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926 Coolidge Boulevard, Lafayette, Louisiana  70503

Phone:  (337) 235-2405, Fax:  (337) 235-0965

HOW TO BE MORE EFFECTIVE AT YOUR DEPOSITION

by Marc W. Judice
Attorney at Law
926 Coolidge Boulevard
Lafayette, Louisiana  70503

 

The deposition of the defendant in a medical malpractice case is one of the most important events in the defense of a medical malpractice claim.  Each attorney who represents a physician in a malpractice claim has his own approach to this deposition.  The following are my comments and observations, and I am certain that some attorneys have differences of opinion on some of the points.

WHAT DOES THE PLAINTIFF'S ATTORNEY HOPE TO ACCOMPLISH BY TAKING THE PHYSICIAN'S DEPOSITION?

First, is the obvious ‑‑ he wants to know what the physician's testimony is on various issues presented in the case and to "tie down" the physician's position.  Second, he wants to evaluate the physician's effectiveness as a witness.  The plaintiff's attorney will evaluate how effectively the physician will present himself and his treatment rationale to a judge or jury.  It is important for the physician who is being deposed to keep these objectives in mind.
I believe that the objectives of deposition testimony are not the same as the objectives of trial testimony.   The physician's deposition testimony should be geared to members of his specialty. I advise physicians to answer deposition questions as though there were three physicians of his specialty from three different areas of the United States listening to his answers and grading them. The reason for maintaining this professional dialogue is that the only relevant individuals who are going to read the physician's deposition  testimony  concerning  medical  issues  are  other


physicians. Therefore, the physician deponent should be addressing his answers to members of his professional specialty.
By answering deposition questions using terms and phrases he would use if presenting his answers to physicians from his specialty, the physician maintains a distinct advantage because he is on his own "turf"; he is using terminology with which he is familiar; and he is answering the questions in good precise medical terminology.


Often the plaintiff's attorney will ask the physician to explain his answer in "layman's terms."  When asked for layman explanations, the physician should proceed with caution.   The physician does not want to appear obstinate in his deposition testimony,  but he should not be too relaxed or generous  in explaining complex medical observations, procedures or phenomena in "layman's terms" that are not accurate.   For example,  if a physician deponent indicates that a vein or artery is "just like" or "the same as" a garden hose, what is going to occur?   The physician will no longer be questioned on properties of arteries and veins, but rather from that time on the plaintiff's attorney will talk about nothing but garden hoses, i.e., the properties of garden hoses, how garden hoses react when they are placed under tension, how garden hoses react when they are clogged, how garden hoses react when they are bent, how garden hoses react when they are clamped,  how garden hoses react when they are cut,  how effective garden hoses are when they are repaired, etc.  The lawyer will naturally proceed in this direction because he is very familiar with garden hoses and not familiar with the properties of arteries and veins.  This is a very simple example, but hopefully it illustrates the point.  The main objective of the deposition is to have the physician answer the questions posed concerning his medical rationale and motivation in treating the patient; the defendant physician should not feel it is his obligation to explain his  rationale  and  motives  until  the  plaintiff's  attorney understands them.
In answering requests for "layman's explanations,” I think it appropriate for a physician to "caveat" his response. For example, the physician should indicate that in layman's terms an artery or vein is somewhat similar to a garden hose in that they both have a lumen, but that this analogy is a very rough one.  In other words, unless the "layman's term" is a term that would be used in medical school, or in residency programs, or in discussing a particular case with colleagues, the physician should not use the "layman's example" in a deposition without clearly limiting the use.  The physician should clearly identify in his testimony the fact that he is talking in "gross generalities" and constantly remind the record that he is discussing something in other than usual medical terminology at the request of the plaintiff's attorney.
Despite what many physicians think,  the purpose of the deposition is not to present in its entirety the rationale for the treatment of the plaintiff.  Explaining the physician's position clearly to the plaintiff's attorney in a deposition will not result in the plaintiff's attorney dismissing the 1awsuit or medical review panel complaint. The purpose of the deposition is to answer the questions that are asked and to answer them completely, precisely and concisely.  Once a physician's opinion or testimony is given in a deposition it is frozen forever, and a successful trial attorney will pick up and point out any inconsistencies between later trial testimony and the deposition testimony.  For that reason, preparation by the physician for his deposition should be as intense as preparation for trial testimony.


