The deposition of the defendant physician is critical to the successful defense of a medical malpractice or elder abuse claim. The plaintiff takes the physician’s deposition to evaluate two things: the medicine and the witness talking about the medicine. Like most activities, the keys to the deposition are preparation and execution. The first article in this series will address four areas of preparation that will greatly assist the defense.
Preparation
- Know the Chart Better Than the Plaintiff’s Attorney
Unless the opposing attorney is a former physician or nurse, the defendant physician’s years of medical training and experience are a huge advantage. Unfortunately, inadequate preparation can quickly level the playing field. Nothing is less impressive than a physician who is unfamiliar with the care he or she provided to the patient. A stunned “I operated on him???” is not an inspiring deposition answer. The physician should review the chart in the context of the allegations by the plaintiff and the overall treatment picture, understand the defense strategy, and know every seemingly trivial detail pertinent to the care at issue. By doing so, the physician will avoid surprises, and increase the likelihood of providing reasoned, logical, consistent answers during the deposition.
- Capitalize on Your Attorney’s Efforts
Information provided by the physician’s attorney is privileged and is not discoverable. Throughout the litigation, the defense attorneys should be providing written evaluations of the plaintiff’s factual and legal contentions, along with summaries of the patient’s medical records from all relevant health care providers. In addition, the summary of the defense expert ‘s opinions will contain independent observations on the strengths and weaknesses of the case. All these summaries should be reviewed in preparation for the deposition and then potential pitfalls can be ironed out at the pre-deposition meeting. When anticipated properly, difficult lines of questioning can be addressed in advance.
- Dress the Part
Many depositions are videotaped for use as potential impeachment evidence at trial. Independent of that issue, one of the primary objectives of the deposition is to convince the opposition the physician will be well received by a jury. For those reasons, it is very important to make a professional appearance. Surgical scrubs, poor grooming, ill-fitting clothes, visible tattoos, and bizarre ties are not the image the physician wants to project.
- Take the Day Off
In normal circumstances, the deposition can be arranged at the physician’s convenience. Although most depositions do not last all day, it is easier to focus on the task at hand if the physician does not have patients waiting at the office. Sacrificing one day to give undivided attention to the deposition can help obtain a dismissal and avoid wasting two to three weeks sitting at the courthouse during trial. In addition, setting aside the entire day will generally prevent the plaintiff from bringing the physician back to complete the deposition.
This article appeared in the March 2007 issue of MD News Magazine.
David P. Burke is a shareholder at Neil Dymott Hudson and concentrates his practice on the defense of healthcare professionals and general civil litigation defense. Mr. Burke may be reached at (619) 238-1712.
