Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful. Finally, these articles are not intended as specific legal advice. For that, please consult with an attorney licensed to practice in your state.
While many medical malpractice cases never reach trial, almost all defendants are deposed. This means the defendant’s deposition is a singularly pivotal step. It is the plaintiff’s chance to make their case as strong as possible; and the defense’s chance to see how their client presents under pressure.
The plaintiff’s lawyer will be doing all they can to score a point. Your lawyer will be looking at how you react.
Let’s look at a few scenarios to see where the traps may lie and how to sidestep them.
Before my deposition my lawyer told me to just say “yes”, “no” and “I don’t know” but the plaintiff’s lawyer didn’t ask questions where I could respond that way. Most of her questions were like “What happened when you were called to do a nephrology consult on Mr. Jones?” and then she would just sit back and wait for me to tell her a story. How could I have dealt with this?
What the plaintiff’s attorney wanted you to do is what lawyers call “testifying in the narrative.” Her hope was that you would spill some beans that would make her case.
This tactic works because defendants feel, well, defensive. You want to tell your story.
But once you begin down that path – and relax into your long-winded version – you may slip in ways that will help your adversary.
Your interests are instead best served by giving specific answers to specific questions. When confronted by a vague and open-ended question, just say, “This was a complicated matter. Can you please be more specific?”
Once the lawyer sees you are going to sidestep the trap, they will start asking the questions in the form of “What did you do at (time)?” and “What happened next?”
While they are still staying relatively general in the hope that you will launch into a narrative at some point, they are now marching forward in more manageable time segments. You can now answer about each segment as it is asked and then stop – forcing them to ask about the next time period before you answer again.
Even “What happened next?” will not be the trap that it could have been. Why? Because now you will be thinking in quantized events rather than using the question as a floodgate to narrate the entire rest of the case in one answer.
Your testimony will be controlled instead of a lengthy narrative. It will also allow you a moment between intervals to think, which will also keep you from going on too far.
At my deposition, the plaintiff’s lawyer was asking a series of stepwise questions about the decisions I made based on the pulmonary function values in a critical care patient. He then asked what I would have done if the values had been ones that he then supplied. I started to answer and got as far as “Well if that were the case then I would have considered intubation and…” when my lawyer objected and instructed me not to answer because it was a hypothetical question. The lawyers got into a fight over this and the plaintiff’s lawyer demanded that they call the judge. The judge instructed that I had to finish my answer. How could I have avoided this?
The questioning process during a deposition is not conducted under the strict rules which govern direct and cross-examination in court. Your deposition is an opportunity for the plaintiff’s attorney to dig in ways that they could not during a trial. Your attorney must therefore stand in for the role of the judge and block inappropriate questions by objecting. This does not mean that that objection will necessarily be upheld later. All the objection does it preserve their opposition to what you were asked so that they can take it up with the judge. But it does prevent you from answering at that time in a way that will become part of the record.
In this case, your lawyer was correct that this was an improper question because as the defendant, you are there only to testify about the facts. Hypothetical questions are for the expert witnesses. Your lawyer’s job was to stop the question with an objection before you had a chance to answer.
Unfortunately, he did not do so fast enough. Once you began to substantively answer the question, you essentially gave your inadvertent assent to do so. That is why the judge ordered you to finish rather than striking the question.
While you cannot be forced to answer an improper question, you can volunteer to do so, and you had unknowingly done just that.
You can guard against responding too quickly to inappropriate questions by never answering any question without a slight pause – at least one breath – to give your lawyer a chance to “wake up” and object before you speak irrevocably.
You should also be proactive and be wary of any question with an “if” at the start. If you think it is a hypothetical and your lawyer is just sitting there, turn to them and ask “Can I answer this?”
When I was deposed about a case in which a patient bled internally post-operatively, the plaintiff’s lawyer asked “Given that the hematocrit was falling on Sunday when you were on call, why did you not order a CT?” Actually, there was one borderline low value in the late evening that was stable on a repeat CBC. And the patient did not show evidence of active bleeding until very early Tuesday. If there was any negligence, in this case, it occurred on Monday, when I had no involvement in his case. My answer was “A CT was not required at that point.” My lawyer is very annoyed over this answer. Why? It was completely medically correct.
Your lawyer is annoyed because you answered in a way that implicitly accepted as a fact the false assertion that the hematocrit was falling on Sunday when the patient was under your care. Your answer can now be misunderstood by a jury as your thinking that a CT was not required in the face of “clear proof” of likely bleeding, which is a serious problem for you.
You would now have to explain your side after the fact to the jury. But, as political pundits say, “If you’re explaining, you’re losing.” The plaintiff’s attorney would read that part of the deposition to the jury to challenge you with – a process called impeachment – and in that setting, your new version would sound like a desperate after-the-fact change rather than the valid statement of the real facts.
Your answer should have been just the explanation you gave now: “The hematocrit was not falling. There was one borderline low value in the evening so I ordered a CBC for follow-up and it showed the hematocrit to be stable. This pattern is common in postoperative patients. A CT was not indicated at that point.”
Be alert for “goal post-moving” questions (a) that state falsehoods or assumptions as facts; (b) that misconstrue your testimony earlier in the deposition; or (c) claim as a medical tenet or Standard of Care something that is not.
