“I was going through the depositions and really stressing myself out. Not eating. Not sleeping. And I got pregnant at that time and miscarried shortly after, and obviously causality is difficult to prove, but I always thought that was part of the reason why.”
Explore This IssueACEP Now: Vol 39 – No 01 – January 2020
—Interviewee, “Doctors and Litigation: The L Word” podcast
After being served with papers initiating a malpractice lawsuit, the deposition is often the next stress-inducing event in the litigation timeline. Most physicians are unfamiliar with depositions at all, let alone how to perform skillfully during one.
An apt analogy is the EM oral boards: Imagine going into that exam (which is in no way similar to your usual practice environment or written exams) without any knowledge of the structure of the exam or strategies for success. Regardless of your clinical skills, you might fare poorly because of your lack of “boardsmanship.” Depositions are similar, and preparation for them—both the practical and psychological aspects—is key to increasing the odds of a favorable outcome in your case.
The Deposition Process
Depositions are just one part of the discovery process, the stage of civil litigation that occurs after the lawsuit is initiated. In certain states, discovery begins only after the plaintiff submits an offer of proof or affidavit of merit, demonstrating that the case has been reviewed by a physician or panel that deems it legitimate. Unfortunately, there is almost always an available “expert” physician willing to craft a theory of negligence in exchange for a tidy sum.
During discovery, parties on both sides gather information to help develop their arguments. Several facets of discovery usually precede depositions, including requests for admissions (getting each side to agree on sets of facts that will not be in dispute during the case), interrogatories (questions each side directs to the other in written form), and requests for production of relevant documents or records. Often, there is intermittent involvement of the court, as each side will inevitably be dissatisfied with the answers or documents produced, which then serves as the impetus for filing motions that compel divulgence of further information. Each motion will be ruled on by the judge after hearing arguments from both sides. Naturally, this takes time; in some cases, the discovery process can last years. While your attorney will be working steadily, your involvement in these steps is less significant, other than answering the interrogatories with your attorney and reviewing any documents your attorney provides.
The deposition is where you first take center stage. A deposition is the sworn testimony of a witness conducted by opposing counsel, often taking place in their office. The plaintiff, defendant(s), additional witnesses, and medical experts hired for their opinion are all deposed separately. Videotaped depositions are less common than simply transcribed ones; you will be notified ahead of time if it will be recorded. Every word will be taken down by a stenographer and turned into a printed book of testimony that can be reviewed, parsed, and subsequently leveraged. Your words will be quoted back to you at trial, sometimes in out-of-context excerpts framed in a way to paint you in the least positive light. This is why it’s so important to develop skills in answering questions truthfully, succinctly, and in the words of your choosing—not the plaintiff’s attorneys. Attorneys have been trained in methods of tricking you into saying things that you don’t really mean. Practice, know-how, and boardsmanship—learning those tricks—will keep you in the driver’s seat of your own testimony.
Almost as important as your words is your demeanor in a deposition. Both sides—your own attorney and the plaintiff’s—will be sizing you up in terms of how you would appear to a jury when under pressure. Are you angry? Do you appear arrogant or callous? Or do you instead appear confident and caring? Regardless of the quality of your care, if it appears you will be unlikeable to a jury, the plaintiff’s attorney will do their best to bring you to trial or hold out for a very large settlement. Emotional control is of utmost importance—and easier to achieve if you have been managing your stress.
There are many books about litigation that help demystify depositions and explain with examples how to skillfully answer tough questions. ACEP also has some online preparation tools, including a video with ACEP Past President Greg Henry, MD, FACEP, and a downloadable list of frequently asked questions at deposition—questions that can turn into traps for the unaware—along with examples of how to adeptly handle these challenges.
Here are just a few tips to get you started. (Note: this is not exhaustive, and you should defer to your attorney’s advice.)
- Talk to peers and friends. Seek support. It’s helpful to talk to someone who has been through it. Self-care is a priority.
- Read a book on malpractice litigation; most have advice on deposition preparation.
- Know the details of your chart well, including all nursing, staff, and EMS notes. You will be given a copy at deposition to reference, but you should already know the details. Anticipate how you will answer tough questions about what was documented.
- Practice answering questions truthfully and succinctly with your attorney, without offering extra information. Speak in specific medical terms; do not try to “teach” the opposing counsel. Do not be demeaning.
- Discuss with your attorney whether to do any research on the relevant medical issues, and keep all research as an “attorney-client work product.”
- Discuss how you will handle questions about co-defendants in advance. In general, deposition is not the time for finger-pointing. Do not access or review their records, or you may be deposed about them; review only what your attorney provides you (in which case, you may keep it confidential within attorney-client privilege).
- Pay attention to your attorney. They may object to certain questions and may also give you nonverbal clues when they sense a trap. Physicians have even described their attorneys stepping on their toes under the table!
- Pause and reflect before answering. This helps you focus and gives your attorney an opportunity to object if necessary. Only answer once the question is complete and you know exactly what is being asked; ask for clarification if needed. Some examples:
- If the attorney asks you run-on questions, ask for them to be broken down.
- If the attorney lists data before the question, ask to see the data to confirm it and then clarify the question. Stop looking at the data before you begin to answer.
- Be wary of hypothetical or vague questions—they want you to generalize yourself into a corner.
- Beware the double-negative question—ask the attorney to rephrase until it’s clear, or answer in a full sentence that says exactly what you mean.
- Saying you “don’t know” or “don’t remember” is preferable to vague recollections.
- Do not agree to calling any text or journal article “authoritative.”
- Take breaks when you need them. It’s usually a long day.
- When the deposition ends, do not talk about it with your attorney until you are well away from the building.
Dr. Pensa is clinical associate professor of emergency medicine at the Warren Alpert School of Medicine of Brown University in Providence, Rhode Island; associate director (education) of the Emergency Digital Health Innovation program at Brown; and creator and host of the podcast “Doctors and Litigation: The L Word.”