your strategy for dealing with co-defendants.
At the time of the deposition, all co-defendants should be cooperating with each other. Even if you think one of your co-defendants committed malpractice, this is not the time to mention that fact. Keep that information to yourself until backed into a corner where you have no choice but to reveal that. Why? You don’t want to help the plaintiff’s case at all.
You might think that revealing this information might get you out of the case leaving only the “true guilty party.” Wrong. Turning on your co-defendant won’t help you get out of the case. In fact, it will likely ensure your staying in the case because your co-defendants’ finger will now be pointing directly at you. Thus, you will fall into the trap set by the plaintiff’s attorney; sue everybody in sight and have them turn against each other so as to get money from at least one of you. Work with your co-defendant(s) and provide a united front. Do your best not to say anything that could make the other look bad; though of course make sure that whatever you say is within the confines of truthful testimony.
If you have a corporate entity, such as your boss’s company, as a co-defendant, it is to your advantage to do and say anything your attorney recommends to help get them dismissed from your case. For instance, if you have independent contractor status, there are legal tactics that can show that your boss is in no way tied to any possible medical malpractice on your part. While this may seem like you are getting the shaft in favor of your company, it is to your benefit to separate yourself from them. This is an important part of your case, as jurors like to award money to plaintiffs when a corporation is involved. The last thing you want is to have jurors in a mood to award money.
Make sure you understand well the basic medicine components to your case.
If you are wrong on the medicine, it will not matter what your defense is. All may be lost and you have not even started the trial. Now that you’ve met with your attorney (as opposed to before), go ahead and do your research and make sure you’ve got the medicine correct. Your research is protected by attorney-client privilege, and thus, is not discoverable by the plaintiff’s attorney.
Be aware of subsequent treating physician testimony/documents, but DO NOT read those documents yourself.
I know on the surface this doesn’t make much sense. However, think about what I just said about less is more. The more you have read prior to the deposition, the more you can be asked about.
There are many circumstances where knowing information about subsequent treating physician testimony/documents can be helpful to you. For instance, in the instance of a heart murmur, you might not have documentation that specifies heart sounds. It is likely you don’t remember if you heard one or not. However, if asked if you heard a heart murmur, you might be inclined to say “no,” since it was not specifically charted. If you were to then find out that the cardiologists who saw the patient subsequent to you all heard murmurs, you might want to finesse your answer so as not to look incompetent. In this case it would be better to simply say, “I might have, but it is not explicitly documented.” Sure, this shows you didn’t document your exam perfectly, but it prevents you from saying something that is clearly opposite to subsequent expert physicians.
So how do you know what is in documents you never read? That is where your attorney comes into play. Your attorney will read those documents. And they can inform you of any information they deem important. That way if asked if you have any knowledge of subsequent treating physician testimony or documents, you can say, “only what my attorney told me.” Boom! Attorney-client privilege is now brought to light. The question is objected to, and you cannot be asked about anything that your attorney told you.
Choose an appropriate location.
Your attorney’s office is the best place to have the deposition. But it really can be at the courthouse, plaintiff’s attorney’s office or in any conference room. Do not host the deposition in your office or hospital as anything in there, such as diplomas, books or journal articles could become fodder for questions by the attorney.
What should you wear to your deposition?
You want to look clean, neat and professional. Nothing flashy. You want to look “put together,” like someone who will make a good impression with a jury. You’d be surprised how many physicians disregard this basic rule. In fact, I have heard of many instances where the physician puts up a big fight to try to get out of dressing nicely to the deposition. Yes, it is stupid. Yes, it is superficial. Are you going to lose your case because you decided to wear jeans and a t-shirt to the deposition? Not necessarily.
However, you might end up going to trial on a case where you might previously have been dropped. This is because some plaintiff’s attorneys sue everyone in sight and use the deposition as a fishing expedition. If the plaintiff’s attorney thinks you will come off poorly on the stand, they may keep you in the case hoping your poor performance will make them money.
Thus, the need to dress nicely is not to be underestimated. At a deposition, you are being judged by your words and by your appearance. The plaintiff’s attorney is watching you closely; don’t give them anything with which to find fault. Though you don’t have to wear a suit, you do want to look sharp. If that means buying a new outfit for the occasion, then do it. That extra expense pales in comparison with the consequences of a lost medical malpractice lawsuit.
Ilene Brenner is an emergency physician who blogs at Dr. Brenner’s Thoughts on Healthcare, and is the author of How to Survive a Medical Malpractice Lawsuit: The Physician’s Roadmap for Success.
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