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Anatomy of a Lawsuit, Part 3 The DefendantÍs Deposition: Initial Preparation

Ronald T. Burkman, MD; James H. Hughesian, JD

Lawsuits are not necessarily won or lost in court. Rather, the outcome largely depends on meticulous preparation, and the wise defendant will give this process all the effort and attention it deserves.

In a previous edition, the authors reviewed some of the important steps of the discovery phase of a lawsuit, including the Interrogatories, the Request for Documents, and the Request for Admissions [Burkman RT, Hughesian JH. Anatomy of a lawsuit, part 2: the discovery phase. The Female Patient. 2007;32(9):22]. That phase of the lawsuit provides an opportunity for both the plaintiff and defense to learn more about the facts of the case, the strengths and weaknesses of both sides, as well as the theories on which the opposing side is building its case. Here, the authors will begin to review what may be the most important part of the discovery phase—the defendant’s deposition.

PURPOSE

Although the main purpose of the defendant’s deposition is ostensibly to allow the opposing side (plaintiff) the opportunity to assess the facts of the case from the defendant’s point of view, the process is far more then just a fact-gathering exercise. The deposition may allow the plaintiff attorney to discover the theories behind the defendant’s case and explore their weaknesses, and to assess the defendant’s overall demeanor. Regarding the latter, both the plaintiff and defense attorneys will attempt to determine whether the defendant is a good witness: is the witness well prepared, confident, and calm under pressure, and does the witness convey a sense of professionalism? Thus, the defendant’s deposition is a very important component of the case—a component that is often critical to the case’s ultimate resolution.

APPROACH

One of the first steps in preparing for the deposition is to meet with the defense team to review the procedure. The physician should listen carefully to the attorney’s advice, and be prepared to heed it. Many defendants feel strongly that the best approach is to openly discuss the case in detail at the time of deposition, but such an approach may not be in the physician’s best interest: any such statements can be used against the defense at trial. It is important to remember that the defense attorney has been through the process many times, and knows how to best present a case in a favorable way to a jury.

RECORDS

The physician should have a complete and accurate knowledge of what is contained in all records. These should include the physician’s notes, and, depending on the nature of the case, the clinical notes (eg, nurses, house staff, midwives), orders, laboratory results, consultation notes, and fetal monitoring strips. The discussion should cover both the strong points in the records, as well as weaknesses (eg, missing documentation). A complete record review avoids the possibility of conflicting notes or information surfacing for the first time during the deposition, when the physician may be ill-prepared to explain. Discussing such issues in advance will allow the attorney to suggest ways to respond to possible questions that avoid unwarranted admissions while remaining truthful.

Even with the record available, it is sometimes difficult to recall all of the details of patient care, as several years may have elapsed since the episode in question. However, the physician may have a personal recollection of the events because of the particular circumstances. Otherwise, it may be possible to reconstruct the case based on the documentation. Certainly, if the record is complete, it is one of the defense’s best tools. However, if there is no personal recollection of the case and the documentation lacks sufficient detail, answers can be based on what the physician usually or customarily does in a particular situation. Both the details from memory and customary practice in related situations should be discussed thoroughly with the attorney.

MEDICAL LITERATURE

Attorneys vary in their opinions on whether a defendant should conduct an extensive review of the literature as part of the defense preparation. On one hand, this can educate the defendant and defense team on the state of the science and allow them to compare the actual care with approaches recommended in the literature. However, some of the literature reviewed may suggest that certain aspects of the care may have been inappropriate or not the best choice. If asked at deposition, the defendant is obliged to reveal anything that was reviewed in preparation, except for information covered under attorney-client privilege. Literature reviews by the defendant are not covered by this privilege. If there is information in the reviewed literature that is not favorable to the defense, the defendant will have to accept this as a weakness in the case or suggest that the literature recommendation either does not apply or is not authoritative. It is important to avoid suggesting that anything in the literature necessarily represents the standard of care, particularly the only standard of care. In any event, the physician should discuss whether to perform such a review with the defense attorney before undertaking the task.

REHEARSAL

One of the most helpful approaches to preparing for a deposition is to undergo a mock deposition, with the defense attorney role-playing as the plaintiff attorney. It is often useful to videotape this “rehearsal.” A practice deposition helps the defendant to better understand what types of questions will be asked, how they will be phrased, and where hidden “traps” may exist in the questioning. The defense attorney (and the accompanying videotape) can also help to asses overall demeanor—ie, did the physician remain calm and professional, particularly when difficult questions were asked? Were the answers concise and accurate? What parts of the deposition could be improved? In general, the physician will be advised not to speculate on aspects of the care that cannot be supported by facts. Such speculation may not only be difficult to defend, but also reveal points that can be contested by plaintiff experts.

CONCLUSION

The importance of following the defense attorney’s advice about conduct and responses to plaintiff questions cannot be overstated; legal proceedings often follow a protocol contrary to normal social behavior or peer judgments by other physicians. Preparation for deposition is a learning opportunity, and the physician should make the most of it. A defendant knowledgeable in the process will make a better witness during the actual deposition (Table).

TABLE. Defendant’s Preparation For Deposition

Do:
Review the patient record in detail, and be aware of both the strengths and the weaknesses
Be knowledgeable about all record entries, and formulate possible responses for explaining discrepancies in advance of the deposition
Determine what can be remembered about the care in question, what can be reconstructed from the chart, and what is customary practice
Meet with the defense attorney, and be prepared to closely follow all instructions and advice
Arrange for a mock deposition, or have the defense attorney pose the likely questions so that responses can be prepared well in advance
If used, review a videotape of the mock deposition to assess responses, behavior during questioning, demeanor, and appearance

Do Not:

Speculate about aspects of care or the etiology of certain outcomes, unless there are facts in evidence that clearly support such statements
Extensively review literature or texts relevant to the case, unless the defense attorney gives permission; the plaintiff side is entitled to know what was reviewed, and some of the material may not support the defense’s case
Assume that laying out all of the facts openly at deposition will be in the best interest of the defense

In an upcoming issue of The Female Patient, the authors will cover some of the techniques used at deposition by plaintiff attorneys, and the approaches to be considered in response to certain types of questions.

Ronald T. Burkman, MD, is a member, Department of Obstetrics and Gynecology, Baystate Medical Center, Springfield, MA; and professor, Department of Obstetrics and Gynecology, Tufts University School of Medicine, Boston, MA. James H. Hughesian, JD, is attorney at law and principal, Kitch, Drutchas, Wagner, Valitutti & Sherbrook, Detroit, MI.