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This 297 page book in PDF form describes practical risk management strategies to prevent medical malpractice claims, defend them or cushion their financial impact.  The book draws its advice from the insights of attorneys and others who have been battle-tested in the arena of medical malpractice defense.

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How A Medical Malpractice Defendant Can Assist Counsel in Disproving A Patient’s Claim of Medical Negligence.

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HOW A MEDICAL MALPRACTICE DEFENDANT CAN PREPARE TO TESTIFY EFFECTIVELY AT DEPOSITION

By: Nadine Nasser Donovan, Esq.

INTRODUCTION

Proper preparation for your medical malpractice defendant deposition is key to testifying effectively.  The deposition of the medical malpractice defendant is an important moment in a medical malpractice case. Everyone in the room: all the attorneys, and even the claims adjuster, will be assessing how you come across as a witness. Are you likeable? Are you able to defend the care you provided? Are you able to stay calm under the pressure of litigation?   How you perform at your medical malpractice deposition will often be the basis for decisions about whether to settle the case or take it to trial. If the case goes to trial, you will be held to what you said at deposition.   Opposing counsel will use your deposition testimony as a basis for your cross-examination at your malpractice trial.

You only have this one opportunity to testify well at your deposition—there are no do-overs.   The following are some specific ways you, as a medical malpractice defendant, can prepare to be an effective witness on your own behalf at deposition.

Understand the Deposition Context

Do not be flustered by deposition questions that you think are irrelevant or off track. Your deposition is part of the discovery process. Attorneys have great latitude to investigate the case in the discovery stage. This means you can be asked a wide variety of questions at deposition that you would not be asked at trial.

Go Over Your CV Beforehand And Be Ready To Discuss Your Credentials

This does not merely entail going over your credentials. Be ready to “connect the dots” for the layperson listener about why you were well qualified to care for the patient at the time in question. Be ready to explain the extent of your training and education in the relevant medical issue, and/or your familiarity with the patient’s symptoms.

Take the time to approximate the extent of your experience as of the time you cared for the patient. Be ready to discuss how many times you performed the procedure in question, prescribed the medication at issue, or treated the same or similar condition

Study The Facts Of Your Care Of The Patient

Review all entries you made in the record, as well as all medical information you knew/had access to at the time you cared for the patient.

Be ready to explain the where, what, when, how, and why of your care. Practice explaining what you did and why—out loud. Prepare these explanations with the lay person in mind, using words that laypeople can understand.

Know The Extent Of The Claims Against You:

Be aware of what plaintiff is saying you should have done/not done (negligent acts/omissions). Learn what tests/procedures/discussions/referrals plaintiff is saying you should have ordered.   Review the opinions of plaintiff’s experts.

Know what specific claims the plaintiff is leveling against you:

  • Straight negligence?
  • Informed consent?
  • Breach of contract?
  • Loss of chance?
  • Wrongful death?

Knowing this information is very useful for a medical malpractice defendant, as it allows the defendant to anticipate areas of inquiry and consider how to address these questions in a clear and thorough manner.

Prepare For Your Deposition With Counsel

Make the time to have a meaningful meeting with defense counsel to prepare for your deposition. Have counsel subject you to rigorous cross-examination. This is particularly helpful in addressing areas of vulnerability. Go over how you will testify in response to allegations. Discuss expert opinions and how your testimony fits into theme of case.

Find Out The Logistics Of Your Deposition

Make sure you know where and when your deposition will take place, how long it is likely to take, and whether you need to bring anything with you. Find out from counsel who is likely to be there. Be prepared that the following people could be at your deposition:

  • All attorneys in the case
  • Plaintiff/injured party and family member
  • Insurance adjuster
  • Expert witnesses
  • Other interested parties

Defense counsel can also give you insight on the deposition taking style of opposing counsel—for example whether opposing counsel has an aggressive style, likes to get right to the point, or is long winded and drags out the deposition.

Obtain Additional Testifying Training Beyond What Your Lawyer Will Provide

Your deposition is often a make or break moment in the case. You only get one chance to do well at your deposition and need to perform optimally. Testifying skills are very different from medical skills, and can be developed and improved.  See malpracticetestifyingtraining.com for helpful resources.

About the Author

nadine_thumbnail_150Nadine Nasser Donovan, Esq. is a senior consultant/trainer for SEAK, Inc. She spent 18 years in the defense of medical professionals in medical malpractice actions and before medical licensing boards. She is also a Legal Writing Instructor at Boston University School of Law, and an Adjunct Professor at New England Law/Boston, where she teaches in the areas of medical malpractice and hospital law. She can be reached at nadine@seak.com, or (617) 431-3390.

Nadine Donovan, Esq.