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A Physician's Primer: Tips on Offering Depositions and Sitting Through Trials

By Daniel J. Sullivan, MD, JD, FACEP, Chairman, Department of Emergency Medicine, Ingalls Memorial Hospital, Harvey, IL.
If you have practiced emergency medicinefor any length of time, you have probably been embroiled in the process of litigation. For physicians who work in a big, busy practice, it's only a matter of time. The following article outlines successful ways to offer a deposition and guides the physician through a trial. When your times comes, you can be prepared for the plaintiff's attorney.

Introduction

Jurisdiction. A malpractice lawsuit is a civil proceeding. It is adjudicated in a civil court and governed by substantive and procedural laws. One of three court systems may have jurisdiction over a case: state court, federal court, or the courts of another state. Here is how that jurisdiction is obtained:

State Court. A malpractice suit against a physician is most likely to be filed in the state court of the county where that physician practices or lives. If the treatment took place in a different county, the suit may also be filed there.

Other venues are possible in cases with more than one defendant. A suit may be filed in the home county of any one of them. If they are partners, the jurisdiction can belong to any county containing a partnership office or a hospital at which one or more of the partners practice.

Federal Courts. A malpractice case may be heard by a federal court if: 1) the plaintiff is a citizen of one state and no defendant is a citizen of the same state; 2) if a defendant is not a U.S. citizen and none of his or her co-defendants are citizens of the state where he or she practices; or 3) if the malpractice case is joined to a federal action (i.e., pendant jurisdiction), such as a case brought under the Emergency Medical Treatment and Active Labor Act (EMTALA).1 Even if heard by a federal court, a case will nonetheless be tried according to state law.

Out-of-State Court. A physician can be sued in another state if he: 1) treated the plaintiff there; 2) regularly practices there; 3) lives in that state; or 4) maintains an office within it. The physician must be represented by an attorney licensed to practice in that state.

What must be proved against the physician? Our legal system is an adversarial system. Its function is to provide an orderly arena in which opposing sides can present conflicting interpretations of the facts and ask a jury to decide which is more probably true. In order to win a verdict of malpractice, the plaintiff's attorney must persuade the jury of three things:

• Injury. First, the plaintiff must prove that the plaintiff was, in fact, injured. This must be a tangible, physical injury. In addition to a physical injury, she may claim a non-economic damage, such as "pain and suffering" or "loss of consortium (i.e., conjugal fellowship of husband and wife)."2 The plaintiff may not claim mental damages alone, without physical injury. Remember, no harm, no foul!

• Negligence. As the judge's instructions to the jury explain, the plaintiff's counsel must prove that a physician had a "duty of care" to the patient, and that there was a breach in the standard of care. Duty + breach = negligence. The jury instructions define negligence as follows: In treating a patient, a doctor who holds him or herself out as a specialist and undertakes service in a particular branch of medical, surgical, or other healing science, must possess and apply the knowledge and use the skill and care that a reasonably well-qualified physician in the same field, practicing in the same locality, or in similar localities, ordinarily would use in similar cases and circumstances. A failure to do so is a form of negligence called malpractice.

This definition leaves considerable room for interpretation, particularly in determining what constitutes a "similar" locality, case, or circumstance. The jury must decide what should be expected of a "reasonably well-qualified" practitioner and whether or not you satisfied such expectations. Their sole basis for this decision must be testimony given by physicians called as expert witnesses. In theory, this allows the jury to judge the physician according to the standards of his or her own profession. In practice, it requires them to choose between the standard espoused by the physician's expert and the plaintiff's.

• Proximate cause. Finally, plaintiff's counsel must demonstrate that your negligence was the proximate cause of the injury. Your actions must be a cause of the plaintiff's injury. That is, any cause which, in the natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest case. Another way to look at proximate cause: In the mind's eye, at the moment in time the breach occurs, the injury was reasonably foreseeable.

The plaintiff's attorney must persuade the jury that your actions or failures were, indeed, one cause of the injury, even if not the sole cause or the most immediate one. The concept of proximate cause is nicely demonstrated in the following case.

Dr. Heavrin misread a lab slip and told Ms. Hensley that she had syphilis. Mr. Hensley was shocked at the test results and his wife's apparent infidelity. He struck his wife in the jaw, fracturing it in two places.

