Risk Management and Medical Liability
A Manual for Indian Health Service and Tribal Health Care Professionals
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Section Fifteen: Giving a Deposition
During the pretrial discovery phase of malpractice suit litigation, it is not uncommon to be deposed to give testimony. The IHS or Tribal practitioner then becomes a “witness” for the defense (e.g., the Government). The plaintiff’s attorney interviews the witnesses, trying to extract information vital to his case. As a witness for the Government, the practitioner is not represented by his/her own legal counsel, but rather by the AUSA defending the case on behalf of the Government. The AUSA is there to provide guidance and assure that the plaintiff’s attorney does not reach beyond the bounds of ethical fact-finding.
Being deposed can be an agonizing experience for a healthcare practitioner, especially when his/her competence is being brought into question. Few practitioners have much experience giving depositions, so the best advice is to listen carefully to what the AUSA says in preparing you to testify, and follow their cues throughout the process. Most professional societies (such as the American College of Physicians, the American Academy of Pediatrics, and the American Academy of Family Physicians) provide guidance materials for giving testimony. There are also books and articles written on the subject of deposition process. The “Ten Rules for the Practitioner’s Deposition” on the following page have been adapted from one frequently quoted book on this subject.1
Only a few Indian Health Service or Tribal medical malpractice suits ever go to trial, but it does happen. Similar to giving a deposition, the federally or tribally employed healthcare practitioner serves as a witness for the defense. It goes without saying that both the attorney and the practitioner must be equally well prepared: the medical records, textbooks, and other sources of authority must be thoroughly reviewed before the trial. The practitioner must realize that in the adversarial climate of a trial, his or her judgment and decisions will likely be challenged by the plaintiff’s attorney and any expert witnesses who may present opposing viewpoints.
Ten Rules for the Practitioner’s Deposition
- Know the case intimately—clinic records, hospital charts, statements by other health care professionals, the medical literature, and alternative treatments.
- Listen to the attorney’s question carefully and respond only when you understand it completely. Ask the attorney to rephrase the question if you do not understand the question. Never help to rephrase it or suggest a more appropriate question.
- Respond thoroughly, but directly and to the point; do not tell stories, ramble, digress, or volunteer information.
- Use the medical record; it can be the best defense tool, especially if it is in order.
- The theatrics of the plaintiff’s attorney should be disregarded. Sometimes the attorney will act surprised and shocked by a response, use body language, or repeat certain phrases in an attempt to irritate the defendant. Such theatrics are intended to make the practitioner uncomfortable and unsure of the response.
- Be consistent with your responses. Plaintiff’s attorney may ask the question over and over, each time phrasing it a bit differently, looking for an inconsistent response. Remember that the plaintiff’s attorney has been working on these questions for weeks before the deposition; he/she will try hard to get the needed response or at least neutralize the damage from an unfavorable, unanticipated response.
- Wait for the next question after finishing a response. Often the plaintiff’s attorney will pause, using body language to urge the physician to say more. Do not try to fill the void, but simply wait patiently for the next question.
- Be extremely cautious in responding to leading questions, such as “Is it a fair statement…,” “Let me summarize your testimony as follows…,” and “Doctor, just so I understand what you are saying….” Statement like these mean the plaintiff’s attorney is about to reinterpret the practitioner’s testimony. Agree only with those statements with which you are comfortable. If you disagree, then simply say so, and repeat the previous response.
- Be careful of conversation during breaks, or before and after the formal taking of the deposition. A deposition is not the time for social niceties. Breaks should be used to relax and regain composure. One must be on guard from arrival at the deposition until departure.
- Be courteous, professional, firm, and credible at all times. A deposition is neither the time nor the place for chitchat and humor. Under no circumstances should you be offensive, insulting, or argumentative.
1 From T. Leaman & J. Saxton, Preventing Malpractice: The Co-Active Solution, pp.68-70 (Plenum, New York 1993).
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