A deposition is a formal legal process in which questions are asked and answers obtained. Oral testimony is taken under oath and every word spoken is transcribed. The transcript can be introduced in court as evidence if the case proceeds to trial. Depositions are usually conducted during ordinary business hours, and may last from a few hours to more than a day. Attorneys may ask any question that might lead to the discovery of admissible evidence, provided that answering it does not require disclosure of privileged information. Answers should be consistent and, above all, truthful. Knowingly making a false statement in a deposition constitutes perjury. The purpose of a deposition is to investigate the facts and issues about both the event that is the subject of the lawsuit and the deponent’s background. A deposition may be taken to preserve the testimony of a witness who will not be available at trial, such as one who is very ill. The process is also used to assess the credibility and demeanor of the witness.
A plaintiff’s attorney generally uses the deposition to elicit information that may not be contained in the medical record. The witness’ appearance, professionalism, and demeanor (i.e., his or her potential impact on the jury) are gauged throughout the deposition. Information and observations gained from the deposition are used by the opposing side to develop additional lines of questioning and to plan strategy for a possible trial. Attorneys will review the deposition transcript for any inconsistent statements by the deponent at the time of the incident, at the deposition, or at trial.
In a malpractice lawsuit, any person with knowledge that relates to the case, anyone who the patient remembers, or anyone whose name appears in the medical record may be deposed. Parties to the lawsuit, prior or subsequent treating physicians, witnesses to the incident in question, consultants, and—under some circumstances—expert witnesses all may be deposed.
If you are named in a medical malpractice lawsuit, your attorney will receive the notification of the deposition and contact you. A party to the suit does not need to be served with a subpoena. A “Notice To Take Deposition” is the only document necessary to require your attendance. Generally, if you are not a party to the lawsuit, you can only be required to attend a deposition by subpoena (a legal notice compelling the witness to appear and testify or produce certain documents at a specific date, time, and place). If you could potentially be named as a defendant based on information you provide at the deposition, will offer counsel to represent you in these circumstances.
Contact PCRRG promptly to ensure proper and timely legal representation. Your attorney has only days to file a Notice of Objection to a deposition subpoena. Avoid discussing the case or the deposition with colleagues, as such discussions are not protected from legal discovery. Conversations with your spouse, risk manager, insurance company representative, and attorney are protected.
You are not expected to have memorized every detail of the record. During the deposition, you will be able to refer to the medical record if asked a specific question about it. If you are not able to look at the record, and you do not recall the information, your attorney will advise you to say that you do not recall. Do not alter the medical records in any way. Alterations, interlineations, and addendums that are made after the initiation of a claim or suit can only appear as self-serving.
Do not consult outside sources. You need not demonstrate your breadth of knowledge. The aim of a deposition is to ascertain what you know about why certain decisions were made at the time of the incident in question. If you are a defendant or fact witness, you will not be expected to speculate —and should refrain from doing so. Restrict your testimony to what you saw, heard, and did during the treatment of the patient.
Communication with your attorney is essential and privileged. Contents of your discussions cannot be obtained by opposing counsel. If you are named in the suit, ask your attorney what allegations have been made against you and on what factual basis. Your attorney may decide to obtain the plaintiff’s deposition testimony first so you can review that testimony in preparation for your own deposition. You may be advised to review certain medical records, obtained through the discovery process, in order to better acquaint you with any care the patient has received from other clinicians. In addition, be prepared to educate your attorney about critical medical aspects relative to your case.
In advance of your deposition, your attorney will schedule a conference to plan your defense and discuss the questioning process. In complex cases, several meetings may be needed. If you feel uncomfortable about any potential questions, or are aware of possible weaknesses in your case, discuss these concerns with your attorney. Inform your attorney of all relevant papers, notes, and conversations relating to the case. Discuss all the important information you recall during the pre-deposition meeting. Your attorney will be a more effective advocate if he or she is fully informed about the case.
The deposition is usually taken in the opposing attorney’s office. While your office may seem more convenient, the likelihood of problems occurring is greater. For example, files or reference materials in open view could be observed and recorded by the plaintiff’s attorney.
Bring only the documents specifically requested in the subpoena. Do not bring any other records or personal documents. Review the records to be sure that they do not contain any additional material that was not requested or materials that require separate patient consent.
You (the deponent)
Your attorney
Your PCRRG claim representative
The opposing attorney
The court reporter
The plantiff (occasionally)
Preparation and a pre-deposition meeting with your attorney are essential. The level and type of preparation will depend upon whether you are a consultant, a subsequent treating clinician, or a defendant. If you are to appear as a defendant, your preparation will be more extensive than if you are testifying as a fact witness about a patient’s condition. Health care providers with little or no exposure to depositions may be at a disadvantage when facing this process for the first time. Your preparation should cover three important subject areas: the treatment of the patient, the patient’s follow-up care, and the relevant medical literature.
