In a medical malpractice case, the pretrial deposition is a very important part because if it is not done properly, it can virtually ruin the physician-defendant’s case. A deposition is the sworn testimony of a witness taken before the trial and it is conducted in a location outside of a court setting. A judge will not be present during the deposition. The witness is however, placed under oath, and a court reporter/stenographer and translators will be present. A deposition summary is usually prepared, ideally utilizing medical records services, which would summarize the important points of the deposition. A deposition summary is immensely beneficial for lawyers for quick reference in both pretrial and courtroom settings. The defendant physician meets with the plaintiff’s attorney face-to-face and answers the questions asked. The plaintiff’s attorney can use what the physician says to frame questions during the trial. The defendant physician must be knowledgeable about the deposition process and be well-prepared to testify. The defense attorney would provide guidelines regarding how to face the deposition and prepare thoroughly, which makes legal counsel indispensable in a medical malpractice case.
Physicians who are asked to appear for a deposition must avoid certain mistakes to make the process less stressful. What are these mistakes?
- Not seeking legal counsel: Many physicians give depositions without first obtaining legal advice. Since a deposition is a serious legal proceeding and the physician gives testimony under oath, the consequences of the testimony could be significant for the plaintiff as well as the defendant physician. Ideally, the physician should seek the advice of a lawyer or the physician practice’s designated risk manager before giving the deposition.
- Not reviewing the medical chart: Physicians must be closely familiar with the patient’s medical chart and for this chart review is indispensable. Otherwise, they will have trouble answering the questions put to them regarding the patient’s condition, diagnosis, and the treatments provided. A detailed medical chart review of the patient will give physicians all details regarding what they did for the patient and why.
- Not heeding or ignoring the request for deposition: Sometimes, physicians ignore or avoid the request to appear for the deposition. This is not a good strategy because the plaintiff lawyer has the option of serving a subpoena on the physician that would specify the date, time, and location where the physician has to be present. This subpoena cannot be ignored and failure to obey it could lead to monetary and other sanctions from the court. So, instead of ignoring the deposition request, you should accept it and schedule the deposition for a time and place that is convenient for you.
- Not heeding the basic rules: It is important to remember that the court reporter needs to take down the testimony, and it is vital for the physician to answer the questions clearly and correctly. The basic things to remember are:
- Make sure that you understand the question before answering.
- Request that the question be rephrased, if you don’t understand it.
- Be sure to answer verbally. Do not nod or shake your head instead of giving a clear answer.
- Wait until the question is finished before answering.
- If the question calls for a “yes” or a “no,” answer with a “yes” or “no”. Do not use expressions like “nope” or “uh-uh” or other similar ones.
- Not keeping within the limits of the question: Do not volunteer information beyond what is expected. Answer the questions truthfully and to the point.
- Not keeping within your area of expertise: Special care must be taken not to stray outside of your own area of expertise. This could lead to loss of credibility and other serious consequences.Physicians should avoid answering questions that belong to areas outside of their medical specialty.
- Not remembering specific facts and engaging in speculating: This is a grave mistake. Sometimes, physicians may not remember specific facts regarding treatment and if the medical chart is incomplete, it could lead to trouble. It is not advisable to speculate based on what you think you may have done. Also, do not venture to answer questions regarding treatment that was provided by another physician or those that are outside of your personal knowledge. In short, do not guess or speculate when answering deposition questions.
- Not maintaining a calm, professional attitude: Some physicians become argumentative during a deposition when they are attacked by plaintiff lawyers. It is not advisable to pick a fight with a lawyer in a deposition. It would give a picture of you as a hostile or rude witness, which will work against you in the course of the case.
As providers of medical review solutions to attorneys, we know how apprehensive physicians can be about their upcoming deposition. However, a physician who has familiarized himself/herself with the procedure and prepared thoroughly for all expected questions and appropriate responses can stay calm and collected, perform well during the deposition and also make it work in their favor. For the deposition to be successful, the physician should work closely with his/her attorney and follow the advice given.