May 17, 2012

Turn in a Powerful Deposition, Doctor Defendant

By Dr. Ken Broda-Bahm: 

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The Hippocratic oath also applies to doctors caught in the litigation process. In deposition, the rule is “first, do no harm” to your case. No one wins their own case in deposition. But a medical defendant might end up losing it by falling prey to some common mistakes. Depositions are taken in order to shape an adversary’s case, and to be used one day by a potential fact finder. In our experience, jurors have a natural inclination to support the doctor. There is a good psychological reason for that: It is more comfortable to believe that those we entrust with our health and our lives know what they’re doing. When plaintiffs are able to overcome this strong motivation to believe in the doctor, it is often because the doctor conveyed something in deposition or trial that unwittingly served to help the plaintiff. 

For example, feeling the emotional insult of a malpractice case, the physician may come across as defensive, arrogant, or uncaring. Taking too much care to avoid error, the doctor might seem reluctant to say anything and, as a result, appear unhelpful and uncommunicative. Ultimately, jurors are looking to see someone they would trust as their own doctor. If they instead see someone who is uncertain, irritated, or frazzled – a fish out of water – they come to distrust the doctor’s level of competence and care. That loss of credibility helps make a plaintiff’s case by allowing jurors to set aside their default trust for doctors in order to say that in this case, or against this doctor, the patient actually has a valid claim. In this post, I’ll provide a brief overview of ten areas where doctor defendants can adhere to a “do no harm” strategy during depositions. 

1. Case Assessment

Plaintiff’s counsel wants you to think you have no chance. Targets of physician lawsuits can have an image of the out of control jury, driven by sympathy and aiming toward perceived deep pockets. The hope is that nervous defendants will be rattled by the deposition and immediately believe they should settle the case. But the data on what happens to physician lawsuits doesn’t bear out that fear. 

Instead, you should understand your advantage. Recent data from the Physician’s Insurance Association of America (that we wrote about in this post) backs up the notion that jurors tend to support the doctor. While many cases are filed, only 20 to 30 percent result in any kind of payout, and the great majority of those are relatively modest settlements. Only one percent of cases filed make it all the way to trial and a plaintiff’s verdict. 

2. Language

Plaintiff’s counsel wants to control your words. A deposition is not really about the “discovery” of what the other side has to say. Instead, it is an effort to create evidence supportive of the deposing party’s theory of the case. For the malpractice plaintiff, that means documenting the failure to reach the standard of care using the doctor’s own words. For that reason, the best strategies of the deposing attorney are strategies of control. So the attorney leads, summarizes, and plants specific words and facts to control the testimony. 

Instead, you should speak for yourself. One of the most critical habits for deponent witnesses to develop is the habit of answering in your own words. Simply saying “yes” or “that’s correct” leaves the choice of language to opposing counsel, and that choice isn’t neutral. Jurors will also expect a credible doctor to be an authoritative source of information, and you don’t get that by just being a rubber-stamp “yes” to the attorney’s language. As often as possible, answer questions briefly, but in a complete sentence. 

3. Volunteering

Plaintiff’s counsel wants you to open the tap. Sometimes the lawyer on the other side is just fishing. An open-ended question followed by silence can be enough to induce a gregarious or simply nervous witness to just keeping talking, providing long and unfocused answers, and giving the adversary the opportunity to fish for comments and admissions that help the plaintifff’s case.

Instead, you should control the scope of your answerNervous attorneys will often tell their clients, “just answer the question and stop.” I’ve also heard the advice given to just pick one of four possible answers (“Yes,” “No,” “I don’t know,” and “I don’t remember”). While you need to use your own language (see #2 above), it remains true that you need to stick to just the question and not stray beyond it. Remember, it is a question, not a speech topic. Provide a brief answer in your own words, then stop.

4. Nonverbal Tone 

Plaintiff’s counsel wants to control your style. The deposition depends not just on what you say, but on how you say it. When videotaped, your tone sends its own message when it is defensive or  uncertain. Even when the deposition room is camera-free, a testimony style that sounds less than confident sends an important message to opposing counsel saying, “This is a doctor I can push, and potentially score against during trial.”

Instead, you should use your own styleThe ideal bedside manner for a doctor in deposition is conversational style. That isn’t to say that the deposition is like a conversation — it isn’t. But when you listen to your own voice when in relaxed conversation, pay attention to the pauses, the emphasis, and the natural highs and lows of your voice in your natural register, and that is the sound that you should aim for in your deposition.  

