Author: Richard H. Adler

Testimony given by a healthcare provider or expert witness at trial differs greatly from testimony given at a deposition. At trial, testimony is presented to persuade a judge or jury on issues of negligence, causation, injury severity, etc. At a deposition, testimony is sorted out and inquired into so that all sides know the facts, circumstances, and opinions of the provider.

SETTING. A deposition is the taking of testimony under oath. It is conducted out of court and generally in the healthcare provider's office. In most cases, the deposition is requested by the insurance company's attorney. All questions and answers are recorded by a court reporter who is present at the deposition. Since there is no judge present during the deposition, any objections by the attorneys to any question (such as the question is not relevant, misleading, etc.) is simply noted by the court reporter and preserved for a later time when a judge will rule on the appropriateness of the question and response.

PREPARATION. Whenever the insurer's attorney is requesting your deposition, a similar notice goes to your patient's attorney advising that your deposition date has been set. If the date is inconvenient for you, you should advise the patient's attorney right away so that a mutually agreeable date can be rescheduled. Most times this can be accommodated. Once the deposition date has been set, you can anticipate the patient's attorney wanting to meet prior to your deposition to review the case and your opinions. All too often, we hear about healthcare providers who are embarrassed at depositions since they were unaware of certain aspects of the patient's medical condition. When setting a predeposition conference with the patient's attorney, it is a good idea to ask the patient's attorney to bring along other records and reports about the patient's injuries and treatment. Having a "big picture" understanding of the patient's condition will aid you greatly at your deposition.

When reviewing the case with the patient's attorney at the predeposition conference, the discussion may focus on one of more of the following areas: the patient's injury, your treatment of the injury, the reasonableness and/or necessity of certain treatment, the causal relationship between the trauma and the injury, your diagnosis, and prognosis. The predeposition conference is the perfect time to discuss any concerns or "soft spots" in your opinions or paperwork.

Another approach in preparing for the deposition is to ask the patient's attorney to give you an "overview" or a "run-through" of various questions or issues he/she anticipates the insurance attorney asking.

PURPOSE. There are several reasons the insurer's attorney wants to take your deposition.

1. The deposition is the first time the insurer's attorney gets to meet you. This attorney will want to "size you up" and determine your mettle as a potential expert witness. The provider's appearance and demeanor at the deposition are critical to creating a favorable impression. It is imperative that you dress and act with a high degree of professionalism at the deposition.


2. The insurer will want to find out and "discover" what facts you possess relating to the issues in the lawsuit. The attorney will also ask questions about your opinions concerning causation, diagnosis, reasonableness and/or necessity of treatment, progress of treatment, referrals, and prognosis.


3. The insurer's attorney will ask facts or questions in order to "pin down" your testimony at the deposition to make sure there are no surprise opinions at the time of trial.


4. The insurer may look to challenge the patient's credibility by suggesting that the information given by the patient to you differs from that given to another provider. Be sure to resist any temptation to interpret or draw conclusions from the records of another healthcare provider. You are not required to second-guess what another doctor or provider was thinking. If the insurer's attorney wants to know that, they will take the deposition of the other provider.

PRACTICE TIPS. We have many practice tips to offer healthcare providers when preparing for or giving deposition testimony. In next month's article, we will provide a list of our "practice tips" on deposition testimony. We would also like to include the practice tips of our readers. What works for you? What doesn't? Simply fill in the space below and return it to us. The more response we receive, the better the practice tips.

Here is my practice tip on preparing for and testifying at a deposition:

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CONCLUSION

Remember, your testimony and the impression you give are among the most important aspects of your presentation. If you give the impression of competence, fairness, and honesty, you will make a great contribution towards the successful completion of litigation. It will help your patient and will keep you from having to testify at trial.

Very truly yours,
ADLER GIERSCH, P.S.

Richard H. Adler
Attorney at Law