Medical Malpractice Depositions

A few doctors do it well. Some doctors do it “well enough.” Many do it poorly. But we all wish we didn’t have to do it at all. Of course, we are talking about depositions. Medical malpractice depositions, specifically. 

Why is this important? Many medical malpractice cases don’t go to trial. But most defendants (doctors) are deposed. Knowing how to comport yourself during a deposition is critical for a simple reason: A strong deposition often deters an opposing attorney from proceeding onward. A poor deposition will give your opponents an edge in the event your case is tried.

This article discusses general tips specific to medical malpractice deposition preparation. 

We will equip you with the knowledge required to prevail. Nailing your deposition is a tall order. We’ve seen doctors struggle to get this right. And doctors are smart people. Given the stakes, it is critical you do nail it. The keys to success are preparation and the counsel of seasoned experts. 

Let’s start with definitions. What is a medical malpractice deposition?

Your deposition is your oral testimony, supplied under oath. It is memorialized by a court reporter, word for word (hopefully). The opposing attorney asks you questions about the case. You supply answers. That resulting narrative is your deposition. 

Some fast facts: 

• A judge and jury are not present during your deposition. Those elements come into play only if the case moves to trial. 
• The audience for a malpractice deposition is typically limited to the attorneys, the court reporter, and the deposed. 

Why must I supply a medical malpractice deposition? 

To proceed on the trial, each side must acquire information about the other. For the purposes of this piece, we’re focusing on why your opponents are interested in your deposition. 

1. First and foremost, the opposing attorney wants to learn what you know about the case. He can’t do his job unless he gets inside of your head. Therefore, he must collect facts from you. 
2. Second, the opposing attorney wants to hear your story, and then lock you into that narrative. Locking you into a narrative reduces the risk he or his client will be surprised at trial. (For our more seasoned doctors, remember the original Perry Mason TV show. There was always a surprise presented at trial. That rarely happens in real life.) This is one of many reasons why it is critical you get your deposition right round one. There are no do-overs. 
3. Third, he’s sizing you up. He wants to diagnose your “stage presence.” The opposing attorney is thinking: “How will this individual perform in the courtroom?” Your language, mannerisms, and appearance all affect the jury’s perceptions. A defendant who is collected, cool, and confident discourages the opposition. He will likely be perceived favorably by the jury. Conversely, a paper bag will be blown up and torn apart. 

Ultimately, his goal is to create a record of you (the doctor) making a mistake. If the opposing attorney catches you in a misstatement, he’ll use that record to paint you as untrustworthy.  

A strong deposition shakes the opposing attorney’s confidence he has a great case. Flubbing your deposition will make your life hell and your own attorney’s job much harder. We are equipped to help doctors nail their depositions.

16 Fast Rules Doctors Should Memorize Before a Deposition

1. Don’t speculate.
2. Don’t argue. More eloquently, don’t be an ass.
3. Don’t rush.
4. Don’t lie.
5. Don’t crack jokes.

We’ve distilled the remainder of the piece into eleven key points. Internalize these strategies in advance and discuss them with your attorney to determine how they can enhance your existing strategies.

6. Resist the urge to “explain yourself” during your deposition.

Supply only the facts as you know them. We mention this point first because it is critical. A long-winded explanation may contain hearsay and contradictions. The opposing attorney will be listening closely for language he can exploit to his client’s benefit. Your greatest defense against a sharp voice is concise, truthful answers. 

We know you want nothing more than to tell “your side” of the story. But you must suppress that urge. There will be a time to tell your side of the story—but your deposition is almost never the best time to do so. And if you supply a solid deposition, your case may not go to trial. 

7. If you don’t know the answer to a question, do not guess.

The opposing attorney will likely ask you a question that no amount of preparation prepared you to answer. Why would he do such a thing? Because he wants you to guess. You’ve likely heard someone in your life use the phrase: “I’m going to hazard a guess.” Take our advice. Don’t guess. It’s a hazard. 

No one wants to appear ignorant—especially during a deposition. But if you don’t know the answer to a question, it is often best to answer: “I do not know.” Do not supply an explanation. 

8. Keep your emotions in equilibrium.

If the opposing attorney can dress you in a clown suit, he’ll do so. Do not let the opposing attorney get under your skin. He wants to make you angry and excited because angry, excited deponents make mistakes.  

