Deposition questions are designed to elicit damaging testimony from EPs. Plaintiff attorneys will often try to get EPs to:
- agree that a textbook or other reference is the standard of care;
- acknowledge that a misdiagnosis was made;
- state that their care was not appropriate, reasonable, or acceptable.
A “yes” response to a seemingly innocuous question about the standard of care can lead to a world of trouble for the ED defense team.
“The plaintiff attorney is looking for sound bites, to get the EP to say things in a way that helps their case,” says Kimberly Kizziah Bocell, JD, a partner in the Dallas office of the Steed Law Firm.
Bocell tells her EP clients that their deposition is, in fact, their most important involvement in the entire malpractice case: “The deposition is sworn testimony, and it’s going to form the framework of any trial testimony they might give.”
The trick for the EP defendant is to answer in a way that’s accurate and truthful, “but also pushes forward your defense,” Bocell says. Here are some common deposition questions that can get EPs into trouble:
- “Would you agree that this textbook represents the standard of care?”
“Don’t ever agree to that,” Bocell advises. There’s a good reason why plaintiff attorneys are so eager to get EPs to agree that a particular journal article or textbook represents the legal standard of care. “The second the EP in the deposition adopts that position, the plaintiff attorney will go to that source and find something in there that says exactly the opposite of what the EP did,” Bocell explains.
A clever attorney won’t confront the EP at the time of the deposition. Instead, the EP is ambushed in front of a jury. On a big screen, the EP’s statement, “Yes, I acknowledge that textbook is the standard of care,” is juxtaposed with the page where it states the opposite of the EP’s action.
“The standard of care is established through the practitioner, period — what an ordinary, prudent physician in your specialty would do in the same or similar circumstances,” Bocell says. Therefore, the standard of care is established by the actions of the collective community of EPs. “While textbooks are references and can give EPs guidance, they are not the standard of care,” Bocell stresses. To add to the confusion, attorneys don’t always use the term “standard of care.”
“Instead, they may ask if something is ‘authoritative,’” Bocell adds.
- “Was your care negligent?”
Most EPs know how to answer this overt question: Of course care wasn’t negligent. Next, the attorney continues with this line of questioning, but uses different words: “Was your care reasonable?” “Was your care appropriate?” “Was it acceptable?”
“Those words should raise the hair on the back of your neck a little bit, because they are standard of care synonyms,” Bocell cautions.
If EPs falter on whether the care provided was appropriate, reasonable, or acceptable, they’re acknowledging they failed to meet the standard of care.
“I tell doctors, ‘Your care was always appropriate, never inappropriate. It was always acceptable and never unacceptable. It was always reasonable and never unreasonable,’” Bocell says.
- “What’s your definition of the standard of care?”
EPs must understand the legal definition of the standard of care. “If they can’t answer, the attorney can say, ‘You can’t even say what the standard of care is. How can you say you have met it?’” Bocell explains.
An unprepared EP might clumsily respond that a breach of the standard of care would be intending to harm an ED patient. “Now, all of a sudden you’ve added a component of intent to negligence, which doesn’t exist,” Bocell says.
- “Was it appropriate care for you to misdiagnose a heart attack when the patient suffered a pulmonary embolism?”
If the EP answers the question as stated, he or she is proving the plaintiff’s case by acknowledging that the patient was misdiagnosed. “But there is something wrong with the premise of the question,” Bocell says. The solution is for the EP to correct the faulty premise in his or her response: “I disagree with you that I misdiagnosed Mr. Jones. But I agree generally with the concept that a misdiagnosis can alter a patient’s outcome.”
The next question might be: “Well, is it acceptable that the patient died as a result of a misdiagnosis?” This puts the EP in a tough spot. “You can’t say it was unacceptable, because it sounds like you did something wrong,” Bocell offers.
A better response: “If by ‘acceptable,’ you mean that my care was within the standard of care, then yes, I do believe my care was acceptable. That said, as an emergency physician, it’s never desired for a patient to die or have complications. It’s never something we want to see. But that is something that in our practice, we have to deal with on a daily basis. That is why there are known and accepted risks to treatment. Because we know that despite good care, these things can happen.”
- “According to the ED medical record, the last time you interacted with the patient was 2:00, correct?”
This is an opportunity for the EP to point out the realities of ED clinical practice, with countless interactions that go undocumented. Bocell says a good response would be: “I disagree. There are many times when I pop in on a patient, talk to the patient, look at the patient, or talk to a nurse about the patient. Not all of those interactions are documented.”
- “Are you aware that a prominent emergency physician reviewed your care and believes it was negligent?”
“It’s fine to disagree with what their esteemed expert says. He’s a Harvard professor? OK, well, I disagree with him,” Bocell says. In this scenario, the EP who provided the care is the ultimate expert.
“Their expert can review the literature and the record and come up with ideas and thoughts, but the defendant is the only one who truly has the answers,” Bocell stresses. “That’s a powerful thing.”
- “Wasn’t it really the fault of the consultant?”
If the EP referred the patient to a cardiologist or neurologist, the plaintiff attorney may have named the specialist as a co-defendant. A simple way to defuse attempts to create finger-pointing is to state, “That’s not my area of expertise. I am obligated to bring in the right specialists and once that happens, the patient is in their hands. I’m not in a position to evaluate the care of the neurologist because that’s their area of expertise. I would be the wrong person to ask about the standard of care for that specialty.”
“That’s an easy way for the EP to punt that question,” Bocell says. “It’s better not to do the plaintiff’s job for them by criticizing other people.” If an EP defendant blames another provider, it’s likely to backfire. “If you start throwing stones, now you’ve got this doctor and their attorney attacking your position in addition to the plaintiff,” Bocell adds.
- “Aren’t you required by the standard of care to rule out the worst diagnosis first?”
“I call this the ‘worst first’ question. It is a challenging question for lots of emergency physicians to navigate,” says L. Evan Cline, JD, an attorney at Huff, Powell & Bailey in Atlanta.
Cline encourages EP defendants to push back on any question that suggests an obligation to rule in or rule out every significant diagnosis definitively. Instead, EPs should refer to the “reasonableness” standard as the guide to ordering any tests or laboratory studies.
“An example I frequently use is patients presenting to the ED with headache but no neurological symptoms,” Cline says. The “worst first” concept would require all these patients to undergo advanced imaging to rule in or rule out a bleed or stroke. However, it would be completely unreasonable to perform advanced imaging on every headache patient in a busy ED. “Therefore, the standard of care requires providers to order testing and studies that are reasonable in light of the patient’s presentation,” Cline explains.
The series of “worst first” questions usually goes like this:
- Isn’t it true that as an emergency room physician, the standard of care requires you to rule out the worst possible diagnosis first?
- And a brain bleed in a pediatric patient is life-threatening, correct?
- So, the standard of care would require you to definitively rule that out before you send the child home, correct?
An affirmative answer to question one leaves a physician scrambling to answer questions two and three. Cline says an effective response to question one is: “I disagree with that statement. The standard of care requires us to use our clinical judgment to reasonably rule in or rule out potential diagnoses.”
That allows the EP to explain, in response to questions two and three: “Yes, a brain bleed can be life-threatening. But it is so unlikely in a child with absolutely no neurological symptoms that a reasonable ED physician would not order advanced imaging on the child.”