Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Tips on Being an Effective Witness at Deposition

Ray Kreichelt, Associate Dir. Claims UF HSC Self-Insurance Program
1-1-3 A lawsuit consists of snapshots, often taken out of context, in the day in the life of a health care provider. It is focused on one patient to the exclusion of all other patients with whom that health care provider interacted. A series of sound-bites will be stacked end-to-end by the plaintiff’s counsel, who hopes to convince a jury that the plaintiff was injured by an act or omission of the health care provider, and deserves compensation. Therefore, careful choice of words is essential at a deposition, as deposition testimony may be admissible at trial to influence the jury.   Successful defense of a lawsuit is dependent in large measure upon demonstrating the plaintiff received competent, conscientious, compassionate and professional health care services. Proof hinges upon you – the involved health care provider.  Your demeanor and how you answer questions posed, always truthfully, whether in deposition or trial, are critical. You need to devote substantial time to be fully prepared for your deposition.  Generally, expect to spend a minimum of two hours in conference with your attorney. Preparation consists of two parts:  Initially, you will conduct a thorough review of the record and discuss the facts with the defense counsel.  You need to understand how your role relates to the roles of the other health care providers involved in the care and treatment of the plaintiff. At this time you will have the opportunity to put in perspective apparently odd or unusual chart entries in context of the chart as a whole.  Secondly, you need to understand deposition “lingo.”   Deposition testimony is not like normal conversation. Your attorney can assist you in understanding traps that may be tossed your way.   Some commonly encountered traps include:  

• Mixing “standards of care” with “standards of documentation:” Everyone is familiar with the old adage, “if it isn’t documented, it didn’t happen.” Never agree with that statement if made by the plaintiff attorney.  It is impossible to document in detail everything that is done. The plaintiff may ask, “Doesn’t the standard of care require you to document …?”   Florida Statute 766.102 defines the prevailing standard of care as that “level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.” Documentation is not mentioned in the statute. The key is the actual care provided to the patient.  Of course, proving what actual care you provided, without independent recollection by the health care provider, may be difficult if the care provided is not clearly documented. Often, however, when viewing the chart and outcome in combination, one can confidently say “… was done because …” or one can testify “I know it was done because I always do it that way.”

• Mixing “standards of care” with “wouldn’t it have been better …” or “it wouldn’t have hurt would it to have …” are “slippery-slope” questions.  Intuitively, you may feel compelled to agree, but don’t play the game.  Once you start sliding, you can’t stop.  Keep in mind the definition of standard of care set forth in the Florida Statutes.  Respond to questions by drawing the plaintiff back to the standard of care.  Start your answer by saying something to the effect, “The standard of care required …, which is what I did.  The standard of care did not require what you are suggesting.  I did what a reasonably prudent health care provider would have done under the circumstances.”  And if he persists with the question, “Again, the standard of care required …, which is what I did.   You are suggesting a course of action through the retrospective scope that was not required by the standard of care.”   And finally, if the plaintiff persists in this line of questioning, a proper response would be, “Again, the standard of care required …, which is what I did.   You continue to suggest a course of action that was not required by the standard of care.”  If pushed further, a proper response might be “I can only speculate in retrospect that the results might have been better.” The key word is “speculate”.

• The difference between “probably/probable” and “possible” is critical in answering a question: To prevail in a lawsuit, the plaintiff must prove his or her case by the greater weight of the evidence, i.e., that it is more probable than not that the medical negligence occurred and that the plaintiff was damaged as a result of the medical negligence. Use of the word “probably” in response to a question by the plaintiff equates to the greater weight of the evidence.   You need to think twice before you use the word “probably” in response to a question. Use of “possibly” or “I can speculate” in your answer gives away nothing to the plaintiff. If a hypothetical question is posed to you that asks you if something is “possible”, and you know that such a possibility existed, then respond that it is “possible” or it is a “possibility”.   Unless you are convinced that something is more likely than not to have occurred, never respond that it is “probable” that the event could occur.

• Use the “first bite”: You can answer a question posed anyway you like. Remember, the plaintiff is asking questions seeking a sound-bite that can be used at trial to your detriment. You have the opportunity to phrase your answer to fairly put in perspective what transpired. Question – do you “recall” brushing your teeth on November 21, 2003?   You answer “no.”  The answer is truthful, but it is not fair. You should answer, “I know I brushed my teeth because I brush them every day, but I can’t recall doing so on November 21, 2003.”

• The “wrap-up” question: You are in hour three of your deposition. The plaintiff says he is about done.  He then asks “We would agree then that …” essentially summarizing your testimony. The plaintiff is doing this to have you agree to his word choice. If you say “yes,” you are essentially agreeing with both the context and concept of the question.  Avoid agreeing with the “wrap-up” question. Respond by saying something to the effect, “I don’t know what you agree with, but I have previously testified on that matter and will stand on the answers that I have given.”

If pushed, make the plaintiff break the question down into bite-size subparts, and then give the answer using your own words.

To succeed in a deposition, you need to be a good listener. Some critical tips to remember:

• Listen to the question.

• Repeat the question word-for-word in your own mind.  If you cannot do this, ask that the question be repeated.

• Ask yourself if you understand the question.  If you cannot do this, ask that the question be repeated or clarified.  Be prepared, if you ask that it be clarified, for the plaintiff to ask what part you don’t understand. Don’t respond with a monologue.  Respond with something simple like, “Your use of the medical terminology makes no sense.”

• Prepare your answer in your mind after you understand the question.

• Now answer the question.  A short phrase is normally sufficient.  A simple

  “Yes” or “no” would also be appropriate, provided it cannot be taken out of context as a damaging sound-bite. If you agree with the question by responding “yes”, you are agreeing to the word choice of plaintiff’s counsel.  Answer only the question asked. Avoid longwinded answers. Your job is not to educate the plaintiff. Your job is to demonstrate that you provided competent, conscientious, compassionate and professional health care services, which complied with the professional standard of care.