Contrary to what you may think, the deposition is rarely for your own benefit. It is not there to clear up the facts so that the plaintiff’s attorney can realize just how very wrong they were for suing you. There is a common misconception among physicians that if they explain things well, their intelligent
responses will prove to the plaintiff’s attorney that the whole thing is a mistake. Or they think that they need to explain their defense clearly and thoroughly to the plaintiff’s attorney. The deposition process consists of meeting with plaintiff’s attorney face to face while they question you for as long as it takes in an attempt to lock in your testimony and to try to prove their case. The plaintiff’s attorney can then use what you say to frame questions at trial.
This is where you can do significant damage to your case. In fact, a poor deposition can adversely affect your ultimate defense and may cause you to settle an otherwise winnable case.
The truth is, the less you say the better. Do not teach the plaintiff’s attorney the facts. Let their own experts do that. Think of it this way: the deposition is a document that is going to be used against you. The less there is, the less harm there can be. And as physicians we are taught “do no harm.” So
abide by that motto when preparing for the deposition.
Preparing for the deposition
How do you prepare for your deposition? Your attorney should meet with you to explain the process. Some attorneys hire preparation specialists to help you. Make sure you understand well the basic medicine components to your case. If you are wrong on the medicine, it will not matter what your defense is. All may be lost and you have not even started the trial. So, now that you’ve met with your attorney (as opposed to before), go ahead and look things up and make sure you’ve got the medicine correct.
What should you wear to your deposition? You want to look clean, neat and professional. Nothing flashy. You want to look “put together,” like someone who will make a good impression with a jury. If the plaintiff’s attorney thinks you will come off poorly on the stand, they may keep you in a case that
they might have let you out of. You’d be surprised how many physicians disregard this basic rule.
The plaintiff’s attorney
Every lawyer has a different style. Somelike to talk a lot. Some give speeches. Some pretend to be super nice. Others are confrontational. Your lawyer can often have insight as to the style you should expect. No matter who the plaintiff’s attorneys are, there are some general rules/traps that you should look out for.
On the mic: Play it straight
Treat the questions in a business-like manner. Be polite. Answer the questions as succinctly as possible. And never parry or be sarcastic with the plaintiff’s attorneys. Don’t be funny. It doesn’t come off well on paper. Just play it straight, cool, calm and professional. If you don’t remember, don’t guess. Simply say "I don’t know." Even though it may seem monotonous, you won’t look stupid even
though it feels strange to say those words over and over.
As an example, you may not remember what your thinking was at the time you saw the patient. Therefore, when asked what you were thinking, you should say that you don’t remember. Don’t offer what you “could” have been thinking, or even what you “should” have been thinking.
Sometimes the attorney, after a few “I don’t remembers” will try to corner you by saying, “Well, now that you’ve reviewed the chart, and the labs, etc, what do you now think the patient had” (or something along those lines). Again, your answer is the same.
“Since I don’t remember my thinking at the time, just looking at the chart/labs is insufficient to generate an accurate conclusion.”
They may push harder, “Let’s just say you saw this patient today, under these same circumstances, what would you think?” This is where most doctors fold and start offering up opinions. Your answer, again, is the same:
“The presence of a patient is critical to making accurate diagnoses, so I cannot make any suppositions as to what the patient could have had, given that limited example.”
A good plaintiff’s attorney will take this one step further, they’ll turn it into a medical school type question: “If a patient presents with fever, SOB, and tachycardia, what is part of your differential diagnosis?”
The trick here is to answer as broadly as possible, give them ten possibilities. If your case is about a missed PE, don’t say, “Well, it could be PE.” Say, “It’s a very long list of conditions that meet that criteria.”
Make the attorney work for it. Make them counter with, “OK, please give me that list.” Don’t make their life easier. Don’t think that if you say something it will suddenly end the questioning. The fact is, the more information you give to the plaintiff’s attorney, the more questions they will think of. And don’t think that anticipating their next question will save time either. It will only give them
five more questions to ask you.
If you don’t offer any details, they will have to work harder and may forget to ask things. After all, they don’t know the medicine as well as you do. So unless you trigger their memory, they may forget to ask something. The goal is to force the attorneys to supply their own knowledge during the questioning process. Since you’ve forgotten more than they’ll ever know, this is clearly to your advantage.
If they ask you a question where they clearly don’t know what they are talking about, don’t go out of your way to teach them the medicine. Example: “When you gave toradol, a very powerful medication for pain, you simply covered up the symptoms but didn’t actually treat the patient?” Answer: “That is
not an accurate statement.”
Make them try to figure out what part of that was inaccurate. They made the mistake. Make them fix it. Don’t help them. Don’t tell them that toradol is no stronger than motrin (save that for trial). Don’t tell them that toradol can cure inflammatory processes as it is an ant-inflammatory medication.
Don’t tell them that treating pain is essential to the care of the patient, ethically and according to JCAHO.
It is a natural inclination to want to make the attorney look foolish and to show how smart you are. But don’t do it. You are on his turf, and you will lose.
Let your “yes” be “yes”...
No means no, and yes means yes. Don’t go into a long explanation after saying no or yes. Don’t give an explanation instead of saying no or yes. Here is an example. Q: “Do you remember how many times you visited with the patient?”
Answer #1: “No, it could have been two. Maybe three. I didn’t document it so I am not sure. I usually check on a patient at least 3 times per shift.” Bad answer.
Answer #2: “No, but I usually check on a patient at least 3 times per shift.” Better answer.
Answer #3: “No.” Best answer.
One question at a time
If a question has two or more parts, do not answer it. This is a compound question. Your attorney should object to this question. But if that doesn’t happen, you must state that you can’t answer because there are multiple questions being posed in that question. Ask for a clarification so that you can answer one part at a time. Make sure you know exactly what question you are about to answer.
If a question is preceded by a long-winded statement, wait for the end of the statement/question, then ask for clarification as to what the question was. Your answering that question may imply your agreement with the statement made just prior. Don’t get sucked in by this common tactic.
Lab values: Know your acronyms
Often times you are asked about the lab values. If you are asked to give your opinion on the CBC, don’t just hit the highlights. Go through each element, including the MCV, in excruciating detail. Make sure you know what MCV and other less commonly used abbreviations stand for.
For instance, “the white count is barely elevated at 14, the MCV is normal, the MCH is slightly low, the MCHC is normal, the left shift is barely elevated at 76, the eosinophils are normal…” you get the point.
However, if asked directly about one particular value, just answer directly to that one value.
Don’t accidentally let out how busy it was in the ED. Those types of comments open you up to comments about how little care you gave to this patient.
Be confident. If you have insecurities, they will come out. Make sure you go over the case with your attorney until all of your doubts about your case go away. Make sure you can defend anything, but offer nothing unless asked.
Ilene R. Brenner, MD, is an emergency physician at Piedmont Hospital in Atlanta, Georgia