Medical Malpractice Depositions: Tips For Your Testimony
by Karen Zulkowski DNS, RN, CWS
Part 4 in a series discussing the process of litigation in patient care lawsuits
This month, I would like to address what kinds of things you will be asked when giving a deposition.
A deposition will start with the logistics of asking for your personal information. You can expect to be asked for your full name and present or applicable occupations. Only answer what is asked, and don’t volunteer further information.
Next, it will go into what you know about the plaintiff’s care. Only answer what you did, not what you heard or think might have happened. If you don’t know something, you can refer to the notes, and if you don’t remember, simply say so. If you have any lingering questions about what you said, you can also ask to read the transcript when it is finished, making any corrections then.
If you are the expert witness, the burden of proof - regardless of whether said proof is for or against - is on you. I have had attorneys read everything I have ever written and ask questions about it (I just wish my undergraduate students were as thorough)! As the expert, however, you will never have met the patient, and will have to rely on the medical records. This is why documentation is so important. You will have to give examples of why or why not the care provided was based on best practices and met the “standards of care.” This is why knowing your practice is evidence-based is critical.
Some depositions are short (20-30 minutes), and some, especially for the expert witnesses, can be up to five hours. When both the defense and prosecution are finished collecting depositions, they typically enter into settlement discussions. Very often you will be notified of a trial date that is either postponed, or has the case settled ahead of time. I had a case settle late in the afternoon on the day before I was set to testify at the trial. Once a settlement is reached, you won’t know what the outcome was (like the terms of the settlement, for example). As a witness you do not get to see the trial until after you testify. It is rather daunting to sit and answer questions with everyone watching, so if you are nervous, remember that you are in good company!
Some things to keep in mind:
- Never answer a question you don’t understand. One thing the attorney does is ask questions that are a double negative, such as “is it not true that you disagree?” This makes no sense, so ask to have it rephrased before responding.
- Ask for a break if you need it. Don’t sit there in misery if you are thirsty, have to go to the bathroom, or just want to walk around. Say so, and take a moment to gather your thoughts.
- Don't get flustered if the attorneys argue. This has to do with procedure and legal wrangling, not with you. Sometimes giving a deposition seems like a mind game, with the attorney trying to get you to say something you don’t mean. The best advice is to think before you speak and take your time.
Let’s hope you never are involved in any lawsuit, and that your practice may be evidence-based. Next time, I am going to talk about palliative care. If you have suggestions on topics you would like me to discuss, please post them below.
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.