Physicians who practice medicine in the current climate will likely have contact with the legal system. Instead of becoming concerned and retreating from this process, it is best to become engaged, obtain counsel, and treat the legal system as another part of your challenging medical career.
Every single time a physician is deposed everything that he or she says can, and will, be used against him/her in a future proceeding.
In other words, each time a physician-witness is placed under oath and asked medical questions, the answers can be used against that physician in that case or in any future proceeding. Plaintiffs can now legally present limited statements of the physician-defendant during trial to the jury as qualified admissions. These statements are often presented by videotape and go unrebutted until the defense case-in-chief where the physician is subsequently able to explain the testimony.
The strategic use of deposition statements as party admissions is an effective tool for the plaintiff’s Bar and leads to the undeniable fact that a malpractice case can be won and lost at the time of the defendant’s deposition.
The goal of any deposition session is to provide context and explanation for one’s decision-making and care without opening ancillary doors and without commenting on outside care.
From a legal perspective, a practitioner does not always need to make the correct diagnosis; the actions that were taken simply need to be reasonable. Establishing the reasonableness of any treatment is much easier if the physician is prepared to articulate and explain what, when, how and why they implemented the treatment plan chosen.
If an adverse attorney or a jury hears from a reasonable physician who can adequately support (even in hindsight) the diagnosis, treatment or plan that was carried out for the plaintiff-patient, this same audience is more likely to accept that the care provided was reasonable.
The deposition setting is the first time in which the physician is assessed by the former patient, by the adverse counsel, and by all counsel of record in the litigation. The physician should treat this as an opportunity to impress, enlighten and educate.
Physicians do not need to practice defensive medicine, but instead the physician-witness must carefully and succinctly explain to this listener what the physician observed clinically, what was considered at the time of the care, and why the physician proceeded in the direction being questioned as allegedly negligent.
The charting and documentation available from the contemporaneous visit or admission is the first step in this process; the medical chart has already been produced and reviewed by the attorneys. The deposition testimony can provide the physician’s verbal context for the notes (or lack of notes) available from the time at issue.
Most important, be prepared about both the substance of the underlying medicine and the strategy of the claim or defense. A physician must have an attorney they trust, who has knowledge of the case. Meet with your attorney, review all relevant material, including records, depositions, literature, guidelines and hospital policies. The physician-witness should arrive prepared with both medical and legal knowledge. The physician should be able to define the standard of care and use it to their advantage.
Specific to the standard of care, embrace the legal concept while concurrently asserting that the medical treatment provided to the plaintiff-patient complied with this imaginary legal line. Contemplate the standard and do not raise the bar unnecessarily.
Physicians should work with their counsel to avoid comment and estimation regarding other providers’ notes and entries. There is no benefit to guessing or speculating regarding what a different provider was thinking, feeling or planning.
Questions can be tough or so obtuse they make no sense. Only answer a question you understand. Do not guess. It is okay to respond with an “I do not know” or an “I do not remember.” Physicians have been trained to offer information to patients and to explain; these may be helpful practices with patients but not with attorneys.
There are three types of questions: fact, standard of care and hypotheticals. Fact questions are basic medicine or information that can be obtained directly from review of the patient chart. A physician must become familiar with the patient-plaintiff and the charting before providing testimony regarding the details of treatment.
Standard of care questions are used by the nplaintiff to get the physician to contradict their care or the care of others. These questions are designed to have the physician create a higher standard and then concede that the standard was somehow violated or undermined. The standard of care is not general, and neither are these questions – they are specific to the case and your answer must “deny” that the standard was violated.
Hypothetical questions are the plaintiff’s attorney’s best mousetrap. Do not get caught in the trap, do not be tempted by the cheese. Every hypothetical is directed at your case. It is best to approach the answer with an attitude of “it depends on the patient” and “not necessarily.” The physician is always speaking about the patient and this situation at issue in the litigation.
Things to do and not to do in a deposition:
- Answer questions concisely. Think before you begin your answer. Consider the broader implications of your response. Contemplate what the answer will mean in terms of this patient and the care provided by yourself and others. Stay in your lane. Keep with the theme of your specific defense and the global defense.
- Do not speak for other providers’ entries. Do not speak for the electronic record entries. Do not guess regarding what another provider or facility may have meant or intended. Do not agree that you would have reviewed “everything”; instead consider what “everything” entails and qualify the agreement accordingly.
- Work to avoid the use of general words like “always” and “never” at the time of testimony as these are vague, overly-broad and will entice the plaintiff into proving that you did indeed do “X” when you said you never would.
- Do not agree to a differential diagnosis that you did not have or make. Do not accept a plan or an impression if it was not your own on that date. Do not comment on another provider’s intent or plan. Do not predict or speculate regarding how another physician may act or what the patient may do.
Once a deposition has been given, each question and answer will be qualified and treated as an “admission” and this can subsequently be read, played or published for the jury’s consideration as evidence. This literally means that each word, phrase and answer selected by the physician-witness at the time of deposition is crucial to the defense.
Practicing reasonable medicine is the goal of every physician and when preparing to memorialize your care and your practice, there is no amount of consideration and preparation that is considered too much. A physician is required to be reasonable, not right. It is the deposition that allows the physician to explain and medically justify the care provided. Be prepared — be overly prepared, practice and work with your attorney. Remember, you only get one shot to set the record straight.