Preparation is Essential to Performing As an Effective Witness in a Deposition

Your worst nightmare has come true: You have been subpoenaed to give a deposition as part of a lawsuit. The patient is a 24-year-old woman who came to your clinic complaining of fatigue and aching in her joints. Her temperature was 102° F, her lungs were clear, and there was no cough or evidence of meningitis. You sent her home, telling her to be alert to problems such as vomiting. Subsequently, the woman developed meningitis and now claims you didn’t diagnose her properly when you first saw her in the clinic. 

It’s not surprising that this case involved a diagnosis: the study Nurse Practitioner 2012 Liability Update: A Three-part Approach found that diagnosis-related allegations are the most common reasons for malpractice claims, with an average paid indemnity for injury of over $250,000. That’s of little comfort to you, however, as you face your first experience in giving a deposition. How can you cope with the knots in your stomach and mental anxiety? 

When you know you will be examining a patient who has a comorbid condition unfamiliar to you, you prepare beforehand. For example, you might not have seen a patient with hemophilia in your practice before, so you look up the disease online to gain knowledge. Or, you might consult with a colleague who has experience in this area. 

Likewise, you need to prepare for a deposition so you can feel confident in your ability to be an effective witness. If you aren’t well prepared for your deposition, the plaintiff’s (opposing) attorney could easily challenge the legal defense your attorney has crafted for you. In fact, a poor showing at a deposition is the most common reason for an unsuccessful defense. You can take several steps to prepare yourself, beginning with understanding the nature of a deposition. 

What Is A Deposition?

A deposition is a legal proceeding for gathering information from someone named in a lawsuit or who is a witness in a lawsuit. Depositions occur in the discovery phase of a lawsuit – the investigative process that takes place after the complaint is filed and before the trial. 

Depositions are key in a jury trial. Juries in medical malpractice trials want to hear the defendant describe what happened. Furthermore, during the trial you will be held to the facts you gave at your deposition. Any discrepancies will not reflect well on you or your defense. 

During a deposition, which usually takes place in the plaintiff attorney’s office, you will testify under oath. A court reporter will record your testimony verbatim, and you may be videotaped.

What To Do If You Are Subpoenaed

Be sure to notify NSO, your professional liability insurance provider, that you have received a subpoena to provide a deposition. You should also notify your supervisor or practice partners, depending on your clinical setting.

What Is The Plaintiff Attorney’s Goal?

The plaintiff’s attorney will try to restrict you to one version of the incident or facts so your trial testimony is consistent with what you said during the deposition. The plaintiff’s attorney may also try to maneuver you into testifying inconsistently by rattling you or undermining your credibility, while assessing your strengths and weaknesses as a witness. For example, the attorney may point out inconsistencies in your testimony when compared to other witnesses. It’s important to not take the “bait,” but rather remain calm. You’ll learn more about how to conduct yourself at the preparation meeting with your attorney assigned to you by CNA, the insurance underwriting company for the NSO program.

What Should I Do Before The Preparation Meeting?

The most important step to prepare for the deposition is to meet with your assigned attorney. Usually, the preparation meeting is held about a month ahead of the deposition and follows at least one face-to-face meeting where you learn about the details of the lawsuit, including the specific allegations being made. 

Before the preparation meeting with your attorney, thoroughly review the medical record. Consider all aspects, including your notes, diagnosis, and the treatment plan. It may help to develop a timeline showing the chronology of what happened each time you saw the patient. Determine how what you have found compares to the allegations. To the best of your recollection, discuss with your attorney what you recall of the incident. If there are problems, you’ll want to bring them to your attorney’s attention.

What Happens During The Preparation Meeting?

Your attorney will work with you to create a “theme” for your defense. For example, if you failed to document that you checked for meningeal irritation in the meningitis example, the theme might be that even though the paperwork may have suffered, care to the patient did not. You will want to keep that theme in mind at all times during the deposition so the plaintiff’s attorney doesn’t pressure you into making statements that don’t support your case. 

