Medical Malpractice: Don't Dread Depositions

You’ve just been informed that your testimony is needed for a malpractice lawsuit involving a case you worked. Now what? First things first. During the pre-trial deposition, the plaintiff’s attorney will try to extract information he can use during the trial. You’ll be sworn in, and everything you say will be on the record and can be used against you. The focus in the room will be entirely on you. It can be an intimidating, anxiety-ridden experience. Here’s how to best represent yourself against the allegations of a lawsuit if you ever find yourself on the hot seat.

1Rely on your attorney
Consult with your attorney beforehand and have a solid game plan in place. Your attorney has likely been through many depositions and should be able to help prepare both your mind and your emotions about what awaits you in that room. She can’t tell you what to say, beyond being truthful, but she can know the tendencies of the plaintiff’s attorney and let you know how he handles depositions so you don’t fall into his traps.

2Be strong and confident
Understand what the plaintiff’s attorney is trying to do. If he’s yelling at you, he’s not really angry at you. He doesn’t care about you. He’s trying to see if it affects you, if your voice gets weak, if you avert your eyes. He is looking for anything that might make you seem less trustworthy in front of the jury. If you can stay in control and ignore his efforts to influence you, he’ll be less likely to attempt mental tricks at trial.

3Bring documentation
Juries will believe your written, typed or electronic record more than they will your verbal testimony. Your best defense to stop someone from saying you did or didn’t do something is to document that you did it. But only bring documents requested by the subpoena — nothing else.

The reason documentation is so important is because juries believe that, at the time you were charting 2 years ago, you had no reason to lie. To the jury, your charting is an objective record they can reference. In many cases, I’ve seen accurate charting save people from being found negligent.

Charting can be a double-edged sword, however. It’s not a good look to a jury if your charting is incomplete, inaccurate or says you did something before you actually did it. Don’t falsify documents to bolster your case because there’s a very good chance you’ll be exposed as a liar.

4Tell the truth
Be accountable for your actions. If you lie during the deposition, and it gets found out, your reputation, as well as those of your facility and the other people involved in the lawsuit, will be damaged. It’s not worth it. Remember, in negligence and tort law, the winner simply has the greater weight of evidence on their side. In criminal law, guilt must be proven beyond a reasonable doubt. In a civil trial, it’s just who the jury believes more. If it’s 51% to 49% in the jury’s mind, that will decide who wins.

If a case is going to trial, the plaintiff’s lawyer wants to make you seem less trustworthy. He’ll parse your deposition for gaps in your charting or statements that can trip you up and cast doubt on your claims. When you say, “This textbook is an authority to me,” they’ll look for something in that textbook you didn’t do with the goal of planting a bit of doubt in the jury’s mind.

Don’t embellish what you did to try to look like the ideal provider. In reality, you only have to show you acted in the same manner as what an average nurse would have done in the same circumstance. You do not need to be perfect in your practice. Tell the truth and be comfortable with it.

5Rule the room
A deposition is an opportunity for the plaintiff’s lawyer to scout you for personality weaknesses he can exploit during trial. Don’t be timid or passive, and don’t surrender to his process.

The lawyer will be skilled at playing mind games. He’s going to be nice at some points and a bulldog at others. It’s all meant to disorient you and make you say something you don’t want to say. At the start of a deposition, a lawyer will often state, “I’m going to ask you a question. If you don’t understand it, let me know and I’ll rephrase it.” That’s the opening where you can start controlling the process. Ask him questions. Ask him for clarification. Now you’re making him think on his feet to rephrase questions, which disrupts his strategy.

If he says, “Tell me about your conversations with the patient,” respond with “What do you mean by conversations?” Narrow down the scope of his question so you can give an honest answer and never speculate about the meaning of a question. Ask for clarification. If his question is vague, and you assume what he’s asking for rather than absolutely knowing, you may give an answer that’s not related to what he wanted and inadvertantly give him information he can use to trip you up on the witness stand.

Also watch out for rhythm questions. Often the plaintiff’s lawyer will start the deposition by asking you several easy questions to get you into a comfortable routine. Then he’ll ask an illegal question, hoping you’ll give him information he shouldn’t have. Pause and turn to look at your attorney after each question. That will give her a chance to object if something is wrong.

Many times the plaintiff’s attorney will remain silent after you finish your answer in hopes you’ll think you need to say more. Understand what he’s doing and patiently wait for the next question. Keep your comments focused on the particularities of the case. If the attorney asks about something that doesn’t pertain to the lawsuit, ask for clarification and wait for your attorney to intervene. OSM