Thanks to television, many people think of a deposition as something that happens under a glaring light bulb in a dimly lit room, while attorneys grill witnesses with trick questions. Understanding what actually happens at a deposition, and how to deliver a powerful presentation, is important to a successful legal outcome.
For physicians, depositions are stressful and unnatural experiences. The process of being interrogated about allegedly negligent patient care is unnerving and atypical from the interactions and communications that physicians have with their patients and others during the course of any given day. Despite the discomfort, it is important for physicians to give good depositions. To do this, physicians should understand the deposition’s purpose, know how to tell the truth when answering varying and difficult questions, and obey the rules of a deposition.
Physicians can be deposed as defendants, as treating physicians in some type of personal injury case, or as expert witnesses who have been hired by a party either to be critical of, or to defend, another physician’s care and treatment. The type of testimony the physician gives, and the extent of such testimony, varies depending on which context applies. A physician giving testimony as a defendant in a lawsuit must present well, must know the facts and the medicine, and must stay within his or her area of expertise.
THE PHYSICIAN MUST PRESENT WELL
Physicians’ depositions are one of the most important parts of the case. While many physicians see it as an opportunity to tell their side of the story, the purpose of the deposition is really for the patient’s attorney to assess the physician as a witness and to pin the physician down on critical points regarding the patient’s care so that he or she can use the testimony to frame favorable questions and theories at trial. Therefore, the physician needs to look and sound professional, and while it can be difficult, the physician should maintain a calm and pleasant, yet compelling, demeanor. Physicians’ depositions are often recorded by video, which can be shown during trial, so appearing unkempt, flippant, or sarcastic is not beneficial for the defense.
From a communications perspective, the general rule is “less is better.” This not only helps keep the deposition shorter, but it keeps the deposition focused and helps physicians avoid volunteering extraneous information. Taking care not to present as uncooperative, physicians should listen to the questions asked and provide short, well-reasoned, responsive answers. This helps prevent the plaintiff’s attorney from obtaining the sound bites and points that are critical to the plaintiff’s case. Working with an attorney prior to deposition helps physicians understand when less is better or when a little more is helpful.
THE PHYSICIAN MUST KNOW THE FACTS AND THE MEDICINE
To present as strong witnesses, physicians should ensure that they understand the basic medicine involved and the issues in the case. The testimony by a physician who does not know the medicine can have a devastating impact on the case. Physicians should not only understand the basic medicine, but should also understand current trends, changes, or developments in the medicine involved, variations in the type of treatment that may be provided, and any relevant peer-published guidelines or consensus statements. When and how to obtain relevant literature should be discussed with the physicians’ attorneys prior to deposition.
Just as important as knowing the medicine is knowing the specifics of the care and treatment at issue. Knowing a patient’s record without continuously referring to it during a deposition demonstrates both that the defendant is invested in defending the case and cares about the particular patient. In cases where there is only one visit at issue, physicians should completely and thoroughly know the relevant record. On the other hand, in cases where the care and treatment is extensive and involves a long period of time or a lengthy hospitalization, physicians should have a sufficient working knowledge of the medical record, with specific knowledge of key points, so that they can discuss the care without constantly referring to the medical records. The medical records are available during a deposition, and physicians have a right to refer to them before answering questions if needed.
THE PHYSICIAN SHOULD STAY WITHIN HIS OR HER EXPERTISE
Physicians who limit their testimony to matters that are only within their area of expertise help ensure a strong deposition. Unlike a lay person, physicians cannot only testify on factual issues, but can also give expert opinion testimony regarding the essential elements of the case. In so doing, physicians should limit their answers to matters that are only within their area of expertise. While the care and treatment at issue will be within a defendant physician’s area of practice, the alleged harm or injury suffered may not. A common example of this would be alleged negligent care and treatment by a primary care provider that is then followed by an alleged cardiac injury like a myocardial infarction.
The primary care physician in such an example should be careful to testify only about the medicine with which he or she is familiar and leave the more detailed testimony about the myocardial infarction and its sequelae to a cardiologist, cardiac surgeon, or other qualified specialist. The same is true if there are other physicians who are defendants (or nondefendant treating physicians) in the case who practice in different specialties.
Because their expertise is different, leave the testimony about the others’ care and treatment to them and their expert witnesses. Being a physician does not mean one should know the ins and outs of care provided by others or have an opinion about that care and treatment. When answering a plaintiff’s attorney’s questions, physicians should never speculate. Instead, physicians should limit their answers only to matters about which they havpersonal knowledge. In many cases, physicians may not recall the patient or may not recall the specifics of the care and treatment that are at issue. Just because a specific recollection may be absent, however, does not mean that physicians do not have personal knowledge. In addition to having an independent recollection, physicians can rely on the medical records, as well as policies and procedures, routines, habits, and customs and practices. For a question about a matter for which a physician has no personal, firsthand knowledge, the answer should be “I don’t know.” Physicians are not required to know something even if the attorney asks the question more than one time.
Furthermore, deposition testimony is taken under oath, and an attorney presumes that when physicians answer a question that has been asked, the question is understood. Oftentimes, though, that is not the case. Attorneys are not physicians, may not have a good understanding of the medicine, or may not be well-prepared, which can lead to awkward questions. That is why it is very important that physicians make the attorney ask good, articulate, coherent questions. Physicians can do this by asking to have the question rephrased or by asking for clarification.
Doing this helps ensure accuracy in the record (remember, it can be used at trial), gives physicians additional time to formulate cohesive responses, and simply forces the plaintiff’s attorney to ask a well-developed question. It also allows physicians to be involved in controlling the pace of the deposition and the types of questions asked. And if the attorney misstates something as part of the question, physicians should point out the error in the answer.
Finally, physicians should exercise caution in responding to hypothetical questions. Because physicians are somewhat unique in that they can respond to questions calling for factual responses and opinions, plaintiffs’ attorneys will frequently attempt to establish basic elements of their case by using hypothetical questions involving circumstances similar to those at issue, such as “Let’s say you have a patient who. . . ” Physicians should keep in mind that, depending on the hypothetical question, they do not need to respond with a “yes” or “no” answer. They do not need to agree with a hypothetical. The hypothetical question will inevitably be missing critical clinical information and involve a patient that the deponent has not examined or evaluated. If the question simply calls for general medical knowledge, physicians should first clarify on the record that the attorney is not talking about the patient at issue.
Second, if appropriate, physician should inform the attorney that they cannot answer the question as posed because more information would be needed to assess the patient and provide a response.
YOUR TIME TO SHINE
The key to providing a quality deposition is to practice—and physicians’ attorneys typically provide the tools to help prepare for the deposition. It is up to the physicians, however, to use those tools both in continuing to prepare for the deposition on their own and at the deposition itself. The attorney cannot answer the questions for physicians at their depositions. The physicians’ attorneys can object to a question for various reasons at the deposition, but in most instances, the physician will still need to answer the question. The objection should alert physicians to problems with the question and cause them to draw on the strategies developed during preparation to address the problems with the question.
Ultimately, physicians should practice and use the skills necessary to impress on the plaintiff’s attorney that they make good witnesses. Whether being deposed or giving testimony at a trial, it is important to remember that the physicians’ experience will not be like what is seen on television or in the movies. For sure, the stakes are usually high and the process can be intimidating. But with practice, preparation, and by following the advice of the attorneys, neither the deposition nor trial testimony need to be feared.