Excerpted from The Biggest Legal Mistakes Physicians Make: And How to Avoid Them
Edited by Steven Babitsky, Esq. and James J. Mangraviti, Esq. (©2005 SEAK, Inc.)
Most physicians will have to testify by deposition in a legal proceeding at least once in their career. A deposition is a question-and-answer session, under oath in front of a court reporter, in the course of a civil lawsuit, or less frequently, in an administrative or criminal proceeding. Physicians are commonly called on to give deposition testimony as treating physicians for patients who are claiming injuries in a lawsuit, such as an automobile accident case. When sued for medical malpractice, physicians are almost always deposed by the patient’s lawyer after the lawsuit is commenced. Physicians who serve as experts in litigated matters are also often required to give deposition testimony. Depositions can be stressful, particularly when the physician is the target of a malpractice claim. Physicians who avoid making the following mistakes will be able to get through a deposition with relatively little pain.
Mistake 1 Ignoring Requests for Depositions
Requests to take a physician’s deposition usually come via a telephone call or a letter from one of the lawyers involved in the case. Physicians who are a party to a malpractice action will be notified by their own lawyer of the deposition request. Physicians sometimes ignore or avoid these requests in the hopes that they will go away. This tactic will not work. A lawyer has the option of serving on a physician a subpoena that requires the physician’s attendance for the date, time, and location indicated in the subpoena. This requirement gives the physician no say as to when and where the deposition will be held, or on what terms. Moreover, failure to obey a subpoena can result in monetary or other sanctions from the court.
Action Step A physician who is asked to give a deposition should accept the inevitable and cooperate with counsel in scheduling the deposition for a time and place that is convenient for the physician.
Mistake 2 Failing to Seek Advice
Surprisingly, many physicians routinely give depositions without first seeking the advice of a lawyer or a clinic or hospital risk manager. A deposition is a legal proceeding. The physician who is deposed (the “deponent”) gives testimony under oath. Although most depositions are held outside of a courtroom, the proceedings are serious and the consequences of testimony can be significant for both the patient and the physician. Physicians need to know exactly what they are getting into before they raise their right hand, swear to tell the truth, and testify.
Action Step A physician who is requested to give a deposition should consult with a lawyer or, if practicing in a group setting, the group’s designated risk manager.
Mistake 3 Failing to Review Chart Entries
Physicians studying for their board certification examination would not dream of taking the test without preparing for it. Yet physician preparation for depositions is often woefully inadequate. Physicians who are being deposed concerning their medical care and treatment of a patient will be in for a thorough, detailed examination. Common sense dictates that physicians should prepare for this by becoming intimately familiar with their chart entries before testifying. Physicians who show up for depositions without having carefully reviewed the chart beforehand generally do not come across well when testifying.
Action Step It is crucial for physicians to carefully review their chart entries before the deposition to make sure that they know exactly what they did for the patient and why.
Mistake 4 Overpreparing
Although it is important for physicians to carefully review their chart entries before the deposition, there is such a thing as overpreparation. This mistake usually occurs for one of two reasons: spending time analyzing the care provided by other physicians who cared for the patient, and performing extensive literature searches concerning the medical issues in the case. One of the first questions most lawyers ask in a deposition is what the deponent reviewed to prepare for his or her testimony. Anything the physician reviewed is generally considered fair game for the deposing lawyer. A physician who reviews and analyzes another treating physician’s care can be asked if he or she found any problems with the care. A physician who reviews scores of medical articles can be examined on those articles. Too much preparation, or the wrong kind of preparation, can be dangerous.
Action Step When preparing for a deposition, a physician should avoid reviewing information that is not directly pertinent to his or her role in the care of the patient.
Mistake 5 Failing to Address Fee Issues
When physicians give testimony as experts or as treating physicians in nonmalpractice cases, they are generally entitled to compensation for their time. Physicians err when they do not confront this issue before the deposition; neglecting to do so can lead to fee disputes after the fact.
Action Step A physician should discuss fee issues with counsel well before the deposition. Physicians who are represented by a lawyer should discuss the fee issue with their own lawyer. A physician who is a retained expert should discuss fees with the hiring lawyer. Physicians who are not represented by counsel or hired as an expert should discuss fees with the lawyer who makes the deposition request.
