Coping with Depositions

Few things in a doctor’s professional life generate more stress and disruption than an allegation of medical malpractice.

The litigation process and the uncertainty it creates may cause a doctor to experience a multitude of stress-related symptoms—including anger, anxiety, depression, or physical illness. The first step in alleviating the uncertainty is to outline the litigation process and describe the doctor’s role during each step.

If you are ever the subject of a claim, our defense of your livelihood and reputation will be fierce and uncompromising, and we will be with you throughout the process.

Legal Procedures

Once you notify us of a claim, our claims specialist will contact you to discuss the case by the end of the business day following the claim assignment. Every claim allegation is serious, and we take our commitment to defend you very seriously, right from the beginning. Notifying The Doctors Company of a claim and discussing the case with your claims specialist are crucial first steps.

At this initial stage it is often too early to make a determination of the complexity of a case. Our experience shows that effective claims handling—like good diagnostic work—requires a thorough workup. Your cooperation is essential to a successful defense.

Throughout the entire legal process, it is critically important that you discuss the case only with your claims specialist or your defense attorney. Although this instruction may seem arbitrary and unreasonably restrictive, there are good reasons to control the information. If you discuss your case with anyone other than your claims specialist or defense attorney, you may inadvertently involve that person as a witness and jeopardize your defense.

Request for Copies of Your Records

The earliest indication of a lawsuit may be a request for medical records from a plaintiff’s attorney or the patient. Although a patient has a legal right to see his or her medical record, a signed authorization is required to release a copy of it. The Doctors Company does not recommend that you refuse a request for medical records except in special circumstances, such as releasing records to a patient that pertain to the patient’s mental illness. If you have questions regarding whether records should be released, contact your patient safety risk manager.

A request for medical records is not necessarily an indication of an imminent malpractice action. It may simply be part of an attorney’s investigation of an accident or industrial compensation claim. However, notify us immediately if you suspect that a request is related to a potential medical malpractice action.

Notice of a Claim

A plaintiff’s decision to pursue a claim may generate a notice of intent to sue. The notice may simply be a letter from the plaintiff’s attorney. It may be triggered by statutory requirements, such as California’s 90-day notice of intent to sue. A notice from a screening panel may also be the first indication you receive. Contact us immediately if you receive any notice of a possible claim or lawsuit.

The Doctors Company’s policy requires that all notifications of potential or actual claims be communicated to us in writing. Visit www.thedoctors.com/claims to locate your Regional Claims Office or to find a First Report of New Incident or Claim form. For more information or questions on reporting a claim or an incident, read our article “Notification of an Incident or a Claim.”

Summons and Complaint

If you receive a summons and complaint (a lawsuit), inform your Regional Claims Office immediately. This type of legal document requires a formal response within a prescribed time limit, regardless of your belief in the merit of the case. Failure to respond appropriately may jeopardize your defense or result in a default judgment against you.

After you notify us, a highly qualified defense attorney specializing in medical malpractice defense will be assigned to your case. He or she will contact you to discuss the allegations and to provide information on the next steps. Your attorney will be responsible for filing a response to the summons and complaint.

Discovery

During discovery, plaintiff and defense attorneys review all records and documents related to a case to fully evaluate the claim. Interrogatories and depositions are two important parts of the discovery process.

Interrogatories

Interrogatories are designed to further develop the facts or the legal and medical foundation of a case. The plaintiff’s attorney will send you written questions. Your responses are legally admissible in court, so it is imperative that you review them with your defense attorney. Interrogatories are often numerous and repetitious—and they can be intensely irritating. The same question will often be asked in a number of ways to determine the consistency of your responses. Take every question seriously. Above all, refrain from angry or flippant responses.

Deposition Procedure

Although a deposition usually takes place in the informal setting of an attorney’s office or in your own office, do not think that it is an insignificant event. On the contrary, testimony obtained in a deposition during the discovery phase frequently proves to be the single most important event of the pretrial process. It is crucial to the outcome of a case.

A deposition consists of testimony taken from a witness or party under oath that is transcribed by a court reporter. All parties to a lawsuit receive formal, written notice of each deposition so that you and your attorney can attend, if you so choose.

