Natural History of a Lawsuit

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The Incident

The Cast

The Natural History of a Lawsuit

You are involved in care of a patient who has a bad result - especially an unexpected bad result.

You receive a letter from a lawyer or Summons & complaint

The Parties will exchange written Discovery

Your deposition will be taken by the other side, under oath before a Court reporter.

Trial

Post trial motions and appeals.

A note about timing and emotions.

Legalities

Your deposition will be taken by the other side, under oath before a Court reporter.

Instructions To Medical
Witness Before a Deposition

1. TELL THE TRUTH.

2. Listen carefully to the questions, and answer the question asked.

3. Don't try to anticipate the next question or line of questions. Rather stick to what is in the record and what you remember. This is not your chance to tell your story. It is Plaintiff's attorney's chance to get educated and to put you on the record. Your attorney is unlikely to ask questions. Your attorney need not help plaintiffs to develop their case.

4. You can take a break and consult at any time.

5. Stay within your expertise. If you would act in your profession on basis of your own knowledge then you are probably in no trouble. If you would consult, then qualify your answer at least.

6. If honest, "I don't know" or "I would have to think about it." are perfectly good answers and are probably under-utilized. Do not dodge the truth with these answers though. Do not waver or "I guess" , or " I hope" on favorable material.

7. Read the chart prior to the deposition , particularly your entries. Then read it again as you are testifying. If you are asked what happened you can use any of the following sources:
a. What does the chart say ;
b. What do you remember ;
c. What are your habits and practices.
Use recall, the chart and your practices in testifying.

8. It is also OK to answer questions with "I would have to look it up." Anticipate follow up if you use this answer. Plaintiff's attorney will ask where you will look and then attorney will look to see if there is something which can be used against you. Regarding literature, watch out. If you identify literature as authoritative or even useful, plaintiff's attorney may be able to read from it to the jury. Especially watch out for texts. Usually a text is out of date or obviously wrong on some subjects on the day it is printed. Often texts can be as much as 3 years behind because of publication schedules. You automatically filter out superseded, or out of date material. If you recognize a text as an authority, there will need to be some explanation to the jury, who may have some difficulty with the proposition that the text was not current when printed. A standard work is a standard and you should tell the truth. But take care not to stretch the concept of authoritative work beyond work which you are actually familiar with and agree is a standard work in the field.

9. Defend yourself. You can't let counsel push you around. But don't argue. You know medicine. The plaintiff's attorney knows argument. Stay pleasant and responsive. Do not argue but stick up for yourself.

10. Standard of Care. The standard of care is important in evaluating your own care as well as that of other professionals at your clinic.
a. The standard of care is not that level of care which would have avoided injury. The law does not judge professional care looking backwards. Be careful of this. A wrong decision which results in avoidable harm may have been a good decision, or a defensible exercise of judgment when it was made, with the knowledge the professional had at that time. By the time you are looking back at it you already know how it came out. This can be a trap even when you are looking at your own care, much less someone else's care. Watch out.
b. The standard of care is not anyone's idea of the right way to practice. People are and have been trained at different times and in different places. Often differences are also created by choices made in light of experience. All of us know that some schools of thought are more conservative and some more aggressive. Any particular professional's idea of the right way to do things is not (necessarily) the standard of care. This is a difficult concept. Be careful.
c. The standard of care is reasonable care by a professional in the same specialty and in same circumstances. (1) If the approach is in question, the inquiry is: What is reasonably well accepted by the profession in these circumstances? Several different approaches may be well within the standard. (2) If knowledge is in question then the inquiry is not whether the information is known or available. All of us fall short on that standard. Rather, the inquiry is whether the knowledge is of a kind and character that it would necessarily be known by an ordinary, careful practitioner. Be especially careful when you have had some experience with something unusual. Everyone does not have your experience.
d. In a proper case, the plaintiff may try to raise the issue of informed consent. A practitioner must disclose risks of death or serious bodily harm of significant probability, that the practitioner should have or did know about. The practitioner must disclose those risks that a skilled practitioner would disclose. It is also necessary for the plaintiff to prove that the undisclosed risk materialized in harm and that a reasonable person in the position of plaintiff would have declined the procedure if the risks had been explained.

11. Cause. The standard for giving testimony about cause is "more probable than not." Such testimony is to be based on science, not speculation. Stay in your expertise and within your knowledge.

12. Trick questions are unlikely but incoherent questions or confusing questions are very likely. You need not answer such questions. Make the attorney rephrase or clarify the question. There are also assumptions in questions. Be careful of assumptions. (One obvious area is in area of cause. Questions sometimes assume earlier or more aggressive treatment would, not could have made a difference.) If you can't yourself validate an assumption made by counsel, challenge it or at least identify it in your answer.

13. Material reviewed in anticipation of testimony may well be open to review. Don't review the literature to get ready to testify, though you may have already reviewed it in order to help your attorney evaluate the claim. Your review of material to get ready to testify over the several days prior to the deposition should be limited to the medical records and material that you and your counsel agree you should review to get ready to testify. If in doubt, ask your attorney. Also, any material (such as your notes) which you use to testify can be examined. Bring medical records, if anything to the deposition. Do not bring any letters to or from your insurance company or your lawyer or any other material to the deposition unless you talk about the material in advance with counsel or you are asked by your counsel to bring it.

14. Were you concerned ?... Did you consider?... Sometimes questions such as these can be difficult to answer yes or no. A physician who was not concerned about the subject might be thought to be callous or careless. Yet an admission of concern might leave an inference that some action was required. Sometimes the only satisfactory answer to such a question, if truthful, is something along the lines of: "Yes, of course anyone in a case like this has to be concerned about that possibility, but that is not what I thought was going on here."

15. If one of your colleagues has knowledge about your case, or if you are inclined to talk with one of your partners, you should be aware that you will be asked who you talked to about the case and what was said. You may want to talk with your counsel before talking with your colleague. It may be possible to structure a protected communication on the subject using the attorney client privilege.

16. Talk with your attorney before your deposition. Get advice. Take your attorney's advice.

17. Your attitude is important; often you need some projection of care for the patient who has had a tragedy; coupled with indignant denial of wrongdoing. Watch out for your anger. If a jury senses that you no longer care about the patient your troubles have worsened. Similarly, watch out for your guilt. It is often true that a different approach might have given a different outcome. You need to ask yourself whether the bad result was your fault because of some inattention or bad act. If not, defend yourself.