Did an emergency physician (EP) come off poorly during a deposition, volunteer some damaging information, or inadvertently complicate the defense of a co-defendant? If so, “it will significantly change the perspective of the defense attorney, the hospital, or the insurance company on whether the case should settle and for how much, in a way that’s going to be adverse to the EP,” warns John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA.
Paul Weathington, JD, a senior partner at Atlanta-based Weathington Smith, has seen many depositions go poorly because physicians allowed the process to consume them. “One young physician confided in me, just before he started a deposition, that he’d spent the previous evening in the library — reading books on how to give a deposition. That’s a true recipe for disaster,” he says.
Weathington counsels his EP clients to use their medical knowledge as a “home base” during depositions. “Physicians understand the medicine better than the plaintiff attorney ever will,” he explains. Here are some common tactics used by plaintiff attorneys deposing EPs:
• Plaintiff attorneys will try to get the EP to blame another provider.
If two providers are pitted against each other, “it tends to escalate very quickly. Now the case is going to get settled — it’s just a matter of how much,” says Gillian Schmitz, MD, FACEP, associate program director in the Department of Emergency Medicine at University of Texas Health Science Center.
Questions may seem reasonable enough at the time, says Michelle M. Garzon, JD, an attorney in the Tacoma, WA, office of Williams Kastner, but “actually are designed to serve as the basis for criticism of another provider, or even of the EP.”
In one case Schmitz reviewed, the medical record indicated that a surgeon took several hours to respond to the EP’s request to come see the patient. During the deposition, the plaintiff attorney challenged the EP by saying, “The surgeon said he called you right back. Are you calling him a liar?”
Schmitz offers these possible responses to such a question: “The surgeon may not have a perfect recollection of events that happened 18 months ago,” “No one knows what would have happened if the surgeon had seen him in ten minutes. The patient may have decompensated anyway,” or “It is a horrible illness the patient had. I can’t comment on what would have happened if something had gone differently.”
• Plaintiff attorneys commonly ask multiple-part questions.
“Wouldn’t you agree that Mr. Jones had back pain, spinal tenderness, and fever that should have caused you to perform an MRI to rule out spinal epidural abscess?”
Schmitz says the wrong answer to this multifaceted question is “Yes.” A better answer: “You are asking a series of questions all at once. If you ask one question at a time, I would be happy to answer.”
“Perhaps the patient did not have spinal tenderness,” she explains. “This allows you to slow down and correct the parts of the question that are not correct.”
• Plaintiff attorneys often ask the same question repeatedly, in slightly different ways.
“When they keep asking, the physician caves and says, ‘Yes, I guess so,’” says Schmitz. “Stick to your surgeon had seen him in ten minutes. The patient may have decompensated anyway,” or “It is a horrible illness the patient had. I can’t comment on what would have happened if something had gone differently.”
• Plaintiff attorneys word questions in a way that gets EPs to agree to a particular premise.
“So you just went ahead and made that high-risk decision on behalf of the patient?” When a plaintiff attorney asked Burton this question during a deposition, he responded, “I don’t agree with your use of the phrase ‘high-risk.’ I was using my medical experience to make an informed decision, and that’s what doctors do every day in this country. We don’t consider that as a high-risk maneuver or a gamble.”
“Words really matter,” says Burton. “If you don’t agree with the language that the plaintiff attorney used, you have to speak up.”
If a plaintiff attorney asks, “Doctor, are you certain that there was no foreign body in that laceration?” the EP should clarify what the attorney means by the word “certain.” Does it mean 100% sure — or simply a reasonable degree of probability? “If they mean 100%, a physician can never be 100% certain that there is no foreign body in the wound,” says Burton. “That is just impossible.”
• Plaintiff attorneys try to get EPs to make generalizations.
If a dog bite wound sutured by the EP later became infected, a plaintiff attorney may allege the care was inappropriate and constitutes malpractice. “This is a really common lawsuit,” says Burton. In these cases, plaintiff attorneys typically ask a question such as, “Doctor, would you agree with me that wounds should always be cleaned out with large amounts of saline before they are irrigated in the ED?” Before responding, the EP can ask, “Are we speaking about this case specifically, or wounds in general?”
“The specific circumstances of the case you’re being deposed about may have been unique,” Burton explains. “Physicians are not deposed to speak to the care of all patients in general.”
