Preparation can make experience nontraumatic
Subpoenas requiring testimony in a deposition, administrative court hearing, or trial don’t always come as a surprise, but they can leave you feeling unsure and nervous when your area of expertise is a clinic, not a courtroom. Being nervous is natural, but legal experts say testifying can be less traumatic if the witness is prepared.
"The key is adequate preparation," says James J. Mangraviti Jr., JD, a trial attorney and vice president of SEAK Inc., a Falmouth, MA-based training and education firm that works with witnesses and medical providers.
Occupational health providers can find themselves involved in a legal proceeding even if all they’ve done was make a note in a patient’s record. Workers’ compensation disputes, lawsuits over work-related injuries or illnesses, or negligence suits against an employee or company can entangle lots of peripheral witnesses, Mangraviti points out. So being subpoenaed or summoned to a trial or deposition is not an indication that that particular witness is in trouble.
"An occupational health nurse doesn’t need to be scared, but they often are because they’re not knowledgeable about what to do to prepare, and what their rights are once they are testifying or giving depositions," he says.
When the summons comes
Although preparation is the most basic tool for the subpoenaed nurse or physician, most never receive any kind of instruction on exactly how to prepare. And if the clinician hasn’t done a good job documenting in the medical record — or even worse, if the medical record can’t be located, his or her stress is compounded.
Additional sources of stress might be concern for co-workers who might be the subject of the litigation, or fear that the nurse’s own testimony might be detrimental to the employer (if the lawsuit targets the employer) and, therefore, to his or her continued employment.
Experts advise that if an occupational health professional is subpoenaed as part of a litigation involving his or her employer or a client employer, the first step should be to notify the employer’s legal counsel.
An exception would be if the nurse or physician is called on to serve as an expert witness — someone with knowledge and experience enough that he or she qualifies under the court’s guidelines to serve as an expert on some aspect of the legal proceedings. This is a fee-paid service; you are paid to present expert information to help the jury, hearing officer, or judge make a determination.
But whether a witness is called as an expert or as an involved party to a legal action, the guiding thought should be to tell the truth.
In its guidelines for occupational and environmental medicine physicians who are called to testify as experts, the American College of Occupational and Environmental Medicine (ACOEM) offers some advice that any health professional might consider if called upon to testify:
"The physician expert must demonstrate adherence to the strictest of personal and professional ethics. Truthfulness is essential, and misrepresentation of a personal theory or opinion as scientific doctrine may be harmful to individual parties, the profession, and the public." (From ACOEM Consensus Opinion Statements — Ethical Guidelines for Occupational and Environmental Medicine Expert Witnesses, available at www.acoem.org/guidelines/article.asp?ID=31.)
"There are two types of witnesses," explains Mangraviti. "There’s the expert witnesses, who put themselves out there as witnesses and so expect to be called to testify, and then there’s the treating [physician or nurse] who get roped into testifying."
Independent medical examiners are particularly subject to being called as witnesses if they have reviewed an injury case, and "going to court is part and parcel of the job." The average occupational health nurse might be subpoenaed to testify about a worker’s injury or as keeper of the on-site medical records.
No matter how good a medical profession is the job or how well he or she knows a patient’s case file forward and backward, if he or she is not a good listener and communicator, then the value of that person as a witness is seriously eroded. "One thing I try to stress is for that person to listen to the question that is asked, and listen to it completely before answering, and then to answer the question that was asked — not the question you expect to be ask, or the question you think should be asked," Mangraviti says.
Alan Clark, MD, FACEP, an emergency physician and author, recommends that once the question is answered, stop talking. "Once the deponent makes a complete and short answer, it is critical to remain quiet even if the attorney across the table leans forward as if to say, . . . And?’" he says.
But above all, experts urge, tell the truth. "The single most important piece of advice for the witness is to tell the truth, simply and directly," Mangraviti advises in his seminars for potential witnesses. Witnesses who tell less than the truth or who appear evasive, for whatever reason, are usually exposed and end up being discredited.
In advising institutional nurses on testifying or giving depositions, Mangraviti offers the following suggestions:
Do: Tell the truth; answer only what you are asked; pause before answering; actively listen to the entire question without interruption; act naturally; avoid slang; know your role in the case; read any documents before you testify about them; dress conservatively; say you don’t know if you don’t know; say you don’t remember if you don’t remember; stay within your area of expertise; and take breaks when needed.
Don’t: Argue with counsel; elaborate, estimate, ramble, exaggerate or guess; interrupt the question; lose your temper; speculate; joke; leave out facts, or purposely forget important information; eat, chew gum, drink, or chew on a pen during a deposition.
Don’t change patient records
Trying to repair a poorly kept patient record is another mistake to avoid, Mangraviti advises. Witnesses who attempt to hide damaging documents and notes by removing them from their file risk sanctions if caught. To do so "is a serious logical and strategic mistake," he says. "Any attempt by a witness to sanitize his or her file is improper. Such an attempt will frequently make the witness look bad in the eyes of the jury or fact finder," he advises. "A single act of removal of documents from a file can completely destroy the credibility of an expert witness."
"Health care providers are experts at explaining things," says Clark. "That is appropriate when discussing medical care with a patient or family, but in a deposition, too much information can quickly become a liability. The plaintiff’s counsel will ignore any explanation that the defendant uses to try to convince the counsel how wrong he or she is to bring forward a particular lawsuit. The opposition will soak up every word of the deponent in hopes of being able to mold, remanufacture, and feed those words back to the jury at a later time."
For more information, contact:
- Alan Clark, MD, FACEP, Section Chair/Dept. of Emergency and Trauma Services, St. John’s Emergency and Trauma Center, Springfield, MO. E-mail: firstname.lastname@example.org.
- James J. Mangraviti, Jr., JD, Vice President, SEAK Inc., 316 Gifford St., Falmouth, MA 02540. Phone: (508) 548-7023.