The plaintiff’s lawyer at my deposition was a nasty jerk. He kept cutting me off, interrupting me and asking questions in an obnoxious tone of voice. Finally, I told him “I am here to answer your questions but I have to demand that you treat me civilly.” I was proud of myself for doing that coolly. Now my lawyer is mad at me. Why?
Because you took the bait.
You revealed to the plaintiff’s lawyer how to get under your skin. He now knows that he can throw you off your game if he does this at trial.
While your response was certainly preferable to blowing your stack, the best response is to just think to yourself, “I know what you’re up to. Watch me not care.”
If it is a problem and your lawyer is not stepping in, just ask for a break when the lawyer is not acting this way (so he won’t make the connection). On your way to the bathroom or the water cooler, just mention quietly to your lawyer that he needs to curtail this.
Your adversary must never know that you sweated. We’ll cover more deposition strategies in the near future. What do you think? Let us know your thoughts below.
In summary: The defendant’s deposition is a pivotal point in the case. You must be alert for the plaintiff’s attorney testing your reactions or trying to move from the facts. You also want to demonstrate to your lawyer that you will perform well at the trial.
Medical Justice Notes: [Even in lawsuits where you are just a peripheral defendant, you will likely be deposed before potential dismissal. Do not extract defeat from the jaws of victory. Be careful during depositions. Be calm. Be respectful. Take your time.]
Medical Justice provides consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. We also provide counsel specific to COVID-19. If you are navigating a medico-legal obstacle, visit our booking page to schedule a consultation – or use the tool shared below.
“Can Medical Justice solve my problem?” Click here to review recent consultations…
all. Here’s a sample of typical recent consultation discussions…
- Former employee stole patient list. Now a competitor…
- Patient suing doctor in small claims court…
- Just received board complaint…
- Allegations of sexual harassment by employee…
- Patient filed police complaint doctor inappropriately touched her…
- DEA showed up to my office…
- Patient “extorting” me. “Pay me or I’ll slam you online.”
- My carrier wants me to settle. My case is fully defensible…
- My patient is demanding an unwarranted refund…
- How do I safely terminate doctor-patient relationship?
- How to avoid reporting to Data Bank…
- I want my day in court. But don’t want to risk my nest egg…
- Hospital wants to fire me…
- Sham peer review inappropriately limiting privileges…
- Can I safely use stem cells in my practice?
- Patient’s results are not what was expected…
- Just received request for medical records from an attorney…
- Just received notice of intent to sue…
- Just received summons for meritless case…
- Safely responding to negative online reviews…
We challenge you to supply us with a medico-legal obstacle we haven’t seen before. Know you are in good hands. Schedule your consultation below – or click here to visit our booking page.
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Jeffrey Segal, MD, JD
Chief Executive Officer and Founder
Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.
Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.
Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.
In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.
Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. Byrd Adatto was selected as a Best Law Firm in the 2021 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.
Answers should be as short as possible. If possible with a yes, no or I don’t understand. I have had attorney’s ask the same question 4 times, trying to get an answer which could not be given to the question asked. I answered the same way 4 times. The lawyer was getting frustrated. The point about questions being asked, being misleading have to be dealt with first, before answering the rest of the question. This requires critical listening to what is being asked. So in the case sited above when the attorney phrased this question regarding bleeding or a critically low blood value, the answer would be, that there was no evidence at that time, of bleeding, and that it was not an abnormally low value it was a low normal value. As far as the physician’s attorney, all physicians need to be instructed to take a deep breath before answering a question, think about the answer, and give their attorney time to react, respond and object. There are times when an objection might be called for, but physicians jump the gun as in the case noted. This is the physician’s fault, and their attorney needed to be prepping the physician more completely.
At the end of the day, when a physician forces the plaintiff’s attorney to work at getting the questions into small bites, it makes things go faster. Some attorney’s are woefully unprepared, or are asking long winded questions to go on a fishing expedition. Our job as physicians and deponents is to frustrate the unprepared attorney into asking manageable questions that can be answered, and to ask attorneys with long winded questions to clarify. This annoys attorney’s no end, but it is the mark of an experienced physician deponent that knows how to respond to ambiguous questions. Unfortunately how to be a deponent is not something that is taught in medical school. Given the number of lawsuits against physicians that should be a required course.
One question that I’d like to ask:
How have malpractice suits faired, now with physicians being employed 90% of the time by hospitals, compared to when 90% of physicians were independent practitioners, 20 years ago?
In the past, hospitals looked to separate themselves from independent physicians in malpractice cases and worked against the physician’s interests in some cases. Now with both entities, conjoined, is this any different? Is is still recommended that physicians who are employed, engage their own legal counsel in a malpractice case? Are physician’s recommended to have their own separate malpractice insurance with tail coverage, if they are employees of the hospital? Does hospital malpractice tail coverage, cover physicians who have left the employ of a hospital either due to change of jobs or retirement?
Very helpful information! Definitely need to be taught how to handle these types of situations. Thank you for this article
By the time you are on the witness chair in an action against your concluded treatment, you have already “lost.”
You only have the “opportunity” to make it worse. Any fast or facile answer is a mistake.
Michael M. Rosenblatt, DPM
These tips are one of the MANY benefits of eMerit and Medical Justice. I have benefited from these pearls greatly.