Medical Justice provides free 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 free consultation – or use the tool shared below.

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. 

We continue our analysis of real-world challenges specific to deposition preparation. Each example is described from the perspective of a doctor. If you missed Part 1, catch up here. Our conversation resumes below. 

During a break in my deposition, the plaintiff’s lawyer and I were waiting outside. She commented how much she liked my shoes and we started talking about a great local outlet we both visit.  When my lawyer saw this, he was very annoyed and told me to stop. We were just talking about shopping, not the med-mal case. What’s the problem? 

As a represented party, legal ethics rules permit the plaintiff’s attorney to discuss the case with you only through your attorney. Of course, chatting about where you buy shoes is not covered under this, so this conversation was permissible. 

However, your lawyer was worried about you letting down your guard. 

We discussed the situation of the lawyer who behaves boorishly to provoke you, but there is a flip side to that coin: the overly nice lawyer. 

During the deposition you need to be on guard for a lawyer who seems to agree with everything that you say, nodding and going “Uh-huh” a lot. Of course, there is the possibility that you actually convinced her and that she will go back to their office and drop you from the case. But that possibility is miniscule compared to the likelihood that she is playing “good cop” (the “bad cop” being your own worry of what he might do) to get you to loosen up and begin to confide in her.  

Bear in mind that she represents your adversary, not your friend, and answer in that mind-set. 

Going back to the situation you described, the banter was probably genuine, but on the chance that it wasn’t, the best answer is just “Thanks. I’m trying to stay focused on the case here but when we’re done I have a great place to tell you about where you can get these at a discount.”  If it was genuine banter, you have been courteous and not burned a bridge with a lawyer who will be deciding how to handle you in the case. If it was all a ruse, you will have signaled to the lawyer that you are a focused deponent who can’t be played. 

When I was testifying the plaintiff’s attorney kept asking me the following: “Could you re-phrase that in simpler terms?”  Seriously? She probably knows the terminology better than I do!

She most certainly does understand you fully, but the more you re-phrase away from what is the ideal description, the more likely you are to begin misstating things. 

The response to this should be “Could you be more specific on what you need clarification on, please?” 

Of course, should your case go to trial, do not speak to the jury in medical jargon.  Speak as you do when you talk to a patient. Tell them what the issue is in proper terminology. Then break it down in layman’s terms.  

I couldn’t remember whether I spoke with a specific nurse in the ER (about a patient with rapid atrial fibrillation) before or after I gave a phone order – after all, it was 3 years ago. Looking at the chart didn’t “refresh my recollection.”  The plaintiff’s lawyer then asked, “Well, would you normally write an order for Cardizem without checking with the nurse what the patient’s heart rate was?” I answered “No” because that’s true – I wouldn’t. He then asked “So, is it probable that you did so in this case?” I said “Yes”, because it is. My lawyer says that was wrong. I don’t see why – that was a true answer about what I must have done. 

You can offer testimony that it is your custom and practice. But that is not this. 

This is a lawyer who just got you to fill in a blank as a likely fact – a blank you actually have no memory of. 

Your lawyer should have stopped this line of questioning by saying “My client has told you that he doesn’t remember.  Move on please.”  However, since that was not done your answer should have been, “I cannot recall these specific events. That is all that I can tell you.” 

I was sued because my patient had a rare and serious reaction to a drug I prescribed. At my deposition the lawyer asked me if I knew then what I know now would I have prescribed it? I had to say that I would not have. What could I have said to avoid giving them this “Gotcha”? 

Your attorney should have objected. 

The lawsuit is not about what you know now – it is about what you knew then.  

The issue is whether, based on what you knew or should have known at the time, did you select the proper treatment for the patient, a point that this question ignores. 

Your answer would therefore be something like this: “No. However, based on the facts that I had at that time about this drug and the rarity of this reaction and the severity of my patient’s condition, the prescription at that time was appropriate.” 

At my deposition, the plaintiff’s lawyer handed me a copy of some pages from the chart to review as part of answering his next question.  Before I could answer, my lawyer took them out of my hand and said, “Don’t answer based on these.” What’s the problem? They were just copies of the chart. 

They may well have been – or maybe not… 

The only version of the chart that you should use at your deposition is the certified copy that will also be presented as evidence at the trial. 

Your testimony cannot be used to shepherd in a version that has not been certified as reflecting the actual record and may, in fact, have been altered.

After my deposition, I just wanted to put it all behind me.  When I got the transcript it was very long and so I just signed it and sent it back. I realize that I shouldn’t have done that and I’d like to have a chance to review it now.  Can I do so?

No. 

You waived your chance to do this. Whatever is in the record is now considered validated and may be used at trial. 

Hopefully, the stenographer got everything right. But even the best ones are not always conversant in medical terminology or can leave out a critical word like “not.”  

Your adversary is hoping that you will be too tired to read the transcribed deposition. But remember that reviewing the transcript is an essential act of self-interest. Once you sign what it says, it will be interpreted as your actual words. 

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 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 free 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 free consultation – or use the tool shared below.

Learn how Medical Justice can protect you from medico-legal mayhem… 

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 over 50 combined years of 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.