Giving a Deposition

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Neurosurgery has the highest rate of medical malpractice claims of any specialty. This year for every 100 neurosurgeons in the United States, approximately 28 medical malpractice claims will be brought against them. These claims occur despite the rather remarkable fact that in comparison to their colleagues in other specialties, neurosurgeons have the lowest percentage of claimants who receive financial award and the lowest percentage of medically indefensible claims. Thus a young neurosurgeon, despite providing high quality care, can expect to defend several medical malpractice claims over the course of a career. As part of the discovery of evidence in these claims, a neurosurgeon will often be asked to provide an account of the events in question. This is known as a deposition.

The purpose of a deposition is to obtain information in advance of a trial to avoid surprise and promote a settlement between litigants. In theory, once the parties involved know the strength of their opponent’s case, they are more likely to arrive at a fair settlement and avoid further litigation. Additionally, knowledge gained in deposition helps eliminate surprises during the trial so that each side can prepare for appropriate rebuttal witnesses and allow the trial to progress based on issues of merit. As a matter of practice however, especially in larger lawsuits, some attorneys see the deposition as a game of evasion and tact with the goal of improving their client’s leverage in the case. This creates an opportunity for the physician to either provide a truthful, accurate account of the events in question or be drawn into a verbal game that is difficult to win.

If a physician is a party to a claim, they will be asked to schedule a time and meeting place for the deposition. If a physician is not a party in the claim but still a material witness, they may also be asked to provide a deposition. In this case the physician will be subpoenaed and excused only by the court or the attorney issuing the subpoena.

Before the deposition: A physician asked to provide a deposition should begin by thoroughly reviewing the case in question and scheduling a meeting with their attorney. The attorney should be made aware of everything remotely related to the claim. Nothing should be left unsaid. Do not hide embarrassing facts. Be assured that the only way an attorney can provide an adequate defense for their client is to know everything about the case in question. Anything that is said between an attorney and client is protected evidence and not subject to discovery by the opposing party. Accordingly, a case should never be discussed with friends or colleagues. Discussions regarding a case with anyone besides the physician’s attorney are discoverable evidence and those with whom those discussions take place may also be subpoenaed.

Most state courts follow the Rules of Civil Procedure adopted by the United States Supreme Court in 1938. These Rules allow attorneys great latitude during deposition. As long as questions are reasonably calculated to lead to admissible evidence, opposing attorneys may query essentially without limit. Thus a physician defendant should be prepared to discuss everything that pertains to their professional qualifications. Questions are likely to probe for information regarding: education, scholarships, honors, publications, number of cases performed in training and in practice, the type of hospital and office records that are kept, who maintains those records and how they are updated, the physician’s own criminal or malpractice record, texts or papers considered to be authoritative, and individual’s the case has been discussed with. With regard to the last question, it is always appropriate for a physician to acknowledge discussions with their lawyer when asked to do so but not describe the content of those discussions in any way.

Giving the deposition: Depositions typically take place in a physician or lawyer’s office or hospital conference room. Alternatively they may be taken over the phone or videotaped if both parties agree. No judge or jury is present but a physician should always have their own attorney present. A court reporter will transcribe verbatim everything said during the deposition.

The day of the deposition, dress should be typical for that of a regular workday. Depositions are not an appropriate time to make an impression by dressing up in a suit or down in surgical scrubs. Do not take notes or documents to the deposition. Any items brought to the deposition for reference may become admissible evidence.

Before questioning begins try to relax and do not feel intimidated. More importantly, resolve to never become angry or defensive at any time during the deposition. One of the primary tactics used by an opposing attorney is to engage the emotions of the individual being deposed. In doing so they attempt to cloud that individual’s thinking and judgment. Do not allow this to happen. If emotions become uncontrollable, simply ask for a break. Additionally, be wary of attorneys who are overly polite or cajoling. This is a common tactic used to create a sense of trustworthiness or friendship. This may encourage less care in addressing questions and lead to misuse of statements later in the deposition or at trial. While rehearsing answers is not recommended in order to avoid the appearance of providing contrived testimony, always use the utmost care in the selection of words during the deposition.

Each party has the right to examine a witness. Examination begins with the opposing counsel. The physician’s attorney may then question the physician, followed by re-direct by the opposing counsel and finally re-cross examination by the physician’s attorney. For each question try to follow this mental checklist: 1. Listen to the question: Beware of questions that have the words “never” or “always” in them. Answering these questions inevitably leads to their abuse later in the case. Also, do not be lured into definitive answers when one does not exist. Qualifying answers with “maybe” or “depends” is perfectly acceptable. 2. Understand the question: If the question is unclear or the questioner is difficult to hear, ask it to be repeated. If necessary ask the court reporter to read the question back. If the question is still unclear ask for a break to discuss matters with your attorney. 3. Think about the question: Answer questions relative to what is known. Do not assume, guess or speculate. It is acceptable to give a best recollection of events but clearly express so prior to answering. Importantly, a neurosurgeon should limit answers to neurosurgical issues. Questions related to anesthesia, critical care, radiology, pathology or infectious disease are better left to those primarily involved with that aspect of patient care. 4. Pay attention to an attorney’s objections: After a question is asked by opposing counsel, a physician’s attorney may object to the form of the question and ask it to be restated. Pause before answering each question to allow the attorney time to object. By objecting to a question, an attorney may be giving a prompt that a question is misleading or purposefully vague. Alternatively, the attorney may object and inform the physician not to answer a question. Listen to their advice and do not ignore them. Attorneys are simply trying to assure that their client’s answers will not prejudice them later in the case or be taken out of context. A corollary related to this issue is that the only questions that may be forcibly answered are those under order of a judge. If a judge orders a question to be answered, the individual being deposed must give one or face contempt of court charges. Finally, do not make a plea based on the Fifth Amendment. “Pleading the Fifth” is applicable only in criminal cases. If a criminal case is pending to a civil action (such as a medical malpractice claim) it may be applied, however opposing counsel may highlight the use of this action to a jury making subsequent evidence appear more suspect. 5. Answer the question: Answer only the question that is asked. Do not teach those in the room or make an impression about knowledge one may possess. Do not allow opposing counsel the opportunity to use extraneous statements that do not pertain to the case at hand inappropriately. Along these lines, it is important to refrain from answering hypothetical questions. Limit answers to those issues raised in the case. Attorneys may twist the conditions of the hypothetical later in the case to reflect poorly upon their opposition. 6. Always be truthful and accurate: It is absolutely essential to answer questions truthfully. Under no circumstance should an individual being deposed be dishonest or purposefully inaccurate. The risk of perjury always outweighs the perceived benefit of falsifying testimony. If it is necessary to clarify or even retract a statement, do so during the deposition. Once the deposition has concluded, a transcript will be prepared by the court reporter and mailed to the individual being deposed. The individual may have been asked to “waive signature” at the conclusion of the deposition. Never do so. Always read the transcript and correct any mistakes on the correction form that accompanies all deposition transcripts. Note that once the deposition has concluded an individual may only correct mistakes in the transcription and cannot change the content of the testimony.

Once again, it is important to be well prepared, relax, do not feel intimidated or become defensive and, most important, respond to questions honestly. Although medical malpractice claims are often times of introspection and angst for a physician, a deposition should not be the setting to address those issues. Adequate preparation and level headedness can make the deposition a time for accurately recording rather than distorting the events of the claim.

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