6 Answer only the question that is asked
This is another simple rule that is often broken. Many times, a physician will answer the question that is posed and then offer additional information that lies beyond the scope of the question. This approach creates three potential problems:
- It may lead the plaintiff attorney to ask about information that he or she hadn’t previously considered.
- It creates apparent inconsistency because the answer doesn’t match the question.
- It makes the deposition longer.
I once represented an anesthesiologist who was asked whether he evaluated the patient’s airway before intubation. He responded: “Yes, she was a red flag.”
From that point, the deposition became a downward spiral. Nobody had asked about “red flags”—or any other color of flag, for that matter—but that simple phrase changed the face of the litigation.
You can’t be penalized for not answering a question that was not asked. For example, if an attorney questions you for 4 hours but never touches on the patient’s history of a prior macrosomic delivery, you generally can’t be criticized at trial for failing to reveal the information in your deposition.
This is similar to strategy#6. As a general rule, you should refrain from volunteering information beyond the scope of the question.
The deposition is an adversarial process. Any information you volunteer has the potential to lead the opposing attorney into areas he or she hadn’t previously considered. When you volunteer information beyond the scope of the question, it may signal to opposing counsel that you are subliminally uncomfortable about some area of the case, and scores of additional questions may follow.
Opposing counsel is generally only able to obtain information from you via written questions (“interrogatories”) or directly during a deposition. If you engage in any informal pleasantries or discussions with opposing counsel in the deposition room, you could inadvertently provide information about yourself and your beliefs that the attorney would otherwise not be entitled to obtain. Therefore, anything beyond a simple handshake and “good afternoon” may be ill-advised.
This general rule of thumb isn’t hard and fast, however. Discuss this strategy with your attorney in advance of the deposition. In some instances, there may be information that should be volunteered during the process.
8 Know the medical chart
You will be questioned about your actions. If the answer is contained in the medical chart, it may be wise to refer to it to confirm the answer before you respond. If your handwriting or that of other parties is difficult to decipher, you must interpret the hieroglyphics before your deposition. It looks terrible when a physician stumbles and bumbles through his or her own handwriting or that of a trusted colleague. It’s even worse when the physician has to admit that he or she simply cannot decipher some or all of a critically important treatment note or order.
Similarly, if you are presented with a document, read it before you answer questions about it. Make sure that you receive all the pages and that the document is actually what the attorney represents it to be.
9 Resist the urge to educate
Physicians are highly intelligent people who, in addition to practicing medicine, educate their patients. A deposition room is not the place to be an educator, however. The opposing attorney may be unprepared, and by educating him or her, you may unwittingly assist them, ultimately leading to questions that produce unfavorable responses.
The opposing counsel in a medical malpractice action has very likely already consulted with an expert witness—quite possibly, with several. Those experts will have assisted the attorney in drafting questions to be put to you. Those questions will be intelligently designed to exploit potential weaknesses and conflicts in the defense.
Treat with great caution any statement by a lawyer to the effect of, “I’m just a lawyer. I don’t understand all this medical jargon.”
When a lawyer feigns ignorance, beware.
10 Take a break
A deposition can make you feel as though you are in a pressure cooker. If you need to take a break, ask your attorney to request one.
Also discuss with your attorney, ahead of time, how long the deposition is likely to take and whether scheduled or impromptu breaks are more appropriate.
Many attorneys can move from a congenial interrogation to heated questioning at the flip of a switch. You must be ready to answer questions under all conditions and stress levels. If you become emotional or combative, it may signal a weakness in your position or simply encourage opposing counsel to engage in similar tactics at the trial.