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The Deposition - Why, When, and How?

By Wendy Longmire, JD
Partner, Ortale, Kelley, Herbert & Crawford

July, 2019


Many physicians have had the unfortunate experience of giving a deposition. Many physicians wonder if they have a choice to participate when it comes to a deposition. Whether you are a treating physician, a subsequent treating physician, a defendant in a lawsuit, or an expert hired for the case, you may be required to participate in a deposition. The invitation for this deposition often comes via subpoena. It may also be through a request to your office staff. Should this be something you encounter, there are some rules of the road that can be helpful in navigating the deposition.

Witness testimony under oath constitutes a deposition. A deposition is the life blood of a litigation attorney. The deposition is just the opposite for a practicing physician. Why, when, and how will a physician be found with such a daunting obligation?

There are generally three ways physicians find themselves faced with a deposition:

1)  You are a treating physician of a patient who is involved in litigation. As an example, this could be a personal injury case, a worker’s compensation case, or a healthcare liability case.

  1. Many states have an ‘exemption from trial’ statute for physicians. However, it is important to remember that you are not exempt from a deposition, so schedule yourself accordingly. You control the time and place; this deposition will occur at your office, if you so choose.

  2. You will receive a notice of deposition or a subpoena, but you are entitled to schedule the deposition at your convenience and to be paid for your time. If Plaintiff or Defense counsel wants to speak with you first, with a proper medical authorization or qualified protective order, you are entitled to be paid for that as well. And, although it is your choice whether or not to have a pre-deposition meeting, you don’t have to talk with the lawyers before the deposition.

  3. You can ask for assistance from SVMIC - if need be. While you will not routinely be provided counsel if you are merely a witness, they can answer your questions or concerns about the process, including producing medical records and speaking with counsel. From a liability standpoint, it is generally not advisable to meet with a patient’s attorney without your own counsel being present if the subject of the discussion involves the quality of your care.

  4. The lawyers seeking to depose you will ask for copies of your medical record.

  5. If a fact witness, you are required to testify factually about your care of the patient but are not required to give expert or opinion testimony outside the scope of your care. In short, the law will not allow anyone to force you to be his or her expert. That is your choice, and any expert opinions are yours to give as you see fit.

  6. You may fall into the category of a subsequent treating physician in a healthcare liability case. You are not a named defendant, but are being called upon to testify regarding the care the patient received and perhaps any permanent damages or future care required. The opinions formed as a treating physician are routinely discoverable and can be inquired into by counsel of both sides.

  7. You do not have to give opinions outside the scope of your care simply because they are asked. For example, you may be asked to comment on the standard of care of others. These types of questions call for your “expert” opinions and are the kind of opinions we seek when we hire medical experts. You are not required to give those opinions unless you have been retained to do so, and you have agreed to do so.

   2)  You are a Defendant in a Healthcare Liability case.

a. You will already have counsel provided by SVMIC. As such, the deposition and what to expect will not be a surprise. You should know when it will occur, and it will most certainly be scheduled pursuant to your and your counsel’s schedule. Prepare for it but more importantly, let yourself be prepared. Devote adequate time to fully prepare.

b. How important is this deposition? It is the first impression of you in the litigation, and it occurs well before trial. It is often said that the way to do poorly in a deposition is to arrive unprepared. Remember, these litigants are usually represented by savvy attorneys who have met with experts to review the areas of medicine at issue. You will typically not get a second chance to correct any mistakes you make in the deposition, and the jury will hear at least some of that testimony.

c. This deposition is nearly always at your counsel’s offices. That can give you somewhat of a home field advantage and since you will have already prepared there, it will be familiar to you.

d. In preparing for the deposition, the key is no surprises: you certainly don’t want to be surprised by a question about your care or a medical record. Allow your counsel to review with you and prepare you for this process. There really is no substitute for good preparation.

e. In a healthcare liability case, your deposition is nearly always videotaped. This video can and will be used at trial to impeach you. As an example, if you misspeak, “perhaps I did perforate that duct,” you can expect that later, after experts are disclosed, this testimony will be used by plaintiff’s experts to attack you and then to cross-examine you at trial.

f. Thoroughly read your records and those of others if instructed. Your attorney will direct you on what to read and what areas to research.

g. Know the issues of your case - is it a known complication? Was there informed consent? You want to be able to explain, in easy-to-understand terms, why this was a known complication just like you would to a patient prior to a procedure.

h. Know your standard of care. In all healthcare liability cases, the standard of care for you and, perhaps your codefendants, is at issue. You should be able to readily define what the applicable standard of care is and then apply it to the facts of the case. While most defendants will not give opinions about the care of others in a case, you most certainly want to be able to articulate why what you did was appropriate and within your standard of care.