The above recommendation is a very simple one.  A physician should not answer the question that the plaintiff's attorney wanted to ask but did not ask.  The physician should answer the question that was asked. The physician should not answer a question that he does not understand or that he finds confusing.  If he does not understand the question, the physician has the right and duty to request clarification. He should ask the attorney: "Please repeat your question, I do not understand."  Or say to him:  "Are you asking me if a CT scan is ordered each and every time a patient tells me that he has fallen on his head from more than five feet? Is that your question?"  The physician should understand exactly what is being asked before he answers.
The physician should not state unequivocally that he has given every possible reason why he did something or every possible indication or symptom of a particular disease.   No matter how familiar the physician is with the particular medical issue being discussed, I think it is always appropriate for the physician to indicate that he listed all that he can recall at the moment, or all that comes to mind, or all that he can think of at the present time.  The physician should leave himself the opening that he may have,  despite the best of his efforts,  not listed all the complications or all the complaints or all of the particular indications for particular treatment.
The physician may be asked if an article or author is authoritative.  This is an attempt to have the physician indicate that only that article or author's opinion is acceptable medical practice or is the only acceptable standard of care.   If the physician agrees, then any deviation from the exact practice presented by the article or author is a deviation from the standard of care by the physician's own testimony. Physicians may indicate that a medical source is well respected, widely followed, well known, accomplished expert, etc. However, a physician should never indicate there is only one absolute acceptable medical opinion.  To admit that a publication, article or author is "authoritative" is in legal jargon stating just that.  This should be avoided because it is almost always incorrect.


The second purpose of a deposition is to allow the attorney taking the deposition to evaluate the physician's effectiveness as a witness.   This goes beyond any evaluation of his medical knowledge and acumen.   Therefore,  it is important that the physician's demeanor at a deposition, as well as his appearance convey that he is in command.  The physician should appear to be conservative, conscientious and concerned. The physician should be aware of his speech and speech patterns.  The physician should practice good eye contact during the deposition.   If a video deposition is being taken, the physician should remember to look into the camera when giving testimony.

IN GIVING A DEPOSITION, THE PHVSICIAN SHOULD BE WELL-PREPARED. ACCURATE AND COMPOSED.


Recall, in a  malpractice deposition a defendant physician deponent is going to be extremely nervous and may be defensive.  He may feel as though the entire medical community or the entire world is listening to everything he has to say in his deposition, and the listeners will be critical of him.  The degree of these feelings will vary with each individual.  However, having observed a large number of defendants being deposed in professional malpractice claims, I know that all are under stress, nervous and apprehensive, This attitude is understandable.  It is similar to the situation a patient faces when taken into an operating room or a procedure room for the first time.   The patient sees all of the apparatus, equipment, machinery, etc., and it scares him.  No matter how many depositions a physician has given in lawsuits involving automobile accidents, or other types of cases, the deposition that a physician gives as a defendant in a medical malpractice action is totally and completely different.   The physician should be aware of that difference.    Therefore,  it is extremely important that the physician be well prepared, rested and should expect to feel very uneasy.
During a deposition, often a deponent will "lose confidence in himself" or "begin to doubt himself."   He should expect such feelings to occur more than once during the deposition.  At these times, the physician should refer to the hospital records, office charts and other material until he recalls the rationale or reasons for his actions.  There is an answer, and it will be found by a review of the records. The key is not to sneak until the physician knows what to say.  The physician should take time to re‑read the office chart, entries, progress notes, nurses' notes, etc., before responding.  He should utilize these records to his advantage. There is no reason why the physician should not review entries when asked about a particular treatment day's decision during his deposition.   For example, if there is a question concerning progress note written on the 14th of October, he should take time in the deposition before answering to find the progress note for the 14th.  He should read that progress note again to himself. Also, he should read the progress note for the 12th and 13th and perhaps even the progress note for the 15th and 16th to himself. It is not the speed with which he answers the deposition question that is important; the only critical factor is the correctness of the physician's answer.  By reviewing the progress notes for the days before and after, the physician is refreshing himself with the "trend of care."  In making medical decisions a physician often reviews prior progress notes.  Why shouldn't he do the same in giving his deposition? By taking time to refresh his memory of the patient's condition during the relevant period of time,  the physician's answer will be more precise, concise and accurate.  It is the quality, accuracy and preciseness of his answer that is important, not the speed with which his answers gush out.   The physician should not guess.  If he cannot recall at the time of the deposition, he should so testify.


