Once a formal complaint alleging medical malpractice is made, the discovery phase of litigation begins where the parties to a lawsuit go about gathering information before trial, the rationale being to reduce surprises and encourage settlement. Discovery methods include written interrogatories, requests for documents and taking depositions of various witnesses. A deposition is a witness’s out of court testimony under oath. A stenographer or court reporter transcribes all of the questions and answers. The defendant physician’s deposition is a standard part of the discovery process and is of utmost importance. While ground rules vary among jurisdictions, the Rules of Civil Procedure give opposing counsel substantial latitude regarding questions that can be asked, and there typically is an expansive agenda with the goal to gather as much information as possible. No matter how accurate the medical records may be, interpretation and follow-up questioning will still be required. Another goal is to “lock-down” a physician’s testimony so that what was said at deposition can be used for impeachment in the event there is inconsistent testimony at trial. The strengths and weaknesses of the witness are also being assessed so the impression made at deposition can sometimes influence the opposing counsel’s decision on how far to pursue the case. While a defendant physician is likely to experience significant emotional stresses during the litigation process, some anxiety will be relieved by being well prepared. It is thus crucial to review the entire database consisting of the complete medical record and other fact witness discovery depositions to have a clear recollection of the case. A pre-deposition conference with the defense attorney is also obligatory and will include clarification of any potentially confusing aspects of the case. The physician’s CV should also be checked for any discrepancies, and counsel should be alerted to any web sites or online profiles that are relevant. It is usually helpful to conduct a mock deposition focusing on anticipated and difficult questions. Despite ongoing practice demands, the physician should plan accordingly and allow sufficient time scheduling for the deposition. It is also important to be clear about the deposition’s location and not have it occur at the deponent’s office. Following these suggestions will reinforce confidence and honesty during the deposition which will in turn be reflected in the final transcript. Once the deposition begins, opposing counsel will ask broad questions hoping to encourage answers that might reveal new facts or open up problematic areas of questioning. The witness should listen carefully to each question asked and pause before answering to allow time so that each question receives careful consideration. The transcript does not reflect the length of time it takes to answer a question. Answers to questions should be kept brief and clear. Exceptions occur when an explanation is necessary as well as when defense counsel provides specific instruction. Be alert to a pattern of questioning by opposing counsel designed to elicit only “yes” answers making it difficult to say “no” in response to an ambiguous question. While there is no rule against asking the physician to speculate, one should avoid doing so. As a sworn witness, you are required to tell the truth, not to speculate, volunteer guesses, or to make inaccurate/unfounded statements. If compelled, qualify answers by saying “approximately” or “to the best of my recollection.” Avoid the use of adjectives and superlatives such as “always” or “never” as these qualifiers can be later used to distort testimony. Questions that are not understood should not be answered. There should be no hesitation to ask for clarification of confusing or convoluted questions. The answer may simply be “not that I recall” or “I don’t know.” If questions are asked about a particular document, ask to see that document to make sure that it has not been misinterpreted or quoted out of context. Any mischaracterizations should be noted for the record. When opposing counsel becomes silent after an answer, the witness should resist the compulsion to say more. There are circumstances which come up where both attorneys may wish to have a discussion “off the record.” For the defendant physician however, nothing said is ever “off the record.” Many attorneys reserve especially important questions for later on in the deposition hoping that the defendant will be less guarded, so it is important to be well rested and ask for breaks when needed. Composure and concentration must be maintained while resisting the urge to become overly emotional and hostile. The experience is indeed stressful as a defendant physician suddenly finds their integrity and actions called into question. Thus, there is potential vulnerability to behave in ways which could negatively affect the case. Opposing counsel will test for such reactions and hope for mistakes which are recorded in the transcript. Alternatively, they may later prompt for such behavior at trial. If a mistake is made, simply state that you were in error and correct your statement. There are times where the physician is approached in an overly friendly manner in an attempt to get them to speak more freely. Opposing counsel may also act like an eager student as a tactic to obtain additional information. Remember here that the role of teaching key concepts to the jury will ultimately belong to expert witnesses retained by the defense. Hence, do not volunteer extra information or agree to supply any additional documents or other evidence. And if the deposition is to be videotaped, realize that the video will likely be played for the jury. It would therefore be important to dress appropriately, look directly at the camera, speak clearly and avoid long pauses. Fortunately, only about 7 percent of medical malpractice lawsuits ultimately go to trial, and most of these, about 80 percent, result in a verdict for the defense. By being educated and thoroughly prepared, the defendant physician will not only be better able to cope with completing their deposition, but they will also improve their odds of winning a favorable judgment.Karl G. Sieg, MD, MRO, FAPA. is medical director of La Amistad Behavioral Health Services located in the Orlando metropolitan area. Dr. Sieg has also served as a litigation consultant and expert witness in civil matters including medical malpractice and personal injury cases over the past twenty years. He may be reached at Karl.Sieg@uhsinc.com