The Hensleys sued the physician for negligent diagnosis, resulting in the fractured jaw. The trial court said, that the husband's action in striking the jaw was an unforeseeable intervening cause of her injuries, and dismissed the case for lack of proximate causation.3

The Litigation Process

Injury breach, and proximate cause are the central issues throughout the litigation process. Under our legal system, that process has three major phases: the complaint; discovery; and the trial.

The complaint. If someone has initiated malpractice proceedings against you, the news will reach you through a summons or an attorney's lien.

The summons. The first of these is the most definitive and direct. The plaintiff's attorney prepares a complaint against you and files it with the clerk of the court. At this point, a lawsuit has come into being. You will be notified of it by means of a summons served either by a sheriff's officer or registered mail. It will order you to appear at a given court on a specific date to defend the charges against you.

Being served with a summons can be a shocking experience. Even more disturbing is the complaint itself. It will accuse you of multiple actions and omissions. Do not take these allegations literally. Since it is too early for plaintiff's counsel to determine the specifics he or she will try to prove against you, the attorney has made the compliant broad enough to cover all the possibilities; it is largely boilerplate, more form than substance.

From the date of the summons, your attorney will have a limited period of time-usually 20-30 days-to answer the allegations or move to strike the summons as legally insufficient.

Upon receipt of a summons or notice of suit against you, notify your insurance company immediately. The insurance company will take appropriate action through legal counsel. Lack of a proper response may result in forfeiture of your right to a defense. A default judgment can be entered against you, in which the plaintiff introduces evidence and the court, without hearing your defense, assesses damages against you. In this event, your insurance carrier will not provide insurance coverage because it's rights (primarily to prepare a defense) will have been prejudiced by the policyholder's inappropriate action or lack of action. Failure to notify your insurance company violates the terms of your professional liability insurance.

Notice of Attorney's Lien. Before filing suit, a plaintiff or his attorney may seek direct negotiations with your insurance company. In this event, you may be notified of a lien, stating that the attorney is making a claim against you. The effect of this document is to prevent a direct settlement with the plaintiff, bypassing the attorney and his contingent fee. While the notice is not a lawsuit, it does represent the intent to file one if settlement is not otherwise reached.

Notice of the attorney's lien will usually ask you to have your insurance carrier call the plaintiff's attorney. Contact your insurance company immediately. Don't ignore the notice. Even though the lien does not carry a statutory date by which you must respond, the plaintiff's counsel will expect to hear from your insurer within a reasonable period of time. If she does not, she is likely to file suit.

Pre-Discovery

Medical records.Begin immediately to assemble all available records pertinent to the plaintiff's treatment. These may include your notes, x-rays, and lab reports, and a full set of hospital records-charts, nurses' notes, discharge instructions, separate notes, etc. If any are missing, make arrangements for a thorough search. Do not request records from physicians who cared for the plaintiff before or after the period in question. If such records are needed, your attorney will obtain them.

Emergency physicians do not typically retain medical records in the ordinary course of business. However, following a bad patient outcome, the emergency physician may make a copy of records, make certain notations, and may have copies of lab reports and x-rays.

At some point, you will be asked to send these materials to the insurance company or your attorney. For your own reference, you should also make and retain copies of materials in your possession.

Under no circumstances should you alter your records in any way. Do not supplement, clarify, complete, or reconstruct them. Any attempt to change them probably will be discovered, compromising your credibility. In certain circumstances, it may be advantageous to make notes providing clarification of certain events. Do not prepare any notations regarding the case without consulting defense counsel.

It is important that you review all records immediately. You are not expected to remember details concerning your treatment of the plaintiff. In fact, your records will be considered more reliable than your recollection, and you will be encouraged to refer to them during your deposition and trial testimony. Even so, the events they cover will never be fresher in your mind than they are now, and it is in your interest to review them thoroughly as soon as possible. Independent recollection of the events strengthens deposition and trial testimony.

The Attorney. The insurance company, perhaps with your assistance, will choose an attorney with special expertise in defending professional liability lawsuits. He or she will be able to build the strongest possible case only with your help.

Remember, those on the plaintiff's side may not be after justice; they may not even be greatly concerned with the truth. Instead, their primary goal is recovery of alleged damages, and the more persuaded they are of your negligence, the more aggressively they are likely to pursue that goal.

The key to your defense will be good preparation that will require close cooperation with your attorney. She will rely on you to provide and interpret medical records in the case. She may also ask for help in locating relevant literature, identifying expert witnesses, and developing exhibits or visual aids.