The physician should pause before answering every question. This is a good habit to acquire.  First, it allows his attorney to enter any objections he may have to the question.  The physician should listen very carefully to the basis for the objections. Second,  it will force him to organize his thoughts and have everything in line before he begins speaking.  Often, a deponent, who is nervous, will tend to speak a great deal more than is necessary as a response to his apprehension and uneasiness.  This can be extremely damaging.  The objective is to answer the question asked precisely and completely; then to stop talking.
The physician should not argue with the plaintiff's attorney and, if at all possible, should not let the plaintiff's attorney know that he is uncomfortable or angry.  Frustration and anger by the physician uses up a great deal of energy,  is counterproductive, and will work to the advantage of the attorney deposing the physician.  If at any time during the deposition the physician feels that he is "losing composure and control", feels that he is getting angry, feels uneasy, or needs a break, he should request a break.  A simple:  "Excuse me, gentlemen, may I take a break?" or "I would like a cup of coffee" or "Could I get a drink of water?" is acceptable and recognized.  An angry and agitated physician is exactly what the plaintiff's lawyer wants.  A tired, fatigued. angry. frustrated, and exhausted Physician deponent cannot and will not give an effective deposition.  The physician should take frequent breaks to refresh himself and, if need be, recess the deposition if he is too tired or exhausted.   The deposition testimony is too critical for the physician not to be at his best.


     Unfortunately, physicians of today must know how to articulate their position in a straightforward, calm and composed manner while under fire.   The deposition is often a test of endurance and determination.  The plaintiff's attorney hopes the physician will become angry since this may,  and probably will,  distract the physician from giving good, precise and accurate answers.   An exasperated, fatigued or angry witness does himself little good.
Also, the physician should not discuss with his attorney any aspect of the case in front of the court reporter, other attorneys or individuals unless the comments are not confidential or are not material to the case. The attorney‑client privilege can be lost if the comments are made to the attorney in the presence of a third party.
The physician should avoid making condescending, sarcastic, disparaging or derogatory comments.  Although the comments may be amusing during the deposition, the same remarks repeated later in a court of  law may be used to  illustrate the physician as "uncaring"  or  "unmoved  by  human  tragedies"  or  "callous  and indifferent.  Remember everything said during the deposition will be recorded and reduced to writing for use against the physician at the later trial.
In order to increase the physician's effectiveness in a deposition, I think the physician deponent should select the place where the deposition is being taken, if that is possible.


For example, if the physician feels comfortable in taking his deposition at his office, then he should request that the attorney have the deposition scheduled at his office.  However, for some physicians, the taking of his deposition in his office is an unwise decision.  Taking a deposition in a physician's office alerts all of the staff, nurses, secretaries, etc. that there is in fact a malpractice claim filed.   Having all of the lawyers,  court reporters and anyone else present in the physician's office may cause a great deal of disruption and discussion among the staff. Further,  for  certain  types  of  practices,  the  incidence  of depositions is extremely low and therefore a deposition at the office may be very disruptive for the office and create additional pressure on the physician.  Additionally, the physician's office may not be equipped for the taking of the deposition.  The purpose is not to make the plaintiff's attorney comfortable; rather the objective is to make the physician comfortable.  Therefore, if the physician has no problems in having lawyers, court reporters and others  coming through his office, sitting  in his  office  or conference room to take his deposition, then that is where the deposition should be taken.  Some physicians prefer to go to be deposed at their attorney's office. As stated, the location chosen should be one that will give the doctor the best advantage.  It is not chosen for the convenience of the attorney or court reporter.

THE KEY TO A SUCCESSFUL DEPOSITION IS PREPARATION.
Prior to the deposition, the physician should meet with his attorney and openly, candidly, and thoroughly discuss the case.  I think this meeting should occur a few days before the deposition. The physician cannot rely upon the attorney to know each and every medical issue or question that will be presented.  A lawyer, no matter how many years spent in working with physicians, is not a substitute for a physician's review of a case for problem medical areas.  For that reason, the defendant physician must candidly look at his records and treatment for areas that might cause difficulty. The physician defendant should start by going to medical text and medical journals that deal with the particular procedure or disease in  question  and  review  them.    That  is  probably  where  the plaintiff's attorney is going to start in terms of preparing his case against the physician.  The deponent should not be afraid or feel uneasy about discussing with his attorney issues or questions that the physician thinks will give him difficulty, or answers with which he is not particularly comfortable.  Dealing with wording is the attorney's stock in trade.


