Malpractice Consult

By Lee J. Johnson, JD

Testifying at a deposition

Answers to your questions

Q: I was recently subpoenaed to give a deposition in a case against my hospital and another physician. I'm not familiar with the case, but I was the hospital's chief of service when the incident occurred. If I decline to answer questions about the case, which I haven't reviewed, could any action be brought against me? What if the questions involve confidential information protected by peer review? And can I ask the hospital or the plaintiffs' lawyer to pay me for my time spent testifying?

A: In what capacity are you being asked to testify? The allegations against the hospital could include activities within the province of the chief of service, such as credentialing or policy. If you're a hospital employee, you may be called as a defendant—although ordinarily the lawsuit would name you individually. Even if you aren't named as a defendant, the hospital counsel may consider your testimony to be part of your obligation to your employer. Contact your liability insurer, who can advise you and provide counsel.

If you're neither an employee nor a defendant, you're considered a "nonparty witness." You may be eligible for a small witness fee, perhaps enough to cover the cost of your transportation to the deposition, but probably not the cost of your missed hours in the office.

On the other hand, if the plaintiffs' lawyer asks for your medical opinion as to whether the defendants met the standard of care, you'll be entitled to an expert witness fee, which you should negotiate with that attorney. Experts often receive several hundred dollars to review a case, and thousands if they testify in court.

The plaintiff's lawyer may be on a fishing expedition, or he could be considering whether to add you as a defendant. Your counsel should ask why your testimony is relevant, and may be able to convince the plaintiffs' attorney that you needn't testify. If the plaintiff's attorney won't voluntarily drop you from his witness list, your lawyer can force him to make a motion for a court-ordered deposition. If the information he's seeking isn't relevant, the judge could quash the subpoena.

You can decline to reveal information protected by peer review confidentiality. However, the plaintiff may seek a judge's order to compel your testimony.

You needn't obey every subpoena. Consider one signed by a judge mandatory; failure to comply might constitute contempt of court. However, if the plaintiffs' attorney issued the subpoena, you may not have to testify.

The basic rule is this: If you're not a party to the lawsuit, you can always insist on a court order before testifying. Just making the motion for a judge's order may eliminate the request. If you're an expert witness, you should insist on being paid.

The author, who can be contacted at 2402 Regent Drive, Mount Kisco, NY 10549, or at lj@bestweb.net, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

Lee Johnson. Malpractice Consult.

Medical Economics

2001;24:53.