A certified court reporter administers an oath to the deponent and transcribes the testimony. The opposing attorneys generally are cordial with each other at the beginning and the questioning will appear relaxed. The initial relaxed appearance of a deposition may be misleading. The plaintiff’s attorney might suddenly ask you a startling question, such as, “How many patients have died while you were doing this surgery?” An unprepared witness can easily be shaken by this tactic. Your attorney will be with you throughout the deposition to raise legal objections, if needed, and to discuss the progress of the deposition with you during breaks. He or she will listen to every question and object to those that probe into privileged communications. Your attorney may also ask you questions to help you clarify a previous answer.
After a question is asked, allow your attorney time to interject. Your attorney can object to an improper question. When an answer would reveal privileged information, your attorney may direct you not to answer. Do not misconstrue silence to mean that your attorney is not advocating for you. Attorneys may only object to irrelevant or improper questions. The number of objections will probably be small. Often the same question will be asked several different ways.The questioner may try to force you to be as accurate and precise as possible. If you make any statements that are inconsistent with your prior statements, the inconsistencies may be used to discredit your testimony. Completely honest and succinct answers leave less room for confusion. Some standard questions will likely be asked at the start of your deposition. These are fairly straight-forward and not intimidating. They are asked to obtain basic information and to relax you. However, simple questions may be interspersed with loaded questions.
Identification: your name, residential and professional address, marital status, and the names and ages of any children. Medical licenses and hoard certifications: which dates and which states, boards, etc. Education: college, medical school appointments; hospital privileges; and types of professional practice, such as medical group, partnership, solo practitioner, or employed clinician. Publications and research: especially work related to the case. The plaintiff’s attorney would be delighted to find any medical writing prepared by the defendant that supports the plaintiff’s case.
Be honest and accurate. If you are unsure or do not know the answer to a question, say so.
Do not try to memorize answers. Familiarize yourself with the types of questions that may be used to confuse you. If you are aware of the potential pitfalls and know how to handle them, you will be better prepared to answer appropriately.
Admit that you consulted with your lawyer. If opposing counsel asks, “Did your lawyer tell you what to say at this deposition?”you may answer, “My lawyer told me to tell the truth.” Do not answer questions about the content of any conversations between you and your attorney. Such conversations are privileged and not subject to disclosure. If the topic is raised, give your attorney an opportunity to object.
Listen carefully. Do not interrupt the questioner. Do not finish his or her sentences or try to predict what will be asked of you. Your answers must be appropriate for the questions as asked, not as they should have been asked.
Do not answer incomprehensible questions. The tendency is to assume what opposing counsel meant and then answer. If the plaintiff’s attorney asks a question that does not make sense to you, ask the attorney to restate the question.
Pause before answering. Think (silently) about the question before responding. A pause also gives your attorney a chance to object to the question, if needed. If you answer before your attorney has a chance to object, you might be volunteering information that could damage your defense.
Be clear and concise. Speak directly towards the court reporter transcribing your testimony. “Yes,”"No,”"I do not know,”"I do not recall,” or “I do not understand the question” are often the only appropriate responses.
Do not speculate or guess. You probably will not be able to remember ever detail relating to the incident or patient at issue. If you cannot remember something, say so.
Refer to the medical records when necessary. Ask to look at the records or charts in question before answering. Be accurate in your reference to records, rather than guess about important facts.
Do not fill in gaps of silence. Some attorneys deliberately allow long gaps in questioning in hopes of making you volunteer information. If your answer is complete, do not feel pressured to continue talking. The transcript of the deposition only shows the words spoken, not gaps or silence.
Listen for compound questions. You may be pressed to answer two or more combined questions with one “yes” or “no” response. Insist on the opportunity to answer each one separately.
Every question is important. The opposing attorney will carefully plan the timing of the most important questions. Be aware that they may be saved for the end of the deposition or posed at a time when you are flustered or tired.
Pay careful attention to summaries of your prior statements. The opposing attorney might summarize your previous statements to persuade you to agree with something that is not completely true. Do not agree with a summary of your testimony unless it is exact.
If you’re angry, hide it. Do not argue with your attorney or the opposing attorney. Remember that your deposition testimony could eventually be heard (as transcribed) by a jury. Attorneys are generally pleased if the opposing witness demonstrates anger or rudeness. A negative attitude may be magnified in writing. An angry or snide comment may sound twice as bad when read from the transcript. Stay calm and in control of your emotions.
Avoid showing outward signs of exasperation, boredom, or fatigue. Even though the questioning may seem far too extensive or irrelevant, control your expressions. If you feel tired, angry, or ill, a short break can be arranged by counsel.
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