Depositions: What to Expect When Defending Your Actions in a Medical Malpractice Lawsuit Protection Status
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Part 2 in a series discussing the process of litigation in patient care lawsuits

For Part 1, Click Here

by Karen Zulkowski DNS, RN, CWS

Being involved in a lawsuit is never fun. However, if your facility is sued because a patient developed a pressure ulcer, you may have to testify. Pressure ulcers are the second most common reason for medical lawsuits. The facility and physicians are usually the ones targeted for monetary damages, but everyone that has taken care of the patient, the family that brought the lawsuit, and experts hired by both sides will have to be deposed.

Remember lawsuits take time, and while there is a time limit for bringing the suit, the rest can drag on. It may be two to three years or later before you do your deposition. Most staff don’t remember the patient, and will have to rely on what they have written down. Some staff may have changed facilities or positions. The expert also relies on the documentation and has never met the patient, so clear notes are critical to defending your actions. The adage “If it’s not documented, it wasn’t done” certainly pertains to the care you give your patients in a lawsuit.

A deposition is a legal proceeding. You are under oath, and what you say affects if the lawsuit goes forward, is dropped, or settles before trial. There is little difference between testimony at a deposition and testimony in the courtroom, except there is no judge presiding. Rulings over inadmissible matters will be made by the judge at the time of the trial, not during the taking of the deposition. Defense (facility) council wants to prove you gave quality, evidence-based care, and the plaintiff attorney wants to prove that you did not. A deposition is recorded by a court stenographer and can also be videotaped. The deposition can be in person or by telecommunication. The plaintiff questions the facility staff (you) and their experts, and the defense questions the patient, family, and plaintiff experts.

Your deposition is taken for the following reasons:

  • Both sides want to find out what facts you and the plaintiff actually know, and what each side will say at trial.
  • Everyone will have to tell the same story at trial. This means you can’t suddenly change your opinion.
  • Testimony given in a deposition may be read at trial. If you change your facts at the trial you will look like you aren’t truthful, and will be discredited as a witness.
  • A deposition may be used to narrow the issues in the case. Stipulations of fact and other agreements may be made during the course of the deposition, which may substantially shorten the trial - or allow for an out-of-court settlement.
  • All of these are legitimate reasons both sides have the right to take your deposition. Your attorney has the right to ask questions of you during the deposition, but usually your attorney will only ask questions to clarify an answer which may be confusing. This is generally at the end, after the plaintiff’s attorney is finished.

    Being prepared is essential. If anyone has given a deposition, please let us know in the comments section what it was like and how you felt. Next time I will talk about what to do (and how to act) when giving your testimony.

    About The Author
    Karen Zulkowski DNS, RN, CWS is an Associate Professor with Montana State University-Bozeman, teaches an online wound course for Excelsior College, and is a consultant for Mountain Pacific Quality Improvement Organization. She has served as a Research Consultant with Billings Clinic Center on Aging, and was the Associate Director for Yale University’s Program for the Advancement of Chronic Wound Care.

    The views and opinions expressed in this blog are solely those of the author, and do not represent the views of WoundSource, Kestrel Health Information, Inc., its affiliates, or subsidiary companies.

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