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Depositions: The Heart of the Case

Welcome! This article is part of a Medscape Physician Business Academy course, . Visit the Course Page to take the full course and receive a certificate.

Why Depositions Are so Critical

The depositions have enormous significance to your case. They will help determine whether the lawsuit could be dropped or settled without going to trial.

In the Medscape survey of doctors who had lawsuits filed against them, 28% indicated they were settled after the depositions and 19% said they were actually dismissed at that point.

Even if your case does go to trial, the depositions will play a key role in the outcome. Segments of a deposition may be presented as evidence to the jury—by reading from the transcript, or even showing a videotape.

The most important part of the deposition for you will be when the plaintiff's attorney interrogates you.

Your deposition usually takes place in your lawyer's office or in your own office, for your convenience. You will be under oath, and a court reporter will take official notes. In addition, there may be audio or video recordings.

The most important part of the deposition for you will be when the plaintiff's attorney interrogates you. In addition to covering your professional background, he or she will examine in great detail various aspects of the care and treatment you gave the plaintiff.

Preparing for the Deposition

To make a positive impression in the deposition, it's very important for you to be thoroughly familiar with all aspects of the patient's case.

Know the medical record like the back your hand. Study all pertinent documents, and become completely familiar with the treatment rendered and your relationship with the patient.

You should also be familiar with the whole area of medicine involved in the case. For example, if the suit is about a gallbladder operation, you will need to study up on such matters as types of surgery, gallbladder morbidities, when to operate, and the possible effects of surgery. Even if they are not directly related to the case, not knowing these matters might make you appear incompetent to some jurors.

Doing this homework will take hours of your time. In the Medscape survey, 36% indicated they spent more than 40 hours on defense preparation.

Many attorneys and carriers will insist that you go through a rehearsal of the deposition, using a stand-in for the plaintiff's attorney. This sort of preparation is invaluable, because the actual deposition can throw you off your game and take you out of your comfort zone.

The rehearsal helps you get comfortable and familiar with the process. You will have a chance to get used to the format, learn what will be asked, and get a sense of how hard the other side is going to push you.

Appearances Matter

When you take the oath and the plaintiff's attorney starts shooting questions at you, you should be well-rested, confident, and alert. The many hours of homework you slogged through should put you on top of the facts of the case.

You may not enjoy the direction of the interrogation, but please don't share your opinion.

Appearances are all-important in your deposition. The goal should be to behave like Marcus Welby, MD, the TV doctor from the 1970s who exuded competence and decency. No matter what the plaintiff's attorney throws at you, remember that you are a competent, unflappable physician who is also warm and friendly to everyone.

You may not enjoy the direction of the interrogation, but please don't share your opinion. Don't be sarcastic or contemptuous, don't be brash or dismissive, and certainly don't imply that a question is stupid. That's not the dignified image you need to convey.

If you come across as arrogant or if you show you're not in command of the facts, the other side may well decide that you'd look very bad in front of a jury. They will feel that this can help them, and they might press for a trial rather than settle the lawsuit.

Further Pointers for the Deposition

Don't Let Your Guard Down

There are many situations where you shouldn't assume that people are trying to trick you, but this is not one of them. "It is a very bizarre situation. Each word that you say has to be measured and thought about," a physician commented in the Medscape survey. "It is a very strange way to have a conversation with someone."

Stick to Your Story

It's very important that you stick to one narration and not contradict  yourself. In the Medscape survey, one physician advised, "State the  facts clearly, and have them straight from the beginning." Coming up  with new versions of the truth will be interpreted as lying.

Don't Speculate

Don't make assumptions about what the facts are. If you don't recall  something, say so. If you aren't sure of the answer, you can say that  you don't remember or you need to consult the record.

Don't Guess What Is Being Asked

If you're not sure about the question, you can always ask for it to be repeated, or for some clarification.

Don't Walk Into Open-Ended Questions

Be careful when answering such questions as, "Wouldn't you agree that…?"  You don't know what this is leading to. You may suddenly find yourself  committed to an answer you didn't want anything to do with. You can  always ask for clarifications.

Look to Your Attorney for Help

Your attorney will help defend you against improper questions. Your attorney should object when the plaintiff's attorney is mischaracterizing what you said.

Don't Endorse a Source

Don't offer an unqualified endorsement of material, such as a textbook or author. You might agree with 99% of what that source says, but there may be some tiny parts that you disagree with, and these may be used against you.

Don't Volunteer Information

Some plaintiffs' attorneys are very nice and encouraging, making you provide more information than you need to. Volunteering information will only open up new areas to examine.

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Welcome! This article is part of a Medscape Physician Business Academy course, . Visit the Course Page to take the full course and receive a certificate.


Sam Rosenberg, JD; Leigh Page

| Disclosures | January 01, 2017

Authors and Disclosures


Sam Rosenberg, JD

Partner, Rosenberg Jacobs & Heller PC, Morris Plains, New Jersey

Disclosure: Sam Rosenberg, JD, has disclosed no relevant financial relationships.

Leigh Page

Freelance healthcare writer, Chicago, Illinois

Disclosure: Leigh Page has disclosed no relevant financial relationships.