This meeting is also a time when your attorney can help prepare you by discussing questions the plaintiff’s attorney will likely ask and your possible responses. Finally, your attorney will review guidelines you should adhere to when you give your deposition. Keep in mind that your role is to only answer the questions you are asked; do not explain or volunteer information. If your attorney objects, stop speaking. 

You will also meet with your attorney the day of the deposition to touch base and discuss any last-minute concerns. Your attorney will be with you through the entire deposition. Remember to dress professionally because first impressions count.

What Is A License Defense?

Another instance where you will need to prepare with an attorney is to defend yourself when someone files a complaint against your license. License defense is needed when someone (patient, patient’s family, colleague, or employer) files a complaint with a board of nursing against an APN’s license. According to the Nurse Practitioner 2012 Liability Update study, the average cost to defend such a complaint is $4,441. 

An action taken against an APN’s license differs from a professional liability claim in that it may or may not – as in the case of professional misconduct – involve allegations related to patient care. In addition, payments made as a result of a claim cover defense attorney costs, as opposed to being part of a settlement payment to a plaintiff. License protection ensures you have coverage for legal representation for defending yourself against allegations that could lead to revocation of your license.

You Are An Expert

Remember that advanced practice nurses are considered experts. To give a deposition like an expert, you must prepare like an expert. To help you better understand the deposition process, CNA, the insurance carrier for the NSO program, has created a video, Preparing for a Deposition.

What To Do In Case Of Legal Action

Here’s a summary of points to keep in mind should you become involved in a lawsuit.

• Contact NSO if you receive a subpoena to testify in a deposition or trial. Also contact your provider if you suspect there may be a lawsuit filed. 
• Don’t discuss the case with anyone except your attorney, your NSO representative, and your CNA claims consultant. 
• Don’t accept or sign any documents related to the claim from anyone without obtaining approval from your CNA claims consultant. 
• Avoid discussing, commenting upon, or taking issue with any information you receive regarding judicial or administrative proceedings. 
• Don’t admit to liability, consent to any arbitration or judgment, or agree to any settlement proposal. 
• Promptly return calls from your defense attorney and CNA claims consultant. 
• Contact your attorney or CNA claims consultant before responding to calls or emails from other parties involved in the case. 
• Report any communication you receive from the patient, patient’s attorney, or any state or federal administrative agency, licensing or regulatory authority, immediately to your CNA claims consultant.

12 Tips For Giving A Deposition

Even with proper preparation, giving a deposition is usually uncomfortable for most people. Following these tips should help.

• Listen carefully and think before you speak. Don’t be pressured into rushing a reply. 
• Speak slowly and clearly and answer courteously. 
• If you need to consult the medical record, ask. 
• If your attorney objects, stop speaking. 
• Don’t look at your attorney when a question is asked; this is your testimony. 
• If you don’t know the answer to a question, say so instead of guessing. 
• If you don’t remember something, say so. 
• If you don’t understand a question or word being used, don’t answer; ask for clarification or rephrasing. 
• Answer only the question asked. 
• Understand the theme of your case: You should know every allegation being made against you and the best responses to be made for the defense. 
• Be confident and self-assured. If you need a break or drink of water, ask for it. 
• Tell the truth.

RESOURCES

CNA, NSO. Nurse Practitioner 2012 Liability Update: A Three-part Approach

Defilippo M, Flores JR. Malpractice Claims Against Nurse Practitioners. Advance for NPs & PAs. Dec. 5, 2011

This risk management information was provided by Nurses Service Organization (NSO), www.nso.com, 1-800-247-1500. CANP endorses the individual professional liability insurance policy administered through NSO and underwritten by American Casualty Company of Reading, Pennsylvania, a CNA company. Reproduction without permission of the publisher is prohibited. For questions, send an email to service@nso.com.