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Like it or not, you may have to testify

Article

Q. I'm the managing physician of our four-doctor family practice group. Although I wasn't named in the malpractice suit against one of my group members, I've been asked to give a deposition. I know very little about the allegation. Must I really spend up to six hours of my time simply because a plaintiff's attorney requests it?

Q. I'm the managing physician of our four-doctor family practice group. Although I wasn't named in the malpractice suit against one of my group members, I've been asked to give a deposition. I know very little about the allegation. Must I really spend up to six hours of my time simply because a plaintiff's attorney requests it?

A. Probably. Just as with income taxes, you may have to grit your teeth and go along—or face the consequences.

You can try to get out of it, though. Ask your attorney (your malpractice carrier may provide one) to contact the plaintiff's counsel to see whether you can avoid giving a deposition. Lawyer to lawyer, he might be able to convince the other side that you don't have any relevant information. Or he might force the plaintiff's attorney to seek a judicial order compelling your testimony. That prospect may dissuade the attorney unless he feels there's a strong reason to get your testimony.

Never call the plaintiff's attorney yourself. You could always be added as a defendant later, and whatever you tell the plaintiff's attorney could come back to haunt you.

Your deposition may be ordered if the potential evidence is germane or material to the issues in the lawsuit. What's germane or material? That's decided case by case, but courts often grant plaintiffs' attorneys wide latitude, and require physicians to give depositions so that their testimony is preserved in the event they're unavailable for the trial.

In this case, since you are the managing director of your group, your testimony about the way the office works may be pertinent to the issues in the lawsuit. Most likely, your objection to appearing would not be honored.

You may also be called to testify because the plaintiff's attorney is hoping to obtain a free expert opinion about the care rendered by the defendant physicians. The defense attorney might even confront the plaintiff's lawyer and seek a fee for your service as an expert witness.

If you're called as a witness, limit your answers to factual issues and don't offer opinions about the patient's treatment. Rely on your attorney to interpose objections so that you'll offer as little free expert testimony as possible.

Not all depositions need be onerous. Remember that you may be a defendant someday, and may need to rely on the testimony of your colleagues.

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Jennifer N. Lee, MD, FAAFP
© National Institute for Occupational Safety and Health
© National Institute for Occupational Safety and Health