Co-Defendants. The complaint against you may also list others as defendants. These can include your partners, consulting specialists, the hospital, pharmaceutical companies, manufacturers of health care equipment or, any individual, business entity, or institution that may have been involved in treating the plaintiff.

Settle or Defend? Early in the litigation process, you will have to face this crucial decision. If, after reviewing the facts of the case and the patient's injury, the defense team determines that there was no breach in a standard of care, and that the patient's condition is unrelated to the care provided, then the case should be vigorously defended. However, if there was an obvious breach in a standard of care, or if the care provided was questionable, then the defendant EP may want to discuss early settlement to limit defense costs and to avoid a jury verdict. Jury verdicts are often multiples of proposed settlements.

The insurance company's philosophy is important. Some companies believe that the best way to discourage unfounded malpractice suits is through vigorous, uncompromising defense. You may want to look for an insurer with an aggressive defense policy.

Discovery

Our legal system is designed to prevent surprises by permitting an attorney access to all pertinent witnesses and evidence-including those of his or her opposition. This occurs through the process of discovery, during which each side may request and examine the sources likely to be used by the other in preparing its case. In a malpractice suit, these will usually include:

medical records;

medical literature;

prospective witnesses.

While your attorney, like the plaintiffs, will be obliged to provide access to these sources, she is not required to reveal the strategic lines she intends to follow. In fact, your attorney will make every effort to protect her own strategy while gaining insight into the opposition's.

Interrogatories. Early in the discovery process, each attorney will receive interrogatories-written questions to which her opponent expects written replies. Some of these will be directed at the attorney and will concern procedural matters, while others will require response from people involved in the case, including potential witnesses, the plaintiff, and the defendant.

Through the interrogatories, you can expect that each attorney will ask to see copies of any medical records that the opposing attorney contemplates using as evidence. Each will request that the other identify any medical literature he or she may cite. And each will also ask the opponent for a list of potential witnesses, including those that may be called as medical experts.

In addition, your attorney may ask the plaintiff to describe the injury he or she alleges, and to detail her medical condition both beforehand and afterwards. The plaintiff may also be requested to indicate the types of damages being claimed and the dollar amount sought in compensation for each.

The plaintiff's interrogatories may include some standard form questions about your background and training. She may ask which records are in your possession and which were available to you during the period when the alleged malpractice occurred. And she will request information about the procedures you performed and the care you provided to the plaintiff.

In preparing your answers, you will work with your attorney. Your attorney will assist you in crafting a response that is consistent with the law, with her plans for your defense, and with your best interests. Both the law and sound principle require that you give accurate, forthright answers, and this is what you should do regardless of the consequences. While it is possible that a truthful answer will damage your case, a falsehood documented in the interrogatories and discovered later may destroy it.

If you are worried about revealing any information, tell her why and proceed as she advises. She cannot prepare to defend a weak point in your case if she does not know it exists. Everything that you say to your attorney is protected by the attorney-client privilege.

The interrogatories may be accusatory in tone; they may make assumptions that reflect negatively on you; and they may implicitly question your integrity. In some instances, all this may be intentional. Plaintiff's counsel may adopt an aggressive posture because she believes it will give her a tactical advantage. You can best counteract that by keeping your emotions under control and working with your attorney to prepare appropriate answers.

Depositions

Each attorney may seek to discover additional information through a face-to-face questioning of the other's prospective witnesses. The procedure for doing so is the deposition.

A deposition consists of pretrial testimony given under oath and governed by the rules of the court in which the case was filed-either state or federal. It is taken under oath and is usually made in the presence of a notary public or court reporter. The person answering the questions is called the deponent.

Scope of questioning. The questioning, by design, will usually be quite broad in scope, covering any subject counsel thinks may lead her to relevant information.

Who can give a deposition? Anyone with knowledge relevant to a case may be asked to give a deposition. In a malpractice case, these people will usually include physicians expected to appear as witnesses, other prospective witnesses, the plaintiff, and the defendant.

Types of depositions

Deposition testimony, although given under oath, may be introduced in court as evidence only under certain circumstances:

Evidentiary depositions. If there is a doubt about a witness's ability to appear in court (e.g., a life-threatening illness or out-of -state residence), he or she may be asked to give an evidentiary deposition. It will be taken with the intent that it be read verbatim into the trial record.

