Most physicians try their best to provide quality care for their patients and do not anticipate being the subject of a medical malpractice lawsuit. However, legal complaints are a reality with which doctors have to contend. Once the patient becomes plaintiff and their attorney proceeds with formal allegations of negligence, the parties to the lawsuit then go about collecting as much pertinent information as possible well before trial occurs. This discovery phase of litigation includes carrying out legal procedures like interrogatories which are written questions to the other party in the suit that must be answered under oath. Requests for documents are also made as well as the taking of oral depositions. A deposition is another discovery procedure by which a witness’s testimony is taken under oath prior to trial. A stenographer or court reporter transcribes all of the questions and answers creating a resultant manuscript. It is the defendant physician’s deposition which is of chief importance. During the deposition, opposing counsel typically has an expansive agenda with the goal to obtain as much information as possible. Another objective that they have in mind is to “lock-down” testimony so that what was said at deposition can be used for impeachment in the event there is inconsistent testimony at trial.
The deposition experience is indeed stressful as a physician suddenly finds their integrity and actions called into question. Nevertheless, the defendant needs to be well prepared. Remember that the strengths and weaknesses of the witness are being assessed so the impression being made could potentially influence the case in a way which would aid the defense. Preparation begins with a review of the entire database so that there is a clear recollection of the case. A pre-deposition conference with the defense attorney is also obligatory and should include clarification of any potentially confusing matters. Do not attempt to conceal any information, even that which you perceive to be unfavorable from your defense team. Honesty and candidness are thus a necessity. The physician’s CV should also be checked for any discrepancies, and counsel should be alerted to any web sites or online profiles that are relevant. It is advisable to conduct a mock deposition to further increase the witness’s preparedness. Despite any practice demands, the physician should plan ahead and accordingly allow sufficient time scheduling for the deposition. It is also important to be clear about the deposition’s location and do not allow it to occur at the defendant’s office. Following these suggestions will reinforce confidence during the deposition which will in turn be reflected in the final written transcript.
Once the deposition begins, remember that a sworn witness is required to tell the truth. Opposing counsel will ask questions in an attempt to foster answers which might reveal new facts or open up problematic areas. The physician should make every effort to keep their answers clear and concise. Listen carefully and pause before answering to allow time so that each question asked receives prudent consideration. It is helpful to remember that the written transcript itself does not reflect the length of time it takes to answer a question. Exceptions to being brief may occur when an explanation is necessary as well as when defense counsel provides specific instruction. A particularly deceptive scheme to watch out for is a pattern of questioning by opposing counsel intended to prompt only “yes” answers making it hard to say “no” in response to a subsequent ambiguous question. The witness may ask for clarification of confusing or convoluted questions, but should never speculate, guess, or make inaccurate/unfounded statements. If the question is ultimately not understood, it should not be answered with the response simply being “I don’t know.” Alternatively, an answer may be qualified by saying “approximately” or “to the best of my memory.” Definitely avoid the use of adjectives and superlatives such as “always” or “never” as these qualifiers can be later used to distort testimony. If questions are asked about a particular document, ask to see that document and take time to review it to make sure that it has not been quoted out of context or mischaracterized. Any pertinent concerns should be noted by the witness on the record. There are circumstances where both attorneys may wish to have a discussion “off the record.” For the witness however, remember that nothing said is ever “off the record.”
Many attorneys reserve especially important questions for later on into the deposition hoping that the defendant will be less guarded, so it is important to be well rested and ask for breaks when needed. Composure and concentration must be maintained while resisting the urge to become overly emotional and hostile as there is vulnerability to behave in ways which could negatively affect the outcome of the case. Opposing counsel will test the defendant and hope for mistakes which are recorded in the transcript. Alternatively, they may wait and later on prompt for such behavior at trial. If a mistake is made, simply state for the record that you were in error and correct your statement. There are times where the physician is approached in a congenial manner as a tactic to attempt to gain additional information. And if the attorney becomes silent after an answer, the witness should resist the compulsion to continue talking. Never volunteer extra information, agree to supply any additional documents or provide other evidence. Some physicians going into a deposition believe that if they are allowed to explain their case, opposing counsel will dismiss the complaint which is in fact unlikely to occur. If the deposition is to be videotaped, realize that the recording will likely be played for the jury. It would therefore be important to dress appropriately, look directly at the camera, speak clearly and avoid long pauses in this circumstance.
Fortunately, initiating a medical malpractice lawsuit and winning it are entirely different matters for the plaintiff. Only about 7 percent of medical malpractice lawsuits ultimately go to trial, and most of these, about 80 percent, result in a verdict for the defense. By being educated and thoroughly prepared, the defendant physician will not only be better able to cope with completing their deposition, but they will also enhance their likelihood of a favorable judgment.
Karl G. Sieg, MD, MRO, FAPA is Medical Director of La Amistad Behavioral Health Services located in the Orlando metropolitan area. Dr. Sieg has also served as a litigation consultant and expert witness in civil matters including medical malpractice and personal injury cases over the past twenty years.