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

Ilene R. Brenner, MD


October 26, 2010

In This Article

Expert Advice for Your Deposition

Don't guess at answers. If you don't remember, simply say "I don't know." Don't offer what you "could" have been thinking, or even what you "should" have been thinking. Even though it may seem monotonous, you won't look stupid.

Sometimes the attorney, after a few "I don't remembers" will try to corner you by saying, "Now that you've reviewed the chart, what do you think the patient had." Again, your answer is the same. You could say, "Since I don't remember my thinking at the time, just looking at the chart is insufficient to generate an accurate conclusion."

They may push harder, "Let's just say you saw this patient today, under these same circumstances, what would you think?" This is where most doctors fold and start offering up opinions. Stand firm: "The presence of a patient is critical to making accurate diagnoses, so I cannot make any suppositions as to what the patient could have had, given that limited example."

A good plaintiff's attorney will take this 1 step further, they’ll turn it into a medical school type question: "If a patient presents with fever, SOB, and tachycardia, what is part of your differential diagnosis?"

The trick here is to answer as broadly as possible and give them 10 possibilities. If your case is about a missed pulmonary embolism, don't say, "Well, it could be PE." Say, "It's a very long list of conditions that meet those criteria."

Make the attorney work for it. Make them counter with, "Okay, please give me that list." Don't make their lives easier.

Don't answer any more than the specific question asked. Don't think that if you give a long detailed answer that goes beyond what is needed that it will suddenly end the questioning. Be careful of going on tangents. The more information you give to the plaintiff's attorney, the more questions they will think of. And don't think that anticipating their next question will save time either. It will only give them 5 more questions to ask you. The goal is to force the attorneys to supply their own knowledge during the questioning process.

For a yes or no question, stop at yes or no. Don't feel like you have to explain further. Force the plaintiff's attorney into asking a follow-up question. Here's a sample scenario:

Q: "Do you remember how many times you visited with the patient?"

Answer #1: "No, it could have been 2. Maybe 3. I didn't document it so I am not sure. I usually check on a patient at least 3 times per shift." Bad answer.
Answer #2: "No, but I usually check on a patient at least 3 times per shift." Better answer.
Answer #3: "No." Best answer.

Don't simplify medical language for the plaintiff attorney. Use medicalese generously. Try to use specific medical terminology and jargon wherever possible. This strategy forces the attorney to use their medical knowledge and some attorneys are smarter and better prepared than others. If the plaintiff’s attorney does not completely understand your answer, it is harder for them to formulate questions to counteract it.

Example: Say "...distal to the MCPJ in a circumferential pattern..." instead of "just beyond the first knuckle that makes a circle around the finger..."


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