Discovery depositions. Most depositions are taken solely for discovery purposes. They may not be introduced in state courts unless: 1) the deponent makes an admission against her own interest; or 2) the trial testimony contradicts the deposition, in which case the latter can be used to impeach the former.

Preparing for a deposition. Now, for the first time, you will meet the plaintiff's attorney, and, possibly the plaintiff. Your deposition will represent a crucial moment in the litigation process, one whose importance may only be overshadowed by the trial itself. How you perform may have a powerful impact on the success of your defense.

When you give your deposition, you must assume that plaintiff's counsel will know a great deal about the medical issues involved in your case. In general, she will have studied the records, reviewed literature, consulted with medical experts, and developed lines of questioning she believes will be productive. Unless you are prepared, you may find yourself at a critical disadvantage.

Preparing for the Deposition

Consult your attorney.She will tell you what she expects of plaintiff's counsel and how you can get ready for it. Plaintiff's counsel may be an inexperienced malpractice attorney with no knowledge of medicine, or may be a practicing physician/attorney in your own specialty. Counsel will explain to you the date, time and place the deposition will be taken, and that the examination will be informal.

Study the patient's records. You will have reviewed these when the claim was filed. Go through them again and again until you are prepared for a detailed discussion of them all-hospital charts, lab reports, your own notes, and those of your colleagues. It is surprising how often a small detail in the records can have a large impact on the case. Ask your attorney which records to review. She may only want you prepared to testify to the facts that occurred during your emergency department visit, not subsequent care.

Refresh your memory. It is usually helpful if you have an independent recollection of the incident. Your testimony will be stronger if you can recall the specific patient and the facts surrounding the alleged negligent incident. Testimony from a medical record, without independent recollection, is less convincing, but often necessary. If it helps, sketch a diagram of the incident, or return to the scene of the incident. Your recollection of the facts of the case may significantly influence the outcome of the litigation.

Review the standard works of literature in your specialty. If the procedures you performed on the plaintiff vary significantly from the standard literature, be prepared to explain the reasoning behind the course you followed. Consult with your attorney before selecting works to review. She may have reason to steer you toward some and away from others. She may wish you to limit the scope of your reading. After all, plaintiff's counsel has the right to ask you which sources you've consulted, and by providing her with a lengthy list, you may be saving her the trouble of conducting her own literature search.

Attend other depositions. Make a point of attending the depositions conducted by your attorney-especially those with the plaintiff and her expert witnesses. Your presence will inhibit them from exaggerating and, perhaps, cause them to reassess their opinions. You will be amazed at what a plaintiff's expert will say. You may find them advocating a position, rather than promoting justice.

Prepare yourself mentally for the lines of questioning the plaintiff will follow. Figure this out before the deposition. You know far more than the plaintiff's attorney, in most cases. Understand that the plaintiff's attorney will be very familiar with the specific medical facts of your case, but that still does not approach your level of understanding. A good way to reduce your apprehension about the deposition is to know everything you may be asked and have answers prepared. If you study the case carefully enough, you will be able to figure out the obvious lines of questioning. As your deposition date draws near, your attorney will meet with you and help you gather your thoughts on the issues she expects to arise.

Deposition testimony. It is probable that you will give your deposition in the offices of plaintiff's counsel. Your attorney will accompany you and, if necessary, confer with you during the proceedings. Also present will be a court reporter who will record the questions and answers. Later, you will have the opportunity to review a transcript of your testimony and verify its accuracy. Take that opportunity.

The Trial

Trial by jury.In the abstract, it is something most of us accept as a keystone in democratic society. But when a trial is real and you are the defendant, then it can become something much different.

If you view your trial with apprehension, your worries are not entirely unjustified. For the defendant, a malpractice trial is not a pleasant experience. You will be confronted by an opponent whose sole reason for being there is to question your skill, deny your expertise, and attack your judgement.

Compounding all this may be the feeling that you, the defendant, are powerless-that in the courtroom you are on unfamiliar ground where your destiny is being decided by an impersonal process and twelve strangers who know little about medicine.

The courtroom is the province of lawyers and judges. It is governed by procedures as unfamiliar to you as medical procedures are to them. Through most of the proceedings you will seem little more than an observer, feeling elated at the "ups" and deflated at the "downs." And there will be both.

While you may often feel like a mere spectator at the contest, the fact is you are not. Nor are you as powerless as you may believe. Because even though you may have no control over the trial's pace and procedures, you will influence its outcome. That, don't forget, will be decided by the jury, and you-through both your conduct and your testimony-will exert a decisive impact on their disposition to find in your favor.