Likewise, if you become too at ease with the proceedings, you may become complacent and act a little “too helpful.” Don’t fraternize. 

9. Don’t rush.

We are trained to economize our speech, but that can work against us during a medical malpractice deposition. Answer questions in a timely, direct manner, but do not allow the opposing attorney to accelerate your speech. Speak concisely, but temperately.  

10. Don’t supply information that you have not prepared.

And if the opposing attorney asks a question that suggests he is ignorant of some key point, don’t enlighten him. In a worst-case scenario, the attorney is feigning ignorance, hoping you’ll divulge something he can use against you. In a best-case scenario, the attorney is truly ignorant of a key fact. Don’t be the light at the end of his mental tunnel. Let him wander in the darkness. If he trips, it will likely be to your benefit. 

11. If a question can be answered in one word (yes or no), answer in one word.

An example: “Did you eat lunch with Ms. Doe last week?”  

• A bad answer: “No, I did not eat lunch with Ms. Doe last week.” 

Why is this a bad answer? It suggests you could have had some contact with Ms. Doe. You did not eat lunch with her last week, but you may have contacted her the week before. You’ve left the door open to more probing questions. 

• A better answer: “No.”  

Why is this a better answer? No means no. The opposing attorney can still probe you, but your answer has no implicit clues. 

What are the components of a “best” response? A good response is concise, factually correct, and has been sufficiently rehearsed with your own attorney. 

That said, what happens when the opposing attorney asks questions that cannot be answered so simply? 

The deponent is safest when he supplies specific answers to specific questions. When the opposing attorney asks an open-ended question, respond as follows: “That’s a complicated matter. Can you please be more specific?” 

12. Don’t speak until the questioner has finished supplying his question. 

Why? You cannot supply a “good” answer to an unfinished question. And if your own attorney intends to object, he loses that power shortly after your vocal cords contract. A delayed answer may be a good answer – but a rushed answer is almost always going to be a bad answer. 

13. Don’t estimate time or distance.

You are not a yardstick, nor a clock. This falls in line with advice we’ve repeated several times already: Don’t speculate. Our recollections of past events fade with time. This effect is often magnified when we are recollecting periods of time or instances of distance. An examiner on a headhunt can turn a poor estimation (such as the amount of time spent examining a patient) into a bad outcome.  

14. Never consider the strategic implications of lying.

Just tell the truth. The opposing attorney is already hunting for mistakes and inconsistencies. Lies are easier to exploit than facts. Honesty is the best policy. 

15. If the opposing attorney asks a question you don’t understand, ask him to rephrase it.

While you may be competent to answer the question, a poorly phrased question is typically a wolf in sheep’s clothing. Ask the attorney to be more specific. 

16. If your own attorney begins speaking for any reason, cease talking. Embrace silence. 

Your attorney is looking for ways to increase the likelihood your deposition will serve your case, not hinder it. Trust your attorney’s judgment and be prepared to pivot. Such instances will likely have been rehearsed in advance. One universal code is your attorney asking if you need a bathroom break after such a long deposition. This is code for your attorney wanting to speak with you privately and interrupt the flow of the deposition. He has something he needs to tell you. Time to hit the loo.

We Know This is Serious. And We Know the Stakes.

How do we know? Because we’ve been there ourselves.  

A little background: Our Founder and CEO, Jeff Segal, MD, JD was sued for a meritless reason while practicing neurosurgery. The case was eventually dismissed, but the experience of being sued for a frivolous reason galvanized him. Dr. Segal created Medical Justice – an organization dedicated to protecting doctors from medico-legal threats. And we’ve been at it since 2001.

Your deposition will be intimidating. It will be challenging. But it doesn’t have to be insurmountable. Let us walk alongside you. 

If you are preparing for a deposition (or navigating any other medico-legal threat), schedule a consultation with one of our medico-legal experts, led by our Founder and CEO, Jeff Segal, MD, JD. Every case is different, but solid counsel will come from someone who works with others in your shoes. Visit our booking page to schedule a consultation—or use the tool below to get in touch.

Please note that this consultation topic falls outside the scope of the Medical Justice membership benefits, and thus is subject to an hourly fee.