WHAT
EVERY PHYSICIAN SHOULD KNOW ABOUT GIVING A DEPOSITION
Brock D. Phillips
The purpose of this article is to
assist physicians in preparing for deposition by generally describing the deposition
procedure. Included are certain basic concepts physicians should understand in order to
give the best testimony possible without inadvertently helping the plaintiff's case.
Many physicians may have had their
deposition taken on one or more occasions, either as a treating physician, expert witness
or perhaps as a defendant. If so, those physicians may already be familiar with some of
the information contained in this article. Physicians should, nonetheless, review this
article carefully to refresh their recollection about deposition protocol and procedures.
To prepare for the deposition, the
physician may wish to review the relevant medical records. The physician may be asked
about materials reviewed to prepare for the deposition. A physician may answer this by
stating that he or she has only reviewed certain medical records. The physician should not
review anything else, especially correspondence from his or her attorney or insurance
carrier, to prepare for the deposition since review of those documents may require their
production to opposing counsel.
WHAT IS A DEPOSITION?
A deposition is a legal proceeding
conducted in accordance with certain court rules for the purpose of preserving the
testimony of a witness for use in court. Because a physician’s deposition is taken by
counsel for plaintiff, the deposition is usually held in the plaintiff attorney’s
office, although the physician’s attorney’s office or a court reporter's office
can sometimes be used. Physicians should prefer to not to have their deposition taken in
their own offices primarily because physicians should not allow opposing counsel the
opportunity to look around the physician’s office.
Those present at the deposition will
be the physician, a lawyer representing the physician, the plaintiff's attorney who will
question the physician, and a court reporter that will swear the physician in and record
your testimony. The plaintiff, as a party to the lawsuit, is also entitled to attend the
deposition and may or may not do so. Lawyers representing other parties in the lawsuit, if
any, will also attend. The general conduct of a deposition is relatively informal.
However, physicians should never forget the seriousness of the entire lawsuit.
After everyone is seated and ready,
the court reporter will administer the standard witness oath. The plaintiff's attorney
will then ask the physician questions. The court reporter will record everything said by
counsel and by the physician. These notes will later be typed and bound in a book called a
"transcript". Physicians have the right to review the transcript later to
correct any transcription errors. Other errors, general comments and observations should
be brought to the attorney for the physician’s attention as well.
THE IMPORTANT PURPOSES OF A
DEPOSITION
Attorneys take depositions to
discover what a witness's testimony will be and to preserve testimony for use in trial. It
is important for the physician to know what the attorney asking questions is trying to do
in a deposition if the physician wants to understand what is going on.
First, the
object of the plaintiff's attorney will usually be to discover what the physician knows
concerning the matters involved in the case. In this respect, the attorney is legitimately
searching for facts.
Second, the
attorney is looking for evidence favorable to plaintiff's case. For instance, in a
malpractice case, the attorney would like the physician to admit facts, which establish
negligence. The strategy may be to maneuver the physician into making the plaintiff's
case.
Third,
counsel's purpose is to commit the physician to statements under oath. If a physician
testified under oath in deposition as to a particular conversation, then the physician is
committed to that testimony. If the physician attempts to change his or her testimony
later, the attorney can read that portion of the deposition to the jury during trial,
forcing the physician to explain the change in testimony.
Fourth,
plaintiff's counsel may be looking for ways to discredit or impeach the physician’s
testimony. The attorney will try to have the physician make conflicting statements or
statements that conflict with the testimony of other witnesses in the case. Minor
conflicts are inevitable in every case. However, major conflicts in the testimony of
witnesses can seriously affect a case.
Fifth, the
attorney will attempt to discover what the physician’s defenses are in the lawsuit.
It is common for plaintiff attorneys to begin litigation on the basis of one claim and,
upon discovering the defenses, to shift the claim to a wholly new and different theory.
For this reason, physicians do not want to reveal his or her’s defenses to a suit any
more than the court's rules require.
| Page 1 | 2 |
|