Mistake 6 Forgetting the Ground Rules
In normal conversation, it is human nature to interrupt, to nod or shake one’s head rather than respond verbally, and to answer questions with responses such as “uh-huh” or “nope.” Depositions are not normal conversations, however. The court reporter needs to take down the testimony. It is difficult for the reporter to record nonverbal responses or two people talking at once. Lawyers often start depositions by going through the ground rules, which are typically stated as follows:
- Please make sure you understand the question before you answer.
- If you don’t understand the question, ask that it be rephrased.
- Wait until the question is finished before you give your answer.
- Answer verbally rather than with a nod or shake of the head.
- If the question asks for a “yes” or “no” answer, please answer “yes” or “no” as opposed to “uh-huh” or “nope” or a similar response.
Physicians who repeatedly fail to follow the ground rules do not make good witnesses.
Action Step Physicians should strive to follow the ground rules for depositions so that their testimony can be taken down clearly and accurately.
Mistake 7 Guessing or Speculating
Physicians often get in trouble when they guess or speculate in response to deposition questions. This commonly occurs when a physician is asked whether he or she remembers a specific fact concerning the medical care that was provided to the patient. Physicians often don’t remember the specifics of treatment beyond that which appears in the chart, and many times the charting is less than complete. It is a mistake to guess or speculate based on what a physician thinks he or she may have done. Another common example is when a physician testifies concerning treatment that was provided by another physician or is otherwise outside the personal knowledge of the deponent. If the truthful answer is “I don’t know” or “I don’t remember,” then that should be the response.
Action Step Physicians should not guess or speculate when answering questions in a deposition. They should stick to their own personal knowledge or, when asked for opinion testimony, testify only as to the opinions they have formed to a reasonable degree of medical certainty.
Mistake 8 Volunteering Information Beyond the Question
Deposition questions should be answered directly and concisely. Physicians can create problems when they wander or ramble into areas beyond the question that was asked. A question that can be answered with a simple “yes” or “no” should not be followed up with a lengthy recitation of the reasons for the answer. It is the lawyer’s job to ask the appropriate follow-up questions, to seek explanations and reasons, to challenge the witnesses’ opinions, and so forth. Invariably, when physicians volunteer information that is not directly asked, it leads to even more questions, and they often end up being needlessly painted into a corner.
Action Step Physicians must answer deposition questions truthfully, but they should strive to keep their answers direct and to the point. They should avoid volunteering information that is not specifically requested by the deposing lawyer.
Mistake 9 Venturing Outside the Physician’s Area of Expertise
Lawyers often try to get physicians to comment in their deposition on matters that are outside of their area of expertise. Physicians should not take the bait. If, for example, a lawyer asks a family practice physician to interpret a patient’s MRI scan, the physician will be better served by answering, “You will need to ask a radiologist,” than by taking a crack at an answer, unless reviewing MRIs is part of the physician’s practice and experience. Physicians who testify outside of their area of expertise lose their credibility.
Action Step Physicians should avoid answering deposition questions in areas outside of their medical specialty.
Mistake 10 Becoming Hostile or Argumentative
Physicians often come under attack in depositions, particularly when they are defendants in malpractice cases. It can easily become a hostile or an argumentative atmosphere. Some lawyers intentionally create that kind of environment, hoping that the physician will say something against his or her better judgment. Although physicians, compared with deposing lawyers, have superior medical knowledge, it is a mistake to fight with a lawyer in a deposition. Physicians risk coming across as arrogant or rude, and worse yet, may say something that will come back to haunt them.
Action Step Physicians should strive to maintain a calm, professional demeanor during a deposition, and avoid any temptation to argue with the deposing lawyer.
Giving deposition testimony is a difficult task but one that most physicians will need to do during their career. For physicians who avoid these mistakes, the deposition process will be significantly less daunting than it may initially seem.
Written by: Wayne W. Carlson, Esq.
Peer reviewed by: Angela Elsperger Lord, Esq.