EXECUTIVE SUMMARY
Depositions can be critical to the outcome of any malpractice case. Risk managers should help clinicians prepare for participating in a deposition.
- Anyone deposed must respond to questions with great care.
- It is easy to offer damaging information that was not requested.
- Attorneys may take advantage of a clinician’s inexperience with depositions.
It is likely any healthcare litigation will include depositions in which clinicians and administrators are asked questions under oath. The information provided can be critical to the outcome of the case. Depositions can be stressful and difficult for people not accustomed to them. Risk managers can help by preparing participants for this experience.
In a malpractice case, the physician’s deposition will be the most important one, but other clinicians and involved personnel also will be deposed, says Christopher J. Ryan, JD, an attorney with Dickinson Wright in Ann Arbor, MI.
Each person scheduled for deposition should prepare carefully, Ryan says. Take time to consider the case beforehand and understand the serious nature of a deposition.
“It’s probably the most important contribution you will make to the case — even more important than trial because your testimony in the trial has to be consistent with your definition,” Ryan explains. “The single most important rule in a deposition is to tell the truth — which sounds obvious, but it’s easier said than done in some instances. Not telling the truth, even accidentally, can ruin an otherwise defensible case.”
The rules governing a deposition will vary between jurisdictions, but generally they involve the attorneys representing both sides, a court reporter, and the person deposed. The court reporter will take down everything said by anyone in the room.
Increasingly, depositions are conducted online with teleconferencing, Ryan notes. The video from those depositions is recorded automatically, and some in-person depositions also are video recorded. When that happens, the mannerisms and flow of conversation becomes more important.
“The risk is that the videotape may be played at trial. If that happens, you want the physician looking professional just as if they were testifying at the trial,” Ryan says. “That means avoiding any unpleasant facial expressions or mannerisms and looking at the camera the same way they would look at the jury.”
Not a Conversation
The attorney representing the person deposed can object to a question, but in most jurisdictions the objection must not suggest an answer, Ryan says. While a question is pending, the lawyer may not communicate with his or her client.
“If a question is asked and the physician doesn’t know how to answer, you are not allowed to take a break and confer with counsel before proceeding to answer,” Ryan explains.
A common mistake is for the provider to view the deposition as a normal conversation, Ryan says. The deposition does not take place in a courtroom but rather in a meeting room or other area that seems innocuous, so someone deposed for the first time may lower their guard. The opposing attorney may encourage this by speaking in a friendly and relaxed way, but Ryan says a deposition most decidedly is not a normal conversation.
“Lawyers always stress to their clients that they should answer the question but don’t volunteer anything else,” Ryan notes. “Your job is to answer the question honestly and wait for the next question. It can be awkward sometimes because that’s not how a conversation flows and that can feel foreign to some people.”
It also is acceptable for the subject to pause after the question to consider an answer before replying. This can feel uncomfortable to some people, so they might hasten to reply before giving much consideration to the question, which can lead to offering information that was not requested.
The subject must be aware the opposing attorney may take advantage of their inexperience with subtle manipulations. “I’ve seen different tactics. You can get someone into a flow answering questions one way and it doesn’t seem like some big confession is being given because you’re in the flow of what’s being treated like a normal conversation,” Ryan says.
Providers are used to having an answer to most questions, but that can be problematic in a deposition if they are reluctant to say they do not know. Ryan reminds physicians if they do not know the answer to a question, they should say so. Trying to come up with some sort of answer can lead to comments that might be inaccurate and harmful to the case.
Not a Teaching Moment
Risk managers should tell providers of a common tendency among many in their profession who are deposed, Ryan suggests. Because most providers are educators, working with residents or teaching other clinicians informally daily, they may say too much in a deposition.
“I’ve seen physicians take an approach like, ‘Let me educate the plaintiff’s attorney as to why they’ve got this wrong.’ That is not the right strategy,” Ryan says. “They may indeed have it all wrong, but your job is simply to answer the question and no more.”
The subject also can ask for clarification. “I’ve seen physicians answer questions and then in retrospect it was clear they did not understand what was being asked,” Ryan says. “It is always better to ask for clarification if there is any doubt.”
Fatigue can become an issue toward the end of a long deposition, Ryan notes. The process can be stressful, and potential mistakes can become likely when the subject is tired.
