Ten Commandments For Malpractice Depositions

Giving a deposition probably ranks up there with root canals on the list of activities people least enjoy. Depositions can be especially stressful for physicians and other healthcare providers who would rather be doing what they’re trained for—caring for patients.

Still, more than 1,000 federal medical malpractice cases were filed last year in the United States, and the vast majority involved numerous depositions. These depositions aren’t taken just of the defendant-healthcare provider; often other healthcare staff and medical experts have the unenviable assignment of being deposed, too. If you are one of the “lucky” ones, consider these Ten Commandments to help you stay composed and in control.

1. Thou shalt prepare, prepare, prepare. It’s important to remember that depositions involve preparation on two fronts: factual and psychological. The factual prep is easy enough, since you likely provided at least part of the care in question, have the records of the case to review, and a thorough knowledge of the underlying medical issues. That said, know your role in the patient’s care, know the records, and know the medicine. As I tell witnesses, a deposition is an open book test, but you need to have studied the materials beforehand to ensure you are able to “turn to the right page” during the test. The emotional preparation is another story.

2. Thou shalt not be pulled offside. If you care about what you do, you may have trouble not becoming emotional when being interrogated about your work—especially when someone is questioning your competency and methods, or those of a colleague. Yet getting emotional is exactly what you must NOT do when being deposed. Many witnesses nail the factual preparation but ignore the psychological one, which is just as critical, maybe more.

3. Thou shalt take your time and remain in control. Just as there are two sides to a lawsuit, there are two sides to a deposition. The lawyer questioning you is being paid to obtain information from you to help his case and hurt yours. His cross-examination is intended to get an emotional, reactive response instead of a careful, thoughtful one. But remember, you are the expert—the one who provided the care and knows the medicine—and you are in control of your answer. Before uttering a word, ignore the dramatics and take a moment (whether seconds or even minutes) to think out your response. Assume that every word you speak at that moment will be read aloud to a jury at a later date.

4. Thou shalt not accept a misleading premise. This advice falls in line with No. 3. While most people want to be cooperative, this instinct runs counter to your best interest during a deposition. When the opposing lawyer asks you a question, make sure there are no hidden or faulty premises: Did he misstate the facts, misconstrue your testimony, or assume a medical tenet that is simply untrue? If necessary, ask the attorney to repeat the question, then correct any faulty premise in your response. Often, a lawyer will pose a question in a biased manner, hoping you don’t pick up on it. You needn’t sit passively by and let that stand. Again, you’re in control, not the lawyer:
– Answer the question, and only the question asked.
– Give the most precise, yet complete answer needed.
– Then, stop!

5. Thou shalt fear no lawyer. It’s true that lawyers make up most legislatures and write the rules we live by every day. Attorneys certainly have a way with words, and they know the system. But facts are the lifeblood of any malpractice case, not the lawyers. As the healthcare provider, you are the one in control because you know the medicine. Sure, a lawyer can learn the medical facts of any case, but he will never have the education, training, and experience you have. Don’t forget that!

6. Don’t fall prey to cross-exam tactics. You’ve maintained your composure so far, kept to the facts, and didn’t take the bait when an attorney tried raise your hackles. Congratulations! But now the opposing attorney might mischaracterize your initial answers with misleading follow-up questions. Or he might rephrase questions previously asked. The attorney might toss a hypothetical question your way just to see what you say. And before you can answer a question completely, he might interrupt, just to rattle you. Don’t let him! Remember, you are in control.

7. Thou shalt practice. Lo, practice makes perfect. If you’re being deposed, more than likely you have an attorney, or your employer does. Ask for a mock cross-examination. I always “mock cross-examine” my clients when preparing them for a deposition, to give them confidence and a sense of security. I am glad to help out any physician or healthcare provider in this area.

8. Thou shalt keep thine confidence. Lawsuits, summonses, and depositions are the water lawyers swim in. It’s what gives them power. Years of medical study and experience, patient histories, and extensive training are your domain. Base your answers on your hard-earned lessons and experience. No doubt the attorney has learned a lot about the medicine in this case, but that knowledge is just a fraction of a fraction of a percent of what you know about medicine. Know that the opposing counsel can never compete with you on an intellectual level. This will help preserve your confidence. If a lawyer senses you’ve lost your bearings under a torrent of misleading questions, he or she will take advantage of that weakness.

9. Lean heavily upon thine own attorney. You won’t be alone in your deposition. Your lawyer will be there. If your attorney objects to a question or a characterization of what you said, don’t answer until it’s restated in an acceptable way. Talk to your attorney during breaks to gauge how things are going, where you are excelling, and where you need work.

10. Thou shalt not respect opposing counsel. Remember the speech about “closing” the deal by Alec Baldwin’s vicious, abusive character in the movie Glengarry Glen Ross? He’s only in it for the money. Assume that’s the opposing counsel in your deposition. If he can cause you to slip, that’s more money in his pocket. If you love your job as a healthcare provider, it’s up to you to fight for it.

Kimberly K. Bocell, a former registered nurse, is a shareholder at Dallas’ Chamblee, Ryan, Kershaw & Anderson, where she represents healthcare providers in all facets of health law.

Posted in Expert Opinions.