The Judge, the jury, and you. The judge is the referee. His function is to oversee the proceedings, making sure the law is applied impartially and ruling on the frequent disagreements that arise between opposing attorneys. Except on rare occasions, the judge is not the "trier of fact," he does not render the verdict. That duty falls to the jury, and from the moment they are selected, they should be the main focus of your attention. Throughout the trial you will find them watching you, seeking to build an impression of your character and honesty. They will take note of how you look and how you listen. They will attempt to interpret your expressions and gestures. And they'll pay close attention to how you react when others are testifying. Even outside the courtroom-in the halls, the cafeteria, even the parking lot-they will notice everything about you. The implication of all this is clear: When you come to court, be prepared to make their impression of you a positive one.

Your appearance. Dress for court. Wear a conservative business suit of blue, brown, or gray. Avoid showy jewelry and expensive watches. If you drive a luxury car, you may choose to leave it at home. The stereotype of the rich, status-conscious doctor may be unwarranted, but it exists nonetheless. Don't give the opposition an opportunity to apply it to you

Your conduct. Attend every moment of every session. Arrive before the jury, and never keep them waiting. Do not talk with anyone from the plaintiff's side. Friendly though they may seem, they do not have your welfare at heart. If they try to engage you in conversation, reply with a polite nod or a "good morning."

Do not be concerned if your attorney speaks with her counterpart during recess. Their informal communication is a normal part of the litigation process and may help the trial move more expeditiously.

While others testify, give them your complete attention. Don't let your mind wander. No matter how strongly you may feel about what you are hearing, do not let the jury see your reaction. Any show of approval or antagonism may be counter productive.

Pre-trial conferences. As your trial approaches, your attorney and the plaintiff's attorney will meet with the judge to discuss the procedures and ground rules to which they will adhere. The judge may also exert some pressure on both parties to settle before your court date. Your attorney and insurance carrier will keep you informed about these discussions.

Do not be upset if you see your attorney conferring with the plaintiff's counsel. Such discussions are a normal part of the litigation process.

As was mentioned earlier, a relatively small proportion of malpractice suits ever reach the courtroom. Even fewer are ultimately decided by the jury, since settlement during trial is not uncommon.

The Five Phases of the Trial

If, however, your trial proceeds to completion it will have five phases: 1) Jury Selection; 2) Opening Arguments; 3) Presentation of Evidence; 4) Closing Arguments; and 5) Jury Instructions and Verdict.

Jury selection. Your jury will be selected from the pool of people impanelled during the period in which your trial begins.

Each prospective juror will be questioned, by the judge and-if the judge so allows-by the attorneys. Their purpose is to assess the individual's attitudes about the issues to be raised during the trial. Each side may reject a certain number peremptorily, and each will seek to retain those she feels will give her case the most sympathetic hearing. If you wish to know your attorney's criteria for selecting jurors, discuss it with her beforehand.

Should you recognize a prospective juror or have objective reasons for feeling that one ought to be excluded, be sure to inform your attorney.

Opening arguments. Once a jury is selected, its first duty is to hear the opening arguments of each attorney. Plaintiff's counsel generally speaks first.

These arguments may last only a few minutes or they may take several hours. The attorney will outline what she believes to be true in the case, what she intends to prove, and what types of evidence she plans to introduce. If a case is highly technical, she may spend some time defining terms.

Don't be surprised if the opening arguments are more dramatic than any portion of the litigation process you may have viewed thus far. They represent each attorney's first opportunity to impress the jury, and each may appeal as much to emotion as to reason.

Try to control your emotions. That may be difficult. You will have spent many months anticipating this trial and preparing for it. You will have a great deal at stake, and the pressure upon you will be considerable. But despite the strong emotional reaction, it is imperative that you remain impassive in court.

The strength of your contribution to the defense will, in part, depend on your ability to keep your feelings under control and to view the procedures with as much detachment as you can. Each day you will meet with your attorney to evaluate what has occurred so far and to adjust your defense accordingly. And, before too long, you will be called to the stand. You will perform most effectively if you maintain a measure of objectivity, working to gain a clear insight into how the opposing strategies interact.

The evidence. When opening statements have concluded, presentation of the evidence begins. The plaintiff's case is heard first, with the plaintiff's counsel leading her witnesses through direct examination and your attorney cross-examining them. Under courtroom rules, all cross-examination must be confined to issues raised under direct examination.

