Malpractice: How to survive a deposition

June 3, 2005

Be concise, be cool, be prepared, and don't try to outwit the plaintiff's attorney.

When a doctor is sued for malpractice, what keeps him up at night is the prototypical Perry Mason scenario: the imposing courtroom, the relentless plaintiff's attorney, the stone-faced judge and jury. That may be good TV, but for most physicians, it's misplaced worry. Since most cases never get to court, it makes more sense to worry about an impending deposition than a trial that may never occur.

The deposition is a standard part of the "discovery" process that enables both attorneys to quiz their opponent's clients and witnesses. While depositions may seem less threatening than a trial, doctors who aren't prepared tend to let down their guard and reveal incriminating details that provide ammunition for the other side. Or they'll display anger or arrogance that would alienate a jury. These are bad mistakes, because the deposition process is designed not only to reveal the facts and the merit of the case, but also to test a defendant's credibility and how he'd perform before a jury.

If a doctor performs well, the plaintiff's attorney may decide to drop the case. If he does poorly, the lawyer will be more eager to bring the case to court. If that happens, the doctor has really shot himself in the foot. All of his testimony from the deposition will become part of the court record, and can be used against him in court.

Be prepared. Well before the deposition, carefully review all the documents, records, and references that are relevant to the case. Then review them again just before the deposition to keep the details fresh in your mind. Alert your attorney to any areas where you feel vulnerable or uncomfortable. Ideally, he should lead you through a mock interrogation using the tough questions you're likely to face. That will expose weaknesses in your preparation, attitude, or mannerisms.

Take your time. Once the plaintiff's attorney begins his questioning, don't be afraid to collect your thoughts before answering. Otherwise, you could blurt out an ill-considered response that could later hurt your defense. If the attorney pauses after you've responded, don't feel obliged to fill the empty space with additional details. Just wait for the next question. If you don't know the answer, or aren't sure, say so.

If a question is legitimate, you're required to answer it. But if it seems outside the scope of the lawsuit, give your attorney time to object. If the question isn't clear, ask for clarification. If it seems tricky, take time to consider it carefully. That will also give your own lawyer a chance to object to the way the question is phrased, thereby alerting you to potential hazards. For instance, he may say, "You're asking my client to speculate."

The plaintiff's attorney may try to confuse you with rapid-fire questions that seem innocuous, but might contain suppositions that could be damaging if you agree with them too hastily. Don't be afraid to ask him to repeat the question slowly. If after several hours of grilling you feel tired, ask for a break. That's better than inadvertently admitting something under pressure that will damage your defense.

Keep it short. Plaintiffs' attorneys are always fishing for information that will help their case-or harm yours. So keep your answers brief and to the point, and don't volunteer information that isn't solicited. What you don't say can't hurt you.