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Malpractice: How to survive a deposition | ||||
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When a doctor is sued for malpractice, what keeps him up at night is the prototypical Perry Mason scenario: the imposing courtroom, the relentless plaintiff's attorney, the stone-faced judge and jury. That may be good TV, but for most physicians, it's misplaced worry. Since most cases never get to court, it makes more sense to worry about an impending deposition than a trial that may never occur. The deposition is a standard part of the "discovery" process that enables both attorneys to quiz their opponent's clients and witnesses. While depositions may seem less threatening than a trial, doctors who aren't prepared tend to let down their guard and reveal incriminating details that provide ammunition for the other side. Or they'll display anger or arrogance that would alienate a jury. These are bad mistakes, because the deposition process is designed not only to reveal the facts and the merit of the case, but also to test a defendant's credibility and how he'd perform before a jury. If a doctor performs well, the plaintiff's attorney may decide to drop the case. If he does poorly, the lawyer will be more eager to bring the case to court. If that happens, the doctor has really shot himself in the foot. All of his testimony from the deposition will become part of the court record, and can be used against him in court. So it pays to know what to expect and how to conduct yourself before you walk into the deposition room. The following tips, gathered from experienced malpractice attorneys, should help you survive the process and—ideally—avoid a trial: Be prepared. Well before the deposition, carefully review all the documents, records, and references that are relevant to the case. Then review them again just before the deposition to keep the details fresh in your mind. Alert your attorney to any areas where you feel vulnerable or uncomfortable. Ideally, he should lead you through a mock interrogation using the tough questions you're likely to face. That will expose weaknesses in your preparation, attitude, or mannerisms. Take your time. Once the plaintiff's attorney begins his questioning, don't be afraid to collect your thoughts before answering. Otherwise, you could blurt out an ill-considered response that could later hurt your defense. If the attorney pauses after you've responded, don't feel obliged to fill the empty space with additional details. Just wait for the next question. If you don't know the answer, or aren't sure, say so. If a question is legitimate, you're required to answer it. But if it seems outside the scope of the lawsuit, give your attorney time to object. If the question isn't clear, ask for clarification. If it seems tricky, take time to consider it carefully. That will also give your own lawyer a chance to object to the way the question is phrased, thereby alerting you to potential hazards. For instance, he may say, "You're asking my client to speculate." The plaintiff's attorney may try to confuse you with rapid-fire questions that seem innocuous, but might contain suppositions that could be damaging if you agree with them too hastily. Don't be afraid to ask him to repeat the question slowly. If after several hours of grilling you feel tired, ask for a break. That's better than inadvertently admitting something under pressure that will damage your defense. Keep it short. Plaintiffs' attorneys are always fishing for information that will help their case—or harm yours. So keep your answers brief and to the point, and don't volunteer information that isn't solicited. What you don't say can't hurt you. Defense attorney Evelyn Bradford from Waynesboro, PA, recalls many doctors who couldn't follow that advice. "I've had depositions where I've had to kick my clients under the table to get them to shut up," she says. "But some of them still won't get the hint, so I've had to take them out of the room and tell them I'd drop their case if they didn't stop talking." If the attorney's question seems clear, just answer Yes or No if you can, then stop. (If you mean Yes, say so; don't say "Uh huh," or nod your head, which can be misinterpreted by the court reporter.) If the lawyer asks a complex question and a simple response might be misleading, tell him you can't answer Yes or No. With such questions, it's better to respond with complete sentences so that your answer is clear, and can't be used against you. Don't try to show how smart you are. Some doctors seem to think the goal in a deposition is to score points against the plaintiff's lawyer. It's not. That's the defense attorney's job—if and when the case goes to trial. And don't assume you're smarter than the plaintiff's attorney. Remember, you're trained as a doctor, not as a lawyer. No matter how much you know about medicine, you're not an expert on malpractice law. Experienced plaintiffs' attorneys are well aware that most doctors hate to say, "I don't know." Rather than admit to ignorance about some medical issue, they'll try to answer the question. Philadelphia malpractice attorney James Lewis Griffith Sr. recalls one client who contradicted himself badly while discussing topics he didn't know well. "When I asked him about it afterward," says Griffith, "he said he didn't want to look stupid. 'Congratulations,' I told him. 'Now you don't look stupid. You just look negligent.' " Check your arrogance at the door. Given their years of training and experience, doctors tend to resent having their judgment questioned by a nonphysician. They then respond to deposition questions by getting huffy and arrogant. When Griffith is faced with such clients, he says he may consider settling an otherwise defensible case rather than going to trial and risk letting the doctor display his arrogance on the witness stand. Griffith recalls one case in which the patient claimed he'd been afraid to ask the physician any questions because he was so arrogant. "When I called the doctor to discuss our strategy for his deposition," says Griffith, "his response was, 'You're the lawyer, aren't you? Isn't that what you're getting paid for?' At that point, I figured the patient might have a valid complaint, and that we were going to have trouble." Plaintiffs' attorney Jeffrey P. Allen from Wellesley, MA, looks for such arrogance when he questions defendants in a deposition. "If a doctor's really full of himself," says Allen, "it makes our case much easier because we know the jury will hate him." Allen's advice to doctors: "If you're sued, forget what you think about trial lawyers. Check your arrogance at the door, and follow your own attorney's advice." Don't let yourself be provoked. Plaintiffs' attorneys purposely try to provoke doctors by questioning their diagnoses and treatment decisions. When they do, your job is to remain cool and professional, even if it takes some effort. Defense attorney Jack Horsley from Mattoon, IL, recalls a cardiologist who had recently been recognized as his state's "Doctor of the Year," and had