The object of your attorney's cross-examination will be to weaken the testimony given by a witness. If she feels that she cannot accomplish this, or if she does not consider the testimony to have been strong in the first place, she may confine herself to only a few questions or ask none at all. It is wise to rely on her judgment in this and all other matters involving courtroom strategy.

The plaintiff's witnesses may include other health care professionals who treated her client. The plaintiff may appear, as may her employer and family members.

Also appearing for the plaintiff will be a physician called as an expert witness. Some defendants consider it an affront when a colleague testifies against them. But without experts on both sides, the trial could not proceed. As was pointed out earlier, the major issues at stake in your trial are injury, negligence, and proximate cause. The criteria for determining the extent of each are established not by the law but by physicians-the expert witnesses. Each will define what he or she believes to be the standard of care expected of a physician working in your specialty. Naturally, their definitions will disagree. It is up to the jury to decide which most probably should apply.

Oddly enough, one of the plaintiff's witnesses may be the person he or she is suing-you. It is not uncommon for a defendant to appear, not only on her own behalf, but also as an adverse witness for the opposition. As the treating physician, you know more about the care you rendered than can be revealed by the experts or the records. Plaintiff's counsel has the right to present your knowledge to the jury without being constrained by the rules of the direct examination. Thus, the court permits her to cross-examine you. When she is finished, your attorney will then have the right to ask clarifying questions.

Your trial testimony. Your appearance as an adverse witness for the plaintiff may be the most difficult challenge you'll face during the litigation process. It may also be the most critical. The verdict may depend on your performance under questioning that will, at best, be unfriendly. Treat it for what it is likely to be-a minefield. But remember, this is all an elaborate act, performed for the jury. Learn how to play it. Let your attorney know the best way to present the facts. Help her know how the jury can arrive at the truth of the matter.

Your attorney will help you prepare. Be ready to follow these guidelines:

Speak to the jury. The questions may come from counsel, but the people who must be convinced are those seated in the jury box. Address your answers to them. Speak as you would to a patient, assuming your classic role as educator. You may find the plaintiff's attorney using tactics that distract your eyes from the jury's. Even so, remind yourself to direct your answers towards them, not counsel.

Make your answers complete. This is not a deposition where you are advised to give a truthful answer but no more. At trial, you should seize every available opportunity to state your position and demonstrate your expertise. Always try to provide the jury with all the information you think they'll need to make an informed judgment.

If you are unable to make your answers complete, don't be upset. An answer that may be in your interests will not be in the plaintiff's, and counsel may cut you off in mid-sentence. Don't let it bother you. Let your attorney object to the interruptions if she feels they are improper. Otherwise, for the moment, accept the fact that plaintiff's counsel is trying to make her case, not yours. Your attorney will give you an opportunity to present your viewpoint at the appropriate time.

Don't let plaintiff's counsel put words in your mouth. She may try to do this with a leading question. She may summarize your notes and ask you to agree with her summary. She may lead you through a chain of hypothetical questions. Go along with her only if you are absolutely confident that you know where she is headed. Otherwise, proceed as you did during your deposition. Beware of leading questions. Avoid the hypothetical or general in favor of the actual and specific. If you wish, refer to the medical records before commenting on them.

Do not contradict your deposition. Plaintiff's counsel will know your deposition inside out. You should too. If your trial testimony contradicts it, she may try to introduce it into evidence for the purpose of impeaching what you have said on the stand. Even if she does not succeed, she may still cast doubt on your credibility. The simplest way to avoid these problems is to tell the truth, be prepared for the lines of questioning, and study your deposition transcript.

Do not lose control of your emotions. This could happen for a variety of reasons. Plaintiff's counsel may be repetitive in her questions. She may insist on "yes" or "no" responses. She may question you aggressively, badgering you and impugning your testimony with sarcasm. All these may be tactics designed to win points with the jury. If you become angry or lose your composure you will make these tactics a success. In the process, you will persuade the jury that you react poorly under stress-here and, by implication, in the ED.

If your attorney objects to a question, listen. Never answer a question or continue speaking over an objection lodged by your attorney. Your attorney has a purpose for making the objection. Listen carefully, and her reason should become clear to you. Additionally, until the judge rules on the objection, you do not know if an answer is called for.

Your Defense

It is in the presentation of your defense that all your preparation will pay off. Your lawyer will present a series of witnesses, including a defense expert. But the testimony that will carry the most weight will be yours.

