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10 Points to Remember for a Deposition

by Madeleine Weldon-Linne, JD, and Robert P. Vogt, JD, CCHP

You just found out. It may have been by a phone call, a letter or even a subpoena. Someone wants to put you in front of a court reporter and ask you questions under oath. What are they going to ask?

While there is no way to predict the exact questions that you will be asked in a deposition, several common interrogation areas often arise. Being familiar with these areas can help you be more prepared, reduce your stress level and aid in making you a better witness for yourself, your employer and your coworkers.

1. The factual basis of your testimony may be explored; i.e., do you remember the patient independently or is the extent of your knowledge of this patient reflected solely in your medical chart entries? It is rare that you will remember nothing about a patient. However, if you have no recollection of a particular patient or of your involvement with a patient, keep in mind that your testimony about that patient may be limited to what your notes say.

2. You will be asked about what materials you reviewed before the deposition. Correspondence from your attorney is privileged, but be prepared to state what records and documents you reviewed. If you did research about a medical condition or treatment, you may be asked about that research and why you did it.

3. Your educational background, training and experience will be examined. Having a CV may reduce the need to go over your entire background. This questioning is intended to assess how good a witness you may be and how much influence you may have over the jury.

4. Your contact and conversations with other professionals will be addressed. You may be asked about conversations with codefendants, superiors, consultants, experts, employees and anyone else who you may have spoken to regarding the patient. This questioning is sometimes used to learn whether you obtained information from another source, whether complaints were shared and whether both participants to a conversation recall the same thing.

5. You might be asked what you regard as the “authoritative” literature or standards in the field. You may be asked about the standards of specific organizations (e.g., NCCHC), particular texts or authors (e.g., Clinical Practice in Correctional Medicine), or the policies and procedures adopted by governmental agencies (e.g., a state’s department of corrections). These can be dangerous questions because each of these examples involves hundreds of pages of materials. Although many sources are helpful and reliable in explaining a particular medical topic, be careful about what you identify as being wholly authoritative.

6. You may be asked about the standard of care. Be prepared to describe what the standard of care is generally and what it was in connection with the particular care and treatment that you provided. Keep in mind your limitations. A nurse, for example, generally cannot testify as to the standard of care for a physician. Try to stay within the confines of your own profession.

7. You may be asked about previous lawsuits in which you were involved and prior depositions that you have given. Be prepared to explain the facts of any prior cases and how those cases are, and are not, similar to the current case. You should review your prior deposition transcript (if you can) to ensure that your current testimony does not conflict.

8. You will be asked about every entry that you made in the patient’s chart. Know where your name appears, be familiar with what you wrote and know how the chart entries preceding and following yours impacted the patient’s care and overall condition. You must be able to decipher your handwriting and the handwriting of other staff members.

9. You may be asked about the chart entries of other staff members. This can be very uncomfortable because your answers may implicate your coworkers. Be able to read the writing of others and be familiar, in general, with the patient’s treatment course and objectives. Avoid interpreting or speculating on other professionals’ chart entries. Always keep in mind that often there are several approaches that can be used in treating a particular medical condition or problem, and simply because you followed one approach does not mean that another professional’s approach was wrong.

10. You may be asked to comment on the testimony of another witness or about whether another professional’s care complied with the standard of care. This is also very difficult because you may not have a full grasp of what the other professional was thinking or the priority of the other professional’s concerns. Be prepared to recognize limits to your testimony. You do not have to hold opinions on everyone or everything.

A bonus tip: Always remember that in the world of depositions, the golden rule is “preparation, preparation, preparation.”

— About the authors: Madeleine Weldon-Linne, JD, and Robert P. Vogt, JD, CCHP, are partners with Weldon-Linne & Vogt, a Chicago-based law firm that defends health care professionals and institutions in Illinois, Indiana and Wisconsin. Contact them at mweldonlinne@wlv-online.com or bvogt@wlv-online.com.

[This article first appeared in the Winter 2008 issue of CorrectCare.]