i. Perhaps the hardest part of the deposition, when you are a defendant, is the length. It is a long and, yes, sometimes painful process. You have been sued, and thus, you are being accused of negligent care. Many times counsel representing the plaintiffs will be aggressive and argumentative. Your attorney will prepare you for the style, but it can be unsettling. It is an undeniably emotional and nerve-wracking experience. Think of the deposition as a test - one for which you must prepare and endure appropriately. Eat before the deposition and snack during breaks. Take the breaks as needed. Sometimes, physicians will try to outlast the plaintiff attorneys by not requiring breaks. Rest assured that the breaks will not overly lengthen the process, and they will allow you to remain fresh, focused, and refueled for the duration.

j. Always remember that while you are represented, it is important that you advocate for yourself and your care, all the while being empathetic to your patient. Always be professional. Do not engage in an argumentative, condescending, or sarcastic manner.

k. Above all, remember you are the most informed person in the room about the facts and the medicine of the case. Unless there is an expert in the room, no one else went to medical school, trained in residency, and practiced in this field. No one else lived and breathed the process of caring for this patient as did you.

3) You are an expert in a case.

  1. You will have help from a competent lawyer. While they do not represent you in the matter, the attorney who has hired you will certainly guide you through the process.

  2. This is one of the occasions when you are in charge. Set your fees, and be prepared. It is important to earn your fees, by properly reviewing the medical chart and the opinions of others. Review them prior to the deposition.

  3. You have agreed to be attacked, and you can expect it. The opposing counsel for the other side will come after the hired expert in a more aggressive manner than they would a party to the suit. After all, as an expert, you have signed up for this event. Be prepared to stand your ground while maintaining your composure.

  4. In maintaining your credibility while being cross examined, it is important to concede points when necessary. In other words, while you have been hired to give an opinion for the defendant in a healthcare liability case, if you are asked a question such as, “Do you agree that the intended result of the operation was not to clip the cystic duct?”, concede that and make your points about known complications. Too often hired experts will take on the mantle of the plaintiff’s or defendant’s case and become argumentative, undermining their credibility in front of a jury. Don’t put yourself, and thus the client for which you are advocating, in an untenable position.

  5. Do your homework. The lawyer who has retained you will send you a wealth of information about the case. Your thorough examination of the information and frank discussion with this attorney can equip him or her with what they need to try, and sometimes to settle, a case. Most importantly, you will be sent the disclosures of the other experts. Peruse those closely and be prepared to articulate where you differ and identify their weaknesses.

  6. Unless the lawyer who has retained you specifically asks you to do so, do not write down your opinions until, and unless, it is time to disclose them. Your notes will be discoverable, and they will need to be turned over to the other attorney who will use them to question your final opinions.

  7. Your financial information, certainly what you earn from expert testimony, may well be discoverable. Some courts are requiring the production of this information on any testifying expert. You will want to anticipate this on the front end.

  8. Why would financial information be discoverable? In an attempt to show bias or lack of credibility, the opposing counsel may want to show that you have worked with a particular law firm on many occasions or, for example, “more than half of your income” is derived from expert testimony and not the practice of medicine.

  9. Your deposition will most certainly be used to cross examine you, and you will still be required to come live to trial.

It may be that you avoid the deposition process altogether in your practice, and I hope you do. But should you face the deposition, remember to control the setting, charge for your time, be prepared, don’t allow yourself to become a free expert, hold your ground, and breathe.

One last point is that the deposition is rarely, if ever, monitored by a judge, and thus, the actions of the lawyers can be less controlled. While there are Rules that allow a deposition to be terminated for inappropriate behavior of a lawyer or witness, usually the parties (through their attorneys) are fending for themselves, making their objections for the record, and preserving their arguments to be made in front of a judge at a later time. The best advice for you as a deponent is to stay out of the fray. “If you can keep your head when all about you are losing theirs and blaming it on you,” you will survive far better. Rudyard Kipling must have been deposed.

About The Author

Ms. Longmire is a partner in the firm of Ortale, Kelley, Herbert & Crawford. Ms. Longmire is an experienced litigator in jury and nonjury matters. In 2000, she became board certified in Civil Trial Advocacy by the National Board of Trial Advocacy, an American Bar Association accredited organization. She handles lawsuits involving medical malpractice, other professional negligence, premises liability, contract disputes, products liability and employment litigation. Ms. Longmire routinely presents seminars regarding litigation, including medical malpractice and personal injury, to various corporate clients. As a member of the Nashville, Tennessee and American Bar Associations, as well as the Tennessee Defense Lawyers Association, the American Trial Lawyers Association and the Lawyers Association for Women, Ms. Longmire stays active in the legal community. She is also a past president for Tennessee Lawyers Association for Women.

The contents of The Sentinel are intended for educational/informational purposes only and do not constitute legal advice. Policyholders are urged to consult with their personal attorney for legal advice, as specific legal requirements may vary from state to state and/or change over time.

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