Your attorney probably will not prepare it with you question by question. But she will review the areas she expects to cover. As the trial progresses, she will also assess the strengths of the plaintiff's case and help you direct your testimony towards weakening them. Here are some guidelines she may ask you to follow:

Speak to the jury. Unlike plaintiff's counsel, yours will encourage you to relate to the jurors as you do to patients-with professionalism and compassion. Support her efforts by facing the jury as you speak and putting your answers in terms you feel they will understand.

Follow your attorney's lead. Counsel will structure the individual questions and their sequence to give you the best possible opportunity to state your case. Listen carefully and let your answers move in the directions the questions suggest. Don't try to anticipate what is coming next, and don't speak to issues not raised by a questions.

No surprises! Your attorney is not looking for surprises. Don't "freelance" on the stand. Give answers consistent with what you have told her throughout trial preparation.

The Trial Concludes

When the defense has rested the trial moves into its final phases. First, both attorneys present closing arguments. Like the opening statements, these summarize the evidence, press the conclusions to be drawn from it, and urge the jury to return the desired verdict.

After closing arguments, the judge will give the jury a series of instructions to be followed in deciding the case. He will outline their responsibilities, define such concepts as "negligence" and "proximate cause," and present other information pertinent to their task. These instructions are not given extemporaneously, but read from standard forms, copies of which will be given to the jury for use during their deliberations.

The jury will then retire to discuss the case. After as little as an hour, or as much as several days, they will return with their verdict.

Conclusion

It is critical to study those clinical aspects of emergency practice that can limit your risk of exposure to liability. However, once the lawsuit begins, the emergency physicians level of preparation, and ability to communicate with the jury can significantly affect the outcome of the case. Learn how to work with your defense team to positively affect the outcome of your malpractice lawsuit.

Giving a Deposition: A Crash Course

Your attorney will help you prepare for the specifics of giving testimony. Meanwhile, here are some general guidelines to follow:

Give truthful answers-no less, but no more. As a physician, you are an educator. Your training and temperament predispose you to answer a question by examining it from all sides and offering as much information as you are able. A deposition calls for you to do precisely the opposite. It is an adversarial proceeding. You have been called there by plaintiff's counsel to provide information she fully intends to use against you. Don't give her any more help than you must. The law requires only that your answer be truthful-not exhaustive, nor even extensive. Confine yourself to responses that satisfy the law, even if that means answering a question with a simple "yes" or "no."

If a question is ambiguous, ask for clarification. You are trained to assess and interpret the intent behind a patient's question. You need not do the same for plaintiff's counsel. In fact, it can be dangerous to try. Be certain you understand every question clearly before you reply.

When in doubt, consult the record. You are not expected to remember all details of every patient's treatment. That is why you keep notes. These, along with the rest of the plaintiff's records, will be near at hand during your deposition. Do not rely on your memory. Stay in control. If there's something you don't recall, say so; if you need to refer to the records, do so.

Do not acknowledge a text as fully authoritative unless you are satisfied that it is. To win the case, plaintiff's counsel must demonstrate that you failed to meet an accepted standard of medical care, and he or she may use a well-known textual source as one of the bases upon which to establish that standard. In addition, she may ask you to endorse a text that she plans to use against you. No text is absolutely authoritative. None can anticipate every circumstance you can encounter in your practice. None is universally accepted, and none is totally up-to-date. Thus, do not offer an unqualified endorsement of material that may subsequently be used against you unless you accept that source as authoritative in all respects.

Avoid concurring with generalizations. Beware of questions that begin with a phrase such as: "Generally speaking, Doctor..." What's true in general may not apply to a given case. By going along with a line of questions based on generalities or hypothetical situations, you may find yourself disagreeing in theory with what you have done in fact. Throughout your deposition, do your best to stick to the matter at hand-the condition of a specific patient and the treatment you provided.

Beware of leading questions. Plaintiff's counsel may ask you questions that suggest a desired answer. Known as leading questions, they typically begin or end with a phrase such as, "Doctor, wouldn't you agree?" Again, your deposition is an adversarial proceeding. If the plaintiff's counsel is seeking a specific response on your part, it is more likely to serve her client's interests than yours. Do not agree with a leading question unless you feel comfortable with where it is leading. Be guided by its content and meaning, not its form.

