Your Malpractice Advisor: Eight Things to Never Do at Your Deposition

Ilene R. Brenner, MD


October 26, 2010

In This Article


The majority of medical malpractice lawsuits will require physicians to take part in depositions. While they are time-consuming and distressing, depositions do play a key role in the outcome of your lawsuit.

The deposition is one of the most important parts of your lawsuit; however, most physicians don't do enough preparation.

It is performed to lock in your testimony before trial so that the plaintiff's attorney can use it to frame their questions for the cross-examination and is rarely for your benefit. Although most physicians hope it will lead to their case being dropped, it usually does not.

There is a common misconception that if the physician explains things well, their intelligent responses will prove to the plaintiff's attorney that the whole thing is a mistake. In reality, the less you say the better.

Do not teach the plaintiff’s attorney the facts. Let their experts do that. Think of it this way: the deposition is a document that is going to be used against you. The less there is, the less harm there can be. And as physicians we are taught "do no harm." So abide by that motto when giving your deposition.

Here are some general rules to help make your deposition go as well as possible for you:

Never be less than completely professional at all times. Be polite. Answer the questions as succinctly as possible. Never parry or be sarcastic with the plaintiff's attorney. Don't be funny. It doesn't come off well on paper. Imagine every word you say is being written into a transcript to be read back to the jury...because it is.

Never fail to cooperate with codefendants. Even if you have a codefendant who you think bears some fault in the patient's poor outcome, it is important that all codefendants cooperate with each other at the time of the deposition.

You might think that pointing the finger at one of the other defendants will get you out of the case, leaving only the "guilty party." Wrong. Turning against each other will do the opposite; ensuring that you stay in the case because your codefendant will now point the finger at you. Thus you fall into the plaintiff's attorney's classic trap; sue everyone in sight and have them fight each other to get money from at least one of you.

Do your best not to say anything that could make the other(s) look bad. However, of course, make sure that whatever you say is within the confines of truthful testimony.


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