5. Visual Message

Plaintiff’s counsel wants you to look uncomfortable. Just as with how you sound, how you look on the camera is important. Even when there is no camera, opposing counsel is still assessing how you’ll come across on the stand. It is easily correctable, but too often it goes uncorrected and the doctor looks cowed or irritated, or looks pushed back in the seat as if actually trying to disappear.

Instead, you should show your personal bestThe rules sound like they’re straight out of parochial school, but they work: Sit up straight, don’t lean back, put your forearms on the table, fold your hands instead of kneading them, keep your face relaxed and pleasant, and give the questioner full and direct eye contact. Practice those behaviors and you’ll look confident rather than defeated.

6. Conflict 

Plaintiff’s counsel wants a fight. The opposite of a defeated witness is an angry witness, and the plaintiff’s attorney is honestly happy with either. When two professionals – a doctor and a lawyer, both highly trained and intellectually astute – face off across the deposition table, tempers can flare. Or the doctor might feel like outwitting the opponent counsel and winning in deposition. What is more likely is a loss of focus and witness credibility.

Instead, you should control your anger and competitive driveIt is best to remember that this is the lawyer’s turf. Even though the case is about medicine, the strategy is about language and the law, and these are the lawyer’s tools. Focus on answering the question and not on gamesmanship. Stay calm during your deposition, no matter the provocation. When you can’t do that, ask for a break.

7. Pace

Plaintiff’s counsel wants you to answer too quickly. One thing doctors are used to is multitasking: listening to a nurse’s update while reviewing a chart and thinking about the next patient. In your practice, that ability to multitask helps you survive, but in deposition, it can spell doom. Nearly all bad answers in deposition can be traced to answering too quickly with too little reflection.

Instead, you should pause and thinkBefore opening your mouth to give an answer, it helps to do a few things: 1) a mental check to make sure you know what the question is; 2) a pause to retrieve the necessary information in your head and; 3) a final moment to put your answer into words. Then you can speak. A pause does not diminish your credibility. Instead, for all questions that require recall or judgment, a pause shows that you are taking the question seriously.  

8. Listening

Plaintiff’s counsel wants a careless listener. Listening works differently in deposition. In real life, we are used to listening for key words or the ‘gist’ of what is meant. In depositions, on the other hand, the attorney’s language tends to be very purposeful and precise. Doctors who respond to what they expect counsel to say, or answer the point that they think the attorney is getting to are the ones who get into trouble.

Instead, you should remember every word is importantBe overly literal. If the question is “Do you know what time it is?” the answer isn’t “Eleven O’clock,” it is “Yes.” The acronym “EWII” or “Every Word is Important” should help you to remember to consider each question as it is specifically stated before you answer. Where it is unclear, ask for clarity. Where it is inaccurate, correct it.

9. Memory

Plaintiff’s counsel wants you to forget or misremember. Memory can be tricky, especially when questions are asked about events that occurred years ago, or when it focuses on that one patient out of a thousand. Any deponent, including a doctor, can feel that pressure to be helpful by “remembering” something that isn’t quite in one’s conscious recall. The problem with the shaky reconstruction, though, is that it leads to inconsistency – a witness’s quickest path to a loss of credibility.  

Instead, you should stick with what you can recallEarly in the life cycle of your case, sit and take stock of what you do and don’t remember, and stick with that. Also understand that what you know need not be supported by independent recollection, but can also be supported by records or by your pattern and practice.

10. Comfort

Plaintiff’s counsel wants you to be uncertainUltimately, plaintiffs have a better case against a doctor who is uncomfortable with the legal process, uncertain about how it works and what is expected. Owing to the natural fact that doctors make their living in medicine rather than law, that disconnect is predictable. But the job of the doctor’s legal team is to minimize it.

Instead, you should be preparedPutting these recommendations into practice takes work. It doesn’t come naturally to very many witnesses. And why should it? A deposition is a pretty unnatural situation for any witness. But for a doctor who would much rather be back at work helping people instead of being grilled by a lawyer, it can be particularly galling. The answer is practice. When you meet with your attorney and your team, don’t just talk about the deposition, practice it.

Of course, much of this advice applies in its own way to all deponents. Doctors in deposition need to focus on the same skills of clear and careful communication that a jury or judge would expect of any witness. For doctors, though, fact finders are also asking the additional question, “Would I trust this person to be my own doctor?” To get to a “yes” answer to that question, aim to convey three qualities:

  • Confidence
  • Competence
  • Compassion

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Other Posts on Medical Litigation: 

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Photo Credit: Shutterstock (used with license)

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