Never lose control of your emotions. You may find plaintiff's counsel becoming repetitive in her questions. She may seem to badger or antagonize you. She may dispute your answers, challenging your principles and competence. While such behavior may simply be his norm, it may also be premeditated. He is testing you to see how you react under pressure. If you lose your composure, He will try to get you to do the same thing in court, suggesting to the jury that you behave just as intemperately under the stress of your emergency practice.

"I don't know," and "I don't remember" are great answers. Common sense dictates that you cannot remember every detail of the case, and you can't be familiar with the vast body of literature relating to the particular clinical entity. The answer is an unemotional, "I don't know."

Give no additional information. Do not volunteer additional information to a question. You are obligated to respond only to the specific question that has been asked. Don't make any attempt to be helpful, unless you and your attorney agree that the additional information helps your case. Don't relate any information you heard from other persons. Relate only what you know, what you heard, said or felt using your own senses. No guessing or speculation.

Favorable facts. Questions about favorable facts should be answered as definitely as possible.

Don't exaggerate the truth. The opposing attorney will usually discover the exaggeration and later use it to diminish your credibility. If the jury believes that you have not told the truth on one point, they may further believe that you are not telling the truth about other matters.

Avoid "uh-uh" and "uh-huh." You will be warned at the beginning of the deposition to say "yes" or "no." Besides the fact that the court reporter can't tell the difference between "uh-uh" and "uh-huh," the plaintiff's attorney will love giving you a hard time about not saying yes or no. This issue alone may cause great discomfort and set the tone for the deposition.

Memorize the record. Your knowledge of the record will bolster your case and help you recognize the plaintiff's attorneys mistakes and weakness.

Let your attorney make objections. She needs to make certain points on the record, and she may be trying to give you instructions in the guise of an objection.

Beware the "what if" or "assumed this happened" question. Understand that you can always say "I don't know," or "I don't want to guess or speculate." Thus, you can avoid this question. Stay in control. You can play with the question. You can change the facts again. Or if the hypothetical bolsters your position, answer it to the best of your ability.

Stop the deposition whenever you want to. Get water, go to the bathroom, make a phone call. You're in control.

Prepare for customary questions: Curriculum vitae; physical description of the emergency department, (e.g. layout and patient volume) at the time of the incident; discussion with anyone about this incident, or remarks you heard being made by others at or about the incident; who was present at the incident or has knowledge about it.

Your Advantage. Your deposition can be an unsettling experience. As you prepare for it, you are bound to be at least a little apprehensive. But no matter how worried you may be, you have one advantage that cannot be taken from you-you were there. You saw the patient and her condition at the time of treatment. You were, and remain, in the best position to judge the efficacy of your care. Others may second guess; they may have the benefit of hindsight. But, if you are persuaded that you treated the plaintiff to the best of your ability-that under the same circumstances you would do the same thing today-then you can expect to perform well in your deposition.

With solid preparation, a cool head, and an analytical frame of mind, you can make it the first step toward your ultimate goal as a physician defendant-the reaffirmation of your professional skills. n

Reasons to Take a Deposition

To preserve testimony in a case where it is anticipated that the witness will be unavailable at the time of trial because of illness, death, or other reasons.

A deposition preserves the testimony of a client, adverse party, or favorable witness and helps prevent faulty memory, unexplainable changes of heart, or the influence of the adversary.

It may be used to evaluate an adversary's overall case. It is not surprising to find the plaintiff's attorney unaware of critical facts in a case. Depositions help narrow the facts in controversy for trial. This may facilitate settlement, when appropriate.

It helps determine whether the adversary or an unfavorable witness will make a good or bad trial witness.

It helps measure the type of witness you will be when on the stand at trial.

It may lead to "admissions" from the opposing party.

It is used to obtain information useful for impeachment during cross-examination.

It helps acquire unknown facts. Because of the opportunity to follow up on avenues of responses, it allows a fairly broad opportunity to discover hidden information.

It commits the deponent, whether the defendant physician, the plaintiff, or the expert witness to a definite version of the facts.

It usually determines if all proper parties are joined in the litigation.

Who May Be Present At a Deposition

The deponent

The attorneys representing the parties

The court reporter who is recording the _deposition

Parties to the lawsuit

References

1. 42 USC 1395dd.

2. Blacks Law Dictionary, 6th ed. Washington, D.C.: West/Wadsworth; 1994

3. Hensley v. Heavrin, 282 S.E.2d 854 (1981).