As the defendant, your deposition not only serves as an investigative tool for the plaintiff’s attorney, but it also provides a vital opportunity for your attorney to evaluate you in advance of the trial. This assessment has a major influence on the attorney’s perceptions of your prospects for prevailing at trial and on the evaluation of the case for settlement. You can help your case by being well prepared about the facts of the patient’s care, conveying an air of knowledge and humility, and responding to questions in a direct and confident manner.

Deposition Preparation

You may be required to give testimony via deposition. Whatever you say to another person and whatever that person says to you concerning an incident that becomes the subject of a lawsuit can later become a subject of inquiry during your deposition. You may also be questioned about any medical literature research you performed in advance of your deposition or in preparation for testifying. Only your confidential discussions and written communications with your attorney or claims specialist may prove to be privileged and not subject to later discovery by opposing counsel.

Ongoing communication with your defense attorney is essential while the lawsuit is pending. Your attorney will keep you updated on information that he or she learns about the allegations made against you.

Your attorney may decide to obtain the patient’s deposition testimony in advance of yours and to have you review that testimony in preparation for your deposition. Your defense attorney may also suggest that you review certain medical records obtained through the discovery process so you can better acquaint yourself with the care the patient received from other healthcare professionals.

Your attorney may also ask you to share your medical expertise to further his or her own understanding of the case. In advance of your deposition, your attorney will schedule a conference to review questions the plaintiff’s attorney might ask. Your attorney will also advise you of the best approach to use in answering the questions.

Deposition Testimony

At the predeposition conference, your attorney will inform you about examination techniques to expect and the approaches available to you in formulating appropriate responses. Your responses should be brief, concise, and delivered in a calm and thoughtful manner. Avoid guessing when you are uncertain of the answer. It is preferable to respond, “I do not know” or “I do not recall.” Above all, your testimony must be truthful. It is not, however, your obligation to volunteer information during the deposition. Instead, it is preferable to not educate opposing counsel. Doing so may unnecessarily prolong the deposition process.

Do not misstate facts in an effort to enhance your position. Be aware that, unless the plaintiff or defense attorney notes that statements are to be off the record, all comments made during the deposition will appear in the record. During your deposition, the plaintiff’s attorney will try to elicit answers that are most advantageous to the plaintiff’s position. Respond only to the question asked, not to the manner in which it is asked. Your function, with your attorney’s guidance, is to provide truthful answers phrased in a way that least benefits the plaintiff’s position and most enhances your own.

During your deposition, your attorney may perceive that a question is ambiguous or subject to a legal objection. Allow your attorney to state his or her objection, and take the objection into consideration when formulating your answer. The objection may alert you to an ambiguity or hidden meaning that is not otherwise apparent. Such objections frequently serve to avert answers that could be given by the witness without a full understanding of the question. Your attorney can instruct you to refrain from answering a question he or she believes is an effort to elicit information that is not legally discoverable. Follow your attorney’s instruction in this regard.

Deposition Review

You will be asked to review your deposition transcript and provide your attorney with changes or corrections you feel are necessary to ensure accuracy. It is important to avoid inadvertent mistakes in your testimony, and no corrections should be made without first obtaining your attorney’s approval. Your deposition can be an important learning experience for you and a dress rehearsal for the potential trial.

Coping with the Stress of a Malpractice Claim

In addition to providing a superior legal defense, we host regional Litigation Education Retreats to support members who are facing litigation. The one-day seminars give each participating member the skills necessary to prepare a winning case and help alleviate the stress and anxiety that accompany a malpractice claim.

Contact your claims specialist for more information about Litigation Education Retreats, or visit www.thedoctors.com/ler.

With You Every Step of the Way

If a claim is ever made against you, our claims experts will be with you every step of the way. We’re here to help 24/7. Call our 24-hour hotline at (800) 421-2368 to speak with a claims specialist or a patient safety risk manager. Our medical director, David B. Troxel, MD, is also available to provide support and assistance and to make certain that your questions and concerns are addressed. Contact Dr. Troxel at (800) 421-2368, extension 1269, or at dtroxel@thedoctors.com.

 


Additional Resource
Sara C. Charles, MD, and Paul R. Frisch, JD. Adverse Events, Stress, and Litigation: A Physician’s Guide. New York (NY): Oxford University Press; 2005.

 

By Susan Shepard, MSN, RN, Director, Patient Safety Education, and Richard Cahill, JD, Vice President and Associate General Counsel, The Doctors Company.

 


The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

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