Deposition Testimony For Healthcare Providers
Best Practices | Litigation
By Richard H. Adler, Steven J. Anglés, Melissa D. Carter
July 29, 2019
Testimony given by a healthcare provider or expert witness at trial differs greatly from testimony given at a deposition. At trial, arbitration or hearing, testimony is presented to persuade a judge, jury or fact-finder on issues of negligence, causation, injury severity, etc. Deposition testimony is different in many ways in its setting, preparation, and purpose.
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 of the provider is requested by the insurance company’s attorney and not the patient’s attorney. The patient’s attorney does not need to take the health care provider’s deposition as he/she has access to meet with the patient/client’s medical authorization allowing open communication.
During the deposition, all questions and answers are recorded by a court reporter who is present at the deposition and hired by the attorney taking the deposition. Since there is no judge present during the deposition, any objections by any attorney 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.
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. It is important to remember that you should not call the insurance attorney to reschedule the deposition date/time since the patient/client has not provided a written medical authorization to communicate directly with the adversary.
Once the deposition date has been set, you can anticipate and frankly should expect the patient’s attorney to contact you prior to your deposition to meet and 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 pre-deposition 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. It is also wise to have the patient’s attorney share with you any opposing opinions by experts hired from the insurance company, including IME reports. 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 pre-deposition 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, your prognosis, and the need for future care. You should also prepare to discuss your knowledge of the patient’s medical history that pre-dates the trauma, and the patient’s overall credibility. The pre-deposition conference with the patient’s attorney is the perfect time to discuss any concerns or “soft spots” in your opinions or paperwork. It is also a good time to discuss whether the deposition will be video recorded in addition to your words being recorded by the court reporter. Lastly, it is an ideal time to discuss what materials you might be required to bring to the deposition, including patient records or treatment documents.
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.
There are several reasons the insurer’s attorney wants to take your deposition.
- The deposition is the first time the insurer’s attorney gets to meet y This attorney will want to “size you up” and determine your effectiveness as a potential expert witness. Your appearance and demeanor at the deposition are critical to creating a professional and favorable impression. It is imperative that you dress and act with a high degree of professionalism at the deposition, and never lose your cool, despite the antics of the insurance attorney who may simply try to find any ‘hot’ button issues.
- The insurer’s attorney will want to find out and “discover” what facts you possess relating to the issues in the law The attorney will also ask questions about your opinions concerning causation, diagnosis, reasonableness and/or necessity of treatment, progress of treatment, referrals, and prognosis.
- 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.
- The insurer’s attorney 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 (and really shouldn’t) second-guess what another doctor or provider was thinking. If the insurer’s attorney really wants to know that, they will take the deposition of the other provider.
Here are a few practice tips to consider:
- If you do not know an answer, admit that you don’t know it. Some healthcare professionals think they are required to have an answer for every question asked.
- If the patient’s attorney objects to a question, stop talking. He/she will then instruct you whether or not to continue with your answer.
- After the deposition is completed, do not discuss anything in the presence of the attorney that required your deposition. Anything you say may then be cause to reopen the deposition. If you want to discuss something with your patient’s attorney, do so when you are alone with him/her.
- Remember, your testimony and impressions are among the most important aspects of your presentation. If you give the impression of professionalism, competence, fairness, and honesty, you will make a great contribution towards the successful completion of the case. It will help your patient and may keep you from having to testify again at trial.