Preparation of Physician for Deposition and/or Trial
By Robert T. Lynch, Esquire
1. KNOW THE NATURE AND PURPOSE OF A DEPOSITION
Deposition is used for four purposes:
A. To gather facts about the incident at issue;
B. To pin the defendant/physician to a position with the hopes he will change his testimony at trial
and be impeached (discredited);
C. A deposition gives the cross-examiner an opportunity to evaluate how good a witness the defendant/physician makes;
D. To intimidate the defendant/physician so as to encourage resolution of the case.
2. THE DOCTOR AND ATTORNEY MUST KNOW THE STRENGTHS AND WEAKNESSES OF THE CASE
The defendant/doctor and his attorney must review the medical facts, and be prepared to explain what was done
to or for the patient which the plaintiff claims should not have been done or should have been done in a different
manner. It is imperative that the attorney meet with his consultants prior to his deposition meeting with his physician, after his initial meeting with his physician. This must be done so that the attorney can be well versed in the
issues of the case and so that he can prepare the doctor for questions that might be asked.
3. DOCUMENT PRODUCTION
A defendant/witness should only produce those documents that are properly noticed. The defense attorney should
go through all of the documents in the physician's file and make sure that those documents correspond to a Notice to Produce and make sure that any privileged materials, etc., are removed from the file. Extraneous material
should not fall into the hands of the opponent attorney; it would only enrich his basis for cross-examination. This
particularly goes for materials obtained by the physician in preparation for the defense of the case, such as articles, etc. Objections may be required in writing served before the deposition or waived.
4. DON'T LIE OR EXAGGERATE
Lying under oath is a crime. Perjury, a fabrication or misrepresentation, even on a minor matter, can destroy all of
the witness' testimony. A tendency to try to "enhance" the record must be avoided.
5. CADENCE IN RESPONDING TO QUESTIONS
While this recommendation is more for trial, it is something that the defendant/physician witness should practice
even at deposition. Clients are advised to pause between the examiner's question and their response to the question. The advice is usually to take a breath, and even to say the question over in your mind, and then respond to
the question. This allows the attorney an opportunity to object, gives the witness a chance to think about his response, and takes away the risk of not understanding a question before answering. It also breaks up the plaintiff's
attorney's cadence, where a plaintiff's attorney will try to get a witness into a cadence of responding "yes," "yes,"
"yes," to a series of questions, until they finally slip a "yes" to what should be a "no" question.
6. TAG LINES ARE UNNECESSARY AND HARMFUL
Nothing sounds worse than a doctor/witness under oath saying "well, to be wholly truthful..." or "honestly". The
witness should be reminded that all of his testimony is under oath, and not just that particular sentence or that
particular answer. It is a bad habit that some people have and they should be cautioned against it.
7. HOW TO RESPOND TO A QUESTION
Do not answer a question that is unintelligible or that you do not fully understand. Ask the questioner to rephrase
the question. We generally advise witnesses never to volunteer information. However, at the same time, the witnesses should be advised to try to present a full and complete response and not to be evasive. The best responses at depositions are "yes," no," "I don't know," and "I don't remember at this time." At trial, a defendant/physician
should be encouraged to explain a response which needs an explanation, but not to volunteer extraneous information or to ramble. The defendant/physician at trial, particularly, should be encouraged not to try to win the case
on the cross-examination by the other side. He should have confidence in his lawyer and understand that his lawyer will ultimately bring out the information he wants to put before the jury.
8. DON'T GET FRIENDLY WITH YOUR OPPONENT
A defendant/physician should be conditioned that the plaintiff's attorney, though usually friendly, is not the defendant's friend. Therefore, avoid temptation to chat with the opposing attorney, or to voluntarily be helpful. Joking
rarely comes across well in a deposition transcript. On the other hand, nobody likes rudeness, including juries, and
therefore, a physician/defendant should never be rude to anyone. A caveat here, however, is that the physician
should be encouraged to make a favorable impression as a witness. Many physicians have a tendency to be angry
and upset with the mere fact of having been sued, and they tend to show an angry, upset appearance at deposition. This can only be harmful to the witness and encouraging to the plaintiff's attorney.
9. EMBARRASSING AREAS
A defendant/physician should always tell his counsel of embarrassing areas, such as graduating in the bottom
half of his medical school class, flunking the National Boards, prior medical malpractice lawsuits resulting in significant judgments, accusations of a crime, suspensions of a license to practice medicine and a loss of privileges at
major hospitals. The attorney can then help on how to minimize the hurt.