The physician should know the involvement of other physicians in the patient's care prior to his deposition.  The fact that the deponent is a medical doctor does not mean that he should, or can, give opinions as to what is, in fact, the standard of care for a particular specialty that is not his specialty.  Therefore, the physician should not feel embarrassed to defer to a physician in another specialty as to a particular procedure that would be involved in that specialty.  To defer to the other physician is an act of professional courtesy.  It is natural, for example, for a plaintiff's attorney to want a pediatrician to comment on when an OB/GYN should commence a C‑section or to ask an OB/GYN how a pediatrician should suction the child following a C‑section.  The pediatrician has his area and the OB/GYN has his area.  Neither of them should have any problems with deferring to the other on issues that are germane and relevant to the other's specialty.   The physician should not create a problem with conflicting testimony between himself and a physician from another specialty when it is not necessary.
The physician should pay close attention to the objections that are lodged by his attorney during the deposition.   The attorney's objections are often focused on the form of the question because the attorney feels that there is something inherently wrong with the wording of the question.  For example, the physician's attorney may feel that the plaintiff's attorney is mis‑stating the record or adding facts not present in the case.  There are no "trick" questions if the physician pays close attention to each question asked and only answers questions he understands.
Also, the physician should not allow the plaintiff's attorney to put words in his mouth or mis‑state the physician's testimony in a preamble to a question.   The physician should not accept the plaintiff's  attorney's  "summary"  of  the  physician's  earlier testimony if it is inaccurate.  If part of any statement made by the plaintiff's attorney is incorrect, the physician should correct it.   Also,  a physician need not simply answer yes or no to a question unless that is his answer.  If the physician's answer must be explained or conditioned, the physician has the right to do so.


A physician should listen very carefully to all hypothetical questions.  The plaintiff's attorney is asking questions about how to treat a "hypothetical" patient in hopes that the answer to the "hypothet" will be different than the care given to the plaintiff. Why else is the plaintiff's attorney using a "hypothetical case" question rather than discussing the plaintiff's treatment? Later, the plaintiff's attorney will attempt to show that the physician's answer to the hypothetical question proves that the physician provided substandard care to the plaintiff.  The physician should be very alert and listen very carefully whenever hypothetical questions  are  posed.    The  physician  should  not  answer  the hypothetical question based only upon the facts to the hypothetical question as given by the plaintiff's attorney and should never assume other facts.  If there are not enough facts given in the hypothetical question so as to allow the physician to give an opinion, he should so state.   Often a plaintiff's attorney will supply only a very few facts in a hypothetical question and the physician  will  answer  by  assuming  that  the  "facts  of  the plaintiff's care" are included in the hypothet.   If the facts stated in a hypothet are not sufficient to base a medical opinion upon, then the physician should ask for more facts or indicate that he can not give medical opinion only on the facts given in the hypothet.  Hypothetical questions serve no purpose other than to establish that the physician did something substandard in his treatment of the plaintiff.
The physician should readily admit in his deposition that he discussed his case with his attorney.  That is why the physician has an attorney.


The physician should try to give answers in a positive and straightforward manner.  The physician should try to avoid saying "I guess" or "I assume" before answering any question.  In some circumstances the physician may not be certain and should preface his answer with "to the best of my recollection...." If  a  plaintiff's  attorney  is  being  repetitive  in  his questioning, it is appropriate for the physician to state "I've already  answered  that  question...."    The  guidance  of  the physician's attorney should be followed as to how many times the physician must answer a question.  Remember, the reason for the plaintiff's attorney asking a question more than once is the hope of getting a different answer from the physician.
Should the attorneys argue over procedure or the propriety of deposition questions, the physician should listen but not become actively involved in the dispute.   When his attorney begins speaking, the physician should stop talking and listen.
The physician should be on guard against the friendly attorney who simply wants to understand, and seems very eager to listen to every word the physician wishes to utter.  A good attorney will allow the physician to speak to his heart's content.   This is dangerous.  When the question has been answered, the physician should stop testifying.   More often than not, the plaintiff's attorney will attempt to lower the physician's concentration level by giving the feeling that the plaintiff's attorney is a "good ole boy" who will drop the case if he only "understands" the medical issues involved.  The case will be dropped only if the plaintiff's attorney's physician experts tell him he has no case.

POST‑DEPOSITION READING AND SIGNING
A careful  reading of the deposition after  it has been transcribed is critical. Louisiana Code of Civil Procedure Article 1445 provides for submission of the deposition to the witness for reading and signing.  The witness may make any changes in form or substance which are then entered in the deposition by the court reporter with a statement of the reasons given by the witness for the changes.  The physician should obtain a copy of  La. Code of Civil Procedure Article 1445 from his attorney and read it before the physician reads and signs his deposition.


There are several books and publications available for physicians who are going to be deposed.  The Louisiana State Bar Association's pamphlet entitled "So You're Going to be a Witness" addresses preparation for trial testimony, but is also beneficial when preparing for a deposition. Remember, the defendant physician can lose his case in his deposition.

 

 

 

 

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