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Giving a Deposition

Section Twelve

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 (i.e., the government). The plaintiff’s attorney questions the witnesses under oath, trying to extract information vital to the plaintiff’s 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 health care 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 his/her 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.

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 health care 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.

Section 13: What to Do If You Are Sued Individually