You have been sued over allegations of medical negligence. You are angry. You received the Summons & Complaint from the plaintiff’s attorney, which you promptly reported to your medical malpractice insurance carrier. You were assigned a defense attorney, who discussed the case with you, gathered medical records, and obtained an expert review in your specialty. Interrogatories were formally answered and now you have not heard from your defense attorney in months. You are just about ready to believe that this ridiculous lawsuit is being dropped, and then you receive the letter from your defense attorney stating that the plaintiff’s attorney wants to take your formal deposition, under oath, with a court reporter writing down everything you say. Your breathing becomes rapid, your skin becomes moist, and you are, in short, panicked over having to go through with this totally unfamiliar procedure. The old adage of “I’d rather have a root canal than go through this!” comes to mind, and you defensively muster your courage to state: “I’ll show that attorney. I’ll show him I can win this case. After all, I’m smarter than him!” Wrong answer. Wrong attitude. Let’s talk.
In my 45 years of watching medical professionals give depositions, the one universal truth that needs to be hammered home is that one does not win the case at the time of the deposition. You must simply survive the deposition. And to do so, one must adopt an attitude that will allow survival. Take a deep breath, exhale slowly, arms out, palms up and repeat after me: “I have nothing better to do today than answer this attorney’s questions.” Based on a true case, the following is a situation in which you might find yourself.
You and your defense attorney arrive at the office of the plaintiff’s lawyer where the conference room consists of wood panel walls and floor-to-ceiling windows overlooking trees gently blowing in the wind. You will be directed to a comfortable leather chair at the end of a long oak table with several attorneys and insurance company representatives taking the other seats and greeting each other with familiarity. You will be asked by a kind and personable assistant if you wish coffee and plaintiff’s attorney will chat pleasantly with you about raising children and attending soccer games. Your guard is down. You are relaxed. Then, all of a sudden, the plaintiff’s attorney will ask the court reporter if we are on the record, and having received an affirmative response will then quickly ask you the first question of the deposition: “Tell me, doctor, are there symptoms other than diaphoresis for the hypoglycemia that killed this child’s brain?” The answer to the first half of this question is that there are symptoms other than diaphoresis for hypoglycemia, but the answer to the second half of this question is that you do not agree hypoglycemia had anything to do with this child’s injury. If, like most people, you happened to have answered “yes” to this question then this case is over. You just lost. In the actual case described here, the doctor answered with “Well, I’m just a doctor, could you please break down that question for me?” And then, realizing the tactic had not succeeded, the plaintiff’s attorney proceeds to uneventfully ask questions pertaining to the medical record. At this deposition you may truly be the smartest person in the room, but this is not your bailiwick – yet it is a place where the attorneys have spent most of their careers. This is not a time to express your anger and frustration, it is a time to listen to each question carefully and answer only that question. If the attorney asks you what time it is, simply tell the attorney the time – not how to build a clock. The answer “Yes” is acceptable; the answer “Yes, but …” is not acceptable.
There are dozens of bullet points that an experienced attorney can and will provide to you for how to properly prepare for and then give an excellent deposition. Make sure that you and your defense attorney take the time to review all of these essential points. And remember the one universal truth in all of this – one does not win the case at deposition, one simply survives.
