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Considerations When Giving Deposition Testimony In Your Medical Malpractice Lawsuit

By Marc Lanzkowsky, Esq. – Senior CoverMD Contributing Editor

Summary

In this article, Marc Lanzkowsky, Esq. discusses a number of important points for physicians to consider in the event they are deposed as part of a medical malpractice lawsuit.

In my last article I gave 10 steps to consider when being named in a medical malpractice lawsuit. In this article I will discuss how to deal with your deposition.

The road between the service of a lawsuit and eventual trial is a long one. As you may know, most cases never see the inside of a courtroom. Often cases are dropped or settled without a jury ever hearing a stitch of evidence. No matter if the case is settled or actually makes it through to a jury, the process of litigation is unchanged.

Your deposition will be the most important aspect of the case prior to trial

Preparing for trial starts from the second the case is instituted. While the procedures vary slightly as to time restrictions and the order of events from jurisdiction to jurisdiction, the basic events are the same. Initially there will be an exchange of documents and records, parties to the suit will be deposed, experts will be retained and their reports may be exchanged. Regardless of the procedures, your deposition will be the most important aspect of the case prior to trial.

A deposition is sworn testimony taken under oath by the opposing and other parties to the lawsuit. A deposition can be taken anywhere and is usually done in an attorney’s office or the courthouse. While a judge is not present for the testimony, everything is recorded by a stenographer and sometimes on video. In every sense, the testimony at deposition is similar to what will happen at trial without the judge or jury.

The purpose of the deposition is to allow the questioning party to learn as much information about what actually took place. More importantly, it is a way to put the deponent (the one giving the testimony) on the record and will be used by the experts to help form their opinions. If there are any inconsistencies between what you say at your deposition and what is it testified to at trial, it will be used against you to diminish your credibility.

Clearly, the deposition is a critical component to the defense of your medical treatment. Like anything, however, practice and preparation is crucial to presenting the best defense possible. Depositions are not conversations and there is no time limit as to how long you must wait before answering a question. Your attorney should spend time preparing you thoroughly for your testimony and can discuss specifics about the process and the case itself. Knowing the facts of the case and your medical chart is critical to prepare for a good deposition.

Here are six consideration to help prepare your for your deposition:

  • Have the right attorney

    Your medical malpractice insurance carrier will have provided a law firm to defend you. Make sure that a senior member of the firm, and preferably the one who would try your case, handles the deposition. If you are uncomfortable with your counsel then the time to raise those concerns is before you are deposed.

  • Tell the truth

    I know this seems obvious but it is worth repeating. Nothing good can happen if you are not honest in response to questions.

  • Be prepared

    Physician reviewing patient medical records

    Spend time reviewing all aspects of the medical records including lab results, nurse’s notes and consultations. Review the medical record(s) several times on your own, and with your attorney. If there are any concerns with the records, discuss those issues with your counsel so you are prepared for questioning around it.

    Do not expect opposing counsel to miss a minor issue that you believe should have no bearing on the case. For example, a lab result that was missing from the chart, but is not relevant to the case, still needs to be addressed. Plaintiff’s attorneys will jump on the irregularity and make the standard “mountain out of a mole hill.” Plaintiffs will be looking to put multiple “mole hills” together and use them against you. You know it means nothing to the medicine in the case but unfortunately it can be used to create an appearance of sloppiness and bad treatment.

  • Think before answering

    Wait until opposing counsel completes his or her entire question and then answer ONLY the question asked. It is human nature to want to defend the actions reflected in the record, but doing so inappropriately can cause more trouble than it may solve. A good defense attorney will cross-examine you during your preparation, so there should be no surprise.

    I used to tell my clients that if you are asked, “Do you have the time?” the answer is not “It’s 3:30 in the afternoon and it’s almost time to head home to my family.” The proper answer to this question would be “Yes, I have the time” and that’s it.

    A good suggestion is to wait at least five seconds before beginning your answer. This does not show up on the written transcript, but will give you time to understand what is being asked, properly formulate an answer, and allow your attorney time to object. Also, in that regard, it is important that you listen to your attorney's objections. In many cases, they are not only meant for the record, but to give you an idea of what you need to include (or exclude) from your answer.

    If you do not remember the answer to something, take as much time as you need to review the record before answering. You do not want to guess at an answer from faulty memory and then have a highlighted area in the record thrown back at you.

  • Fight the need to defend your answers

    Don’t try and beat the plaintiff’s counsel at their game. They are not going to drop the case just because you explain what happened. Your attorney will have a chance to rehabilitate any answers they think go against you on re-direct. If they don't, there is usually a good reason. In general, and while there are exceptions, opposing counsel will be asking "leading" questions to which the majority of yours answers should be; "yes," "no," I don't know" or "I don't remember." All of which are perfectly acceptable responses.

  • Answer in medical terminology where appropriate

    It is not your job to simplify things for opposing counsel since the primary reader of your deposition will be the plaintiff's expert. Now is not the time to educate and explain things. Save that for trial, but do not do it during your deposition.

Your attorney should be able to give many more suggestions during your preparation, however, here are some additional considerations that may help:

  • Never fail to cooperate with co defendants
  • Don't guess at answers
  • Never answer compound questions
  • Don't skim over labs
  • Don't respond to double negatives
  • Table the ego and urge to instruct
  • Avoid anger or belligerence
  • Take as many breaks as you need

Is important to be completely professional at all times during the testimony. If the deposition is going to be video recorded ask your attorney if they can prepare you on camera. This will allow you to see how subtle non-descript gestures may not come across well on video. Slumping in the chair, looking confused or showing strong emotion will not be recorded in the transcript but will reflect negatively on camera.

As noted, depositions are not regular conversation but are a critical part of your defense. No matter, with proper preparation you will go a long way to assisting your case and putting your medical treatment in the best light possible.

In my next article in the series I discuss preparing for your medical malpractice trial


About the Author

Marc Lanzkowsky, Esq. - CoverMD.com Senior Contributing Editor

Marc Lanzkowsky began his career as a Medical Malpractice Defense Attorney in New York, where he represented physicians and hospitals against claims or negligence.

Marc received a bachelor’s degree from New York University in 1988 and a Juris Doctorate from Pace University School of Law in 1991 and comes from a family of 9 physicians making the subject of Medical Malpractice near and dear to his heart.

Click here to read Marc's full bio



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