Can Create Anxiety
Risk managers may be involved with litigation and depositions regularly, but do not underestimate the anxiety they can prompt for others, says Ashish Mahendru, JD, an attorney with The Litigation Group in Houston. It is common for defendants or witnesses to develop substantial fear of saying the wrong thing or somehow harming themselves or their employer.
“The way I like to diffuse that is to tell them that unless the question is framed in a way that draws information or knowledge out of you, there’s nothing to worry about. Ultimately, the witness is in control, even though it feels like the lawyer is,” Mahendru says. “When the witness starts to understand that, it diffuses the anxiety and changes the psyche.”
Mahendru reminds defendants and witnesses they are ones with the potentially valuable information, and they should feel some sense of control.
“Understanding their role puts them in control of the information that comes out of their month, and in control of the rhythm of the deposition because a question is asked, the witness takes time to think, and then answers,” Mahendru explains. “My witnesses are told that it is an inordinately mechanical process and if you engage in a conversation, you have lost. Not lost the case, but lost control — and control is key.”
Mahendru instructs his defendants and witnesses to answer questions in the “most truthful and least verbal” way. If asked what color the sky is, the response should be “blue.” It should not be “mostly a light blue but there are some wisps of clouds that are white, and the sun is setting with an orange glow.”
“We’re not going for poetry,” Mahendru stresses. “That all may be true and factual but saying ‘the sky is blue’ is accurate and answers the question. The more the witness speaks, the longer they will stay there and the more the attorney will ask questions that were never even on their mind.”
Not Story Time
Unlike a courtroom, the subject is not questioned by both opposing attorneys. One side or the other calls the deposition, and that side is the only one asking questions.
“If it is not your deposition by your attorney, this is not the day to tell your story. That happens at trial,” Mahendru explains. “That is another empowering factor for the witness, but they realize they can’t really get it wrong here because their lawyer will come back on another day to help tell the rest of the story or clean it up. They don’t feel the need to get the whole truth out there right now, which leads to saying more than what’s needed to answer the question.”
Documents may be involved in the deposition, but Mahendru explains the deposition is not a memory test. If questioned about information derived from a chart, email, or other documentation, the best response is to ask to see the document.
“That’s a very disarming way to tell the other side to buzz off. You’re not being combative or in their face,” Mahendru says. “The lawyer may hedge and say they’d really rather hear what you remember about it, but at some point, they’re just chasing their tail. They should just show the document, or you can keep saying you’d have see it to be sure.”
One trick that people should watch for is the opposing counsel throwing out a lot of broad questions, trying to get the person to commit a concept or theme that is important to the case, and then coming back later in the deposition with more specific questions on that topic.
“They want to trip you up with the specificity after you’ve committed to a broader statement,” Mahendru says.
Use a Decision Tree
Mahendru encourages people to use a decision tree during a deposition. First, listen to the question and determine whether you understand it. If you do not, respond with “I don’t understand.” If you do, then ask yourself if you can provide responsive information. If no, the response is “I don’t know.” If the answer is yes, then respond with the most truthful, least verbal answer.
“It can sound ridiculous to put it that way because you’re just having a conversation, and everyone knows how to do that. No, you’re not having a conversation,” Mahendru explains. “The decision tree is important because it builds in time for the witness to process the question, understand it, and formulate some kind of response before saying anything. It also gives your lawyer time to object.”
Following these rules can be harder for a defendant who feels persecuted or a witness who believes the situation is unjust, Mahendru says. When there are strong personal emotions at play, the subject can be riled up easily and the opposing attorney may take advantage of that. A more disinterested party who is merely a witness, for example, will follow the instructions more easily.
SOURCES
- Ashish Mahendru, JD, The Litigation Group, Houston. Phone: (713) 571-1519. Email: [email protected].
- Christopher J. Ryan, JD, Dickinson Wright, Ann Arbor, MI. Phone: (734)-623-1907. Email: [email protected].
It is likely any healthcare litigation will include depositions in which clinicians and administrators are asked questions under oath. The information provided can be critical to the outcome of the case. Depositions can be stressful and difficult for people not accustomed to them. Risk managers can help by preparing participants for this experience.
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