an ego to match. When this physician had to appear for a deposition, his outrage was obvious. As the plaintiff's lawyer began questioning his judgment, he reacted angrily: "I'm a doctor. Are you?" Sensing an opportunity, the lawyer persisted, and the doctor erupted: "Look, you have no business hauling me in here to answer your silly questions. I'm too busy for these games." Realizing how jurors would probably react to a defendant with such an attitude, the plaintiff's attorney refused to settle. When the case came to trial, he had the doctor read that exchange from the deposition transcript. Along with other evidence, it had the desired effect. The jury awarded the plaintiff nearly $1 million. Beware authoritative references. "When a plaintiff's lawyer begins asking about the medical literature, he's not seeking your wisdom," says Griffith. "He's setting a trap for you. If you agree that some 1,000-page text is the 'bible' on the subject, you're already in trouble. No one can practice in accordance with every single statement in an entire textbook." If you're not familiar with the text or article, it's safer to say so rather than pretend to know it and have your ignorance exposed. If the text is current and widely used, Griffith suggests agreeing that it's "generally considered reliable on the subject, but not necessarily in every situation." The same caution applies if the lawyer tries to get you to agree with categorical statements that include such words as "all," "every," "always," or "never." That's when you should qualify your answer with something like, "Generally, I agree with that statement, but there are important exceptions. Let me explain." If the opposing attorney cites some "authoritative" guidelines to question your treatment of the patient, point out that those are just general guidelines, and that, in your judgment, they don't apply to the specific conditions in this case. Then explain why. Remember: You're not the expert. No matter how much you think you know about what happened, remember that you're at the deposition to testify as a defendant, not as an expert witness. It's not your job to define the standard of care in the case, or to argue about what should or shouldn't have been done. Your job is simply to explain what you did, and why, and how that met the standard of care. It's also not the time to try to tell every detail of "your side" of the story. If the case does go to trial, that's when you'll have a chance to present your version of what happened, under friendly questioning by your own lawyer. Answer only those questions that refer to your own involvement with the case. Commenting on what your colleagues did or should have done can make trouble for them—and for you. If you don't remember a particular incident, say so. Don't speculate, and don't go beyond the facts in the medical record. Don't assume you're "off the record." Some doctors think that saying, "This is off the record" will stop the court reporter from transcribing what follows. It won't. Unless both lawyers agree to go off the record, the reporter will continue to transcribe your "private" comments. That applies to side remarks to your attorney, and to what you say during breaks. If you want to talk to your attorney in private, leave the deposition room. The same warning holds for any documents, memos, or handwritten notes you bring to the deposition. If you refer to such material to refresh your memory when responding to a question, the opposing attorney has the right to examine them.
10 sneaky lawyer questions—and how to respond Before a deposition, defense attorney Richard Harden from Champaign, IL, prepares his physician clients for the tricky questions plaintiffs' lawyers use to trap them. Harden cautions clients about the importance of considering their answers carefully because they can come back to haunt them later. At trial, for example, the plaintiff's attorney may read the doctor's answer from the deposition transcript, and then ask, "Isn't that what you said under oath, Doctor, in your deposition?" Says Harden, "It's important to get it right the first time." Here are 10 of the tricky questions that Harden uses to prepare his clients, with suggested responses: 1 The hypothetical question: "Doctor, suppose a patient complains about a persistent pain in her abdomen. Would you agree that the standard of care requires you to . . .?" If you simply answer "Yes," the attorney will use that later to show that you didn't follow the standard. The proper response to such questions is: "I can't answer that based on the few facts you've given me. I'd need to actually see that patient and examine her first." 2 The compound question: "Doctor, would you agree that diabetic patients should be tested for . . . at least once a month, and that if there's evidence of . . . then the correct approach is to . . . ?" The way to handle such double- or triple-jointed questions is to ask the lawyer, "Could you ask me those questions again, one at a time?" 3 The double negative question: "Is it true that you didn't tell the patient that her shortness of breath wasn't significant?" If you answer, "No," does that mean you didn't tell her, or that it wasn't significant? With such questions, it may not be clear what a Yes or No answer means. So to avoid adding to the confusion, you might respond: "Let me restate your question to make sure I understand it." 4 The leading question: "What did you do, Doctor, when it became clear to you that your patient was suffering from . . . ?" The correct response: "I'm not sure that it was clear to me at the time." Or "I'm sorry, I don't agree with your premise. Here's why." 5 The paraphrasing trick: "Doctor, as I understand it, what you're really saying is that the patient . . . " If that's not what you meant, your response should be: "No, that's not an accurate summary of what I just said." 6 The guidelines ploy: "Doctor, the following guidelines are authoritative on this issue, aren't they?" Your response: "Those are just general guidelines for most patients with this condition. But they're not authoritative regarding this particular patient. The reason they don't apply in this case was . . . " 7 The invitation to speculate: "Doctor, would you say that patients with those symptoms should be referred to a cardiologist?" Your response: "I really can't speculate based on that limited information. I'd just be guessing." 8 The dangerous possibility: "Doctor, isn't it possible that the patient could have been suffering from . . . ?" "Theoretically that's possible, but I don't believe there was any reasonable likelihood of it in this case." 9 The rapid-fire method: If the attorney bombards you with a series of questions, without giving you a chance to respond fully, interrupt and tell him, "I'm sorry, I haven't finished answering your first question. Would you please repeat it slowly?" 10 The "just answer Yes or No" approach: If the question is complex or difficult, feel free to say, "I can't answer that question with a simple Yes or No. Let me explain why." If you don't understand the question, say so. |