• Plaintiff attorneys sometimes bring a textbook of emergency medicine to the deposition, and ask the physician if he or she agrees that it represents the standard of care in the field, or is a “definitive” text in the field.
When asked this question, Burton responds, “I’m familiar with the textbook. It is a textbook in the specialty and it offers summary opinions of the authors of those chapters. It doesn’t represent a standard of care, and the opinions are not definitive.”
“Just because somebody says in a book chapter that a wound should never be closed under certain circumstances, doesn’t mean that is always the case,” says Burton. “There just is no definitive 100% certainty in the field of medicine.”
Garzon often sees plaintiffs’ attorneys ask EPs to agree to broad concepts which the attorney will later use to establish the standard of care. Some examples are “Would you agree that in forming a differential diagnosis, an EP must rule out the most dangerous potential causes first?” and “Would you agree that a provider should never needlessly expose a patient to increased risk of serious complications?”
“These broad statements may take on a different — and unintended—meaning, when applied to the specifics of a particular case,” says Garzon.
Occasionally, plaintiff attorneys imply that a certain practice is definitive by referencing a text or article. The plaintiff attorney reads the section aloud and tries to get the EP to either agree with the authors, or to take a position that can be characterized as in opposition of what the text says.
“There really is no authoritative text or reference that determines what the standard of care is for any one particular patient,” underscores Schmitz.
Give Brief, Responsive Answers
To prepare for a deposition, Burton recommends that EPs carefully think through every step of the care they provided.
“Many EPs don’t think about the global approach to what they do,” says Burton. “They are used to just doing things, but are not thinking about all the different algorithms that go into those decisions.” EPs should consider why they use a particular type of suture material, for instance, or why they order a CT scan. “I’ve seen many cases where EPs look like simpletons, because they just haven’t thought through the details,” says Burton. “They do not have a clear explanation of what they did and why.”
In many depositions reviewed by Burton, EPs gave answers that weren’t responsive to the question being asked. “Often the answer the EP gives is very tangential, rambling, or defensive,” he says. “That will come across very poorly to a jury, or to anybody reading the deposition.”
A question such as “Did you do this?” calls for a truthful yes or no answer, not a detailed explanation of the EP’s rationale. “If the attorney wants to get into the details of the medical decision making, that’s fine. But let them do that themselves,” says Burton.
Many EPs try to guess what the attorney is getting at, and quickly lose their focus on the question in front of them. “Be the doctor, don’t be the attorney,” advises Burton. “Your responses, either as a defendant or a witness to the event, should be entirely based on your medical expertise.”
It’s important for EPs to note that the medical expertise of plaintiff attorneys ranges widely. “Physicians often assume the attorney knows what he or she is talking about. I can tell you very clearly that many have no idea what they are talking about, particularly in complex situations,” says Burton. It’s possible that the EP’s longwinded response will alert the attorney to something he or she was previously unaware of. “You may mature their understanding of the issues in a way that ultimately could be harmful to your own case,” warns Burton.
Many EPs are eager to explain themselves to the plaintiff attorney, in order to absolve themselves of any wrongdoing. “The point of a deposition is not to educate the plaintiff,” emphasizes Schmitz. “You don’t want to give them any unnecessary information.”
When one EP was asked why he prescribed a medication with a known side effect, he quickly stated, “I have prescribed it hundreds of times, and only had two cases that went badly.”
“The plaintiff attorney said, ‘Oh! You had this problem with other patients?’ and it became discoverable,” says Schmitz. “Had he kept his mouth shut, the lawyer would probably never have known about it.”
• John Burton, MD, Chair, Department of Emergency Medicine, Carilion Clinic, Roanoke, VA. Phone: (540) 526-2500. E-mail: JHBurton@carilionclinic.org.
• Michelle M. Garzon, JD, Williams Kastner, Tacoma, WA. Phone: (253) 552-4090. E-mail: email@example.com.
• Gillian Schmitz, MD, FACEP, Associate Program Director, Department of Emergency Medicine, University of Texas Health Science Center at San Antonio. Phone: (210) 567-4292. E-mail: SchmitzG@uthscsa.edu.
• Paul Weathington, JD, Senior Partner, Weathington Smith, Atlanta, GA. Phone: (404) 524-1600. E-mail: PWeathington@weathingtonsmith.com.