10. PHYSICIAN SHOULD REVIEW EVERY ARTICLE THAT HE HAS AUTHORED
Nothing is more embarrassing than to be impeached by one's own writings. However, this review should be done
prior to the trial. I do not think that a physician should review each and every article prior to his deposition.
11. STANDARD OF PRACTICE
A defendant/physician must never admit that he has violated the standard of practice, assuming that is the defendant's belief.
12. TWO SCHOOLS OF THOUGHT
While the physician should be aware of alternate schools of thought, he should not suggest to the plaintiff's attorney that his is a minority of school of thought or minority point of view. He should just be aware of the different
methods of treatment.
13. RECOGNIZE NO TESTS, DOCUMENTS OR ARTICLES, OR PHYSICIANS AS AUTHORITATIVE IF POSSIBLE
Documents, texts, or hearsay statements, in many jurisdictions come into evidence once recognized as authority
by the witness, if the witness acknowledges having read, referred to, considered, or relied upon the writings, or
comments by the authority. However, California law now allows impeachment by authoritative journals, if any expert recognizes them as authoritative.
14. "WHY" QUESTIONS
Most skilled examiners don't ask "why" questions at trial, but those who do can put undue pressure on a defendant witness. A doctor should handle the "why" questions by explaining that which was done was within his clinical
judgment. The judgment was based on doctor's education, training and experience.
15. INFORMED CONSENT
A doctor should testify, if true, that he explained the treatment, risks, alternatives and probable success or failure
of the procedure he performed. Additionally, a witness/physician should testify that the patient was aware that
anything could happen from minor complications to death. It is important to go over the informed consent at
length with the doctor prior to the deposition so that the doctor can testify to the actual things that he said in the
particular case. Remember, even if a doctor does not remember particular things that were said, he can testify
that it is his opinion that he said those things, since that is his normal practice.
16. DON'T GUESS OR SPECULATE
The law does not require that one guess or speculate. A physician may guess wrong and adversely color all of his
testimony.
17. OPINIONS
A defendant/physician should stick with his area of expertise. It seems that physicians, generally, have a tendency
to want to be an expert in all areas. The physician should be encouraged that he does not have an opinion or is
not an expert in a particular area outside his field. It is not and should not be considered an embarrassment. Rather, it emphasizes the areas in which the physician is an expert.
18. HYPOTHETICAL QUESTIONS
Hypothetical questions are not hypothetical. Make sure the defendant/physician has sufficient facts upon which to
base a response. If the facts posed are incorrect and do not comport with the facts of the case, the physician
should state that he is answering hypothetically, and does not believe that the facts are those in the case at issue.
19. DON'T HELP THE EXAMINING ATTORNEY WITH HIS QUESTIONS
Let the examiner look stupid, if he is unprepared, or lacks sufficient knowledge to frame a medical question. The
doctor should overcome any urge to appear helpful.
20. NO BOOZE BEFORE OR DURING DEPOSITIONS AND TRIAL
A physician tends to volunteer unnecessarily when under the influence. Jurors who smell alcohol on the breath of
a physician are more likely to find against that physician.
21. RECORDS
A PHYSICIAN SHOULD NEVER ALTER HIS RECORDS. A physician should be familiar with his records and be able to
read what he has written. The witness should testify that one does not write down everything. A physician treats
patients and not records. The lack of a recording does not necessarily mean that a certain procedure was not performed. The physician can testify to his custom and practice of performing the unrecorded procedure.
22. DRAWINGS
A physician should not draw at a deposition. However, in California, a physician may be required to draw at deposition. A physician should be prepared to draw at trial.
23. POSITIVE MENTAL ATTITUDE
If a physician believes there was no malpractice, he should not be intimidated into a contrary opinion for the purpose of settlement. A witness does best, under oath, when he feels good about himself.
24. LISTEN TO YOUR ATTORNEY
A physician/witness should be advised that if the attorney makes an objection during the deposition, he is doing it
for a reason. He may want to slow the physician down, or he may object to suggest flaws in the question that may
help the physician in responding to the question. A physician should be encouraged and informed that he should
listen to his attorney's objections or interruptions during the deposition and stop responding once his attorney
starts talking. This gives him an opportunity to digest what his attorney says before responding to the question.
25. PLACE OF PREPARATION
A physician should be encouraged to go to his attorney's office for the preparation session, to get used to answering questions in unfamiliar surroundings.
26. PHYSICAL APPEARANCE
The defendant/physician should dress for the deposition just as he would to appear in Court.