As a provider of medical malpractice insurance, I have had a significant amount of interaction with attorneys defending our clients. Since a malpractice claim can create tremendous stress in a doctor’s professional life, I thought would interview a fictional attorney, representing an experiential composite. This month our virtual attorney will answer questions related to depositions. Next month we will address the actual courtroom activity.
Q: What would be the first suggestion you would have for a physician facing a medical malpractice claim?
Trust your attorney. Although you may want to “manage” your case, remember that your core competency is in the examining room and the surgical suite. The lawyer’s expertise is in within the judicial system. The doctor’s cooperation is essential to mounting a successful defense. Should your lawyer ask tough questions or force you to face uncomfortable issues, the purpose is to best prepare a strategy for defense and assess your potential strengths and weaknesses in a court setting.
Q: What does the discovery process represent?
After the initial activity of requests for medical records, contacting the insurance carrier, notification that a suit is being filed, and assignment of an attorney, the case proceeds into the discovery phase. At this point attorneys for both sides review records and documents in order to evaluate the claim. A major portion of this process involves interrogatories and depositions.
Q: How best does a doctor handle the written interrogatory?
First remember that your written answers are admissible in court, so review all of them with your defense attorney. The questions, and their repetitive nature, can be irritating, so avoid letting your frustration get the better of you. Answer each question seriously and honestly.
Q: How do you prepare for a deposition?
Once a lawsuit is threatened, exercise discretion in your comments. Anything said to another person, other than your attorney or insurance claims representative, may be subject to discovery by the claimant’s counsel. Your attorney will advise you on strategy. Perhaps it will be advisable to obtain and review the patient’s testimony in advance of yours. Your attorney will also suggest a thorough review of your medical records, as well as any other applicable records from other physicians. Your attorney may also seek outside expertise with medical issues for better understanding of the case. Finally, your attorney will want to review questions that you may be asked in advance to help advise you on the best approach in answering them.
Q: Any recommendations for the actual process of giving testimony?
First and foremost, be truthful and avoid guessing! Keep your responses brief and accurate, delivering them in a calm and thoughtful manner. Do not volunteer any information other than direct answers to specific questions. Take your time in processing questions before answering, allowing your attorney time to enter any objections to a question. Always follow your attorney’s instructions throughout the process. Remember the opposing attorney is seeking to elicit answers that will be beneficial to their case, as well as assessing your demeanor under questioning. Consider this as a dress rehearsal for the potential trial.
Q: Does the defendant get to review the deposition transcript?
Following the deposition, you will receive a copy of your testimony for review. Upon reading it over thoroughly, provide your attorney with notes on any suggested changes or corrections that you feel are necessary for accuracy. Do not make any corrections or notes on the document itself, without first getting approval from your attorney.
Several years ago, we polled our clients as to what they expected from their medical malpractice carrier. Their resounding answer was an aggressive defense should a claim be filed against them. In this column, I hope to have provided some suggestions on how a physician can best assist the attorneys in mounting that aggressive defense. Although impossible to address every deposition concern in a single column, I have highlight some of the more common and key factors of concern.