IT’S NEVER “JUST” A DEPOSITION
By: Thomas M. Harvick
At one time or another, every physician is served a subpoena for deposition requesting their testimony as a treating physician of the plaintiff. The subpoena looks harmless enough, especially when the physician being served is not a named Defendant in the lawsuit. Generally, the case will involve a fall-down or auto accident and the plaintiff’s lawyer is seeking the physician’s testimony about the plaintiff’s injuries. For a physician, this might seem like a piece of cake, but hidden dangers might lurk when offering testimony discussing care administered to a patient.
When a subpoena crosses a physician’s desk, the physician may consider retaining a lawyer. Often, lawsuits allege complex and convoluted situations, and depositions are official court proceedings with numerous consequences. An attorney in the physician’s corner can assist in locating and reviewing all of the relevant medical records and the plaintiff’s Complaint, as well as preparing the physician for the likely areas of questioning.
It’s important for physicians not to underestimate the ramifications of their testimony. Without an attorney, a physician might answer questions that unwittingly put themselves in danger of being added as a Defendant. Those “innocent” questions can be framed to put the physician’s treatment at issue giving rise to the new “Amended” Complaint adding them as a Defendant. Frequently during depositions, physicians will unintentionally criticize prior doctors and their treatment, usually without knowing all facts and circumstances facing the other physician when they treated the plaintiff. If the case involves malpractice allegations against a doctor, those “helpful” off-hand remarks could unfairly hinder the defense of that physician. If called to testify at trial, the deposition testimony could put the physician in a very embarrassing and uncomfortable position.
A deposition is not the physician’s “ballpark” where they’re comfortable or routinely in charge. Generally, physicians lack the experience or training to go it alone and run the risk of putting themselves or other physicians in jeopardy. More often than not, the attorney is experienced in asking all of the right questions at deposition to prove various issues in the case. That lawyer also is familiar with the medical issues involved by his own review or by the assistance received from physicians and other health professionals who work as medical-legal consultants.
Consulting with an experienced attorney prior to offering testimony will allow the treating physician to testify confidently in a deposition. Not only will the doctor be prepared on the medical issues, but he or she will also be protected from improper or unfair questions. Under Illinois court rules governing depositions, many questions do not have to be answered for numerous legitimate reasons. An attorney’s knowledge of evidentiary rules can help a physician navigate this seemingly innocent ordeal. Without representation, many unfair/improper questions may be asked and answered unnecessarily. By answering proper questions about care and treatment, the physician can support the patient while avoiding “standard of care” questions directed at the physician’s care. Staying neutral on such questions require both Plaintiffs and Defendants to retain their own “expert” witnesses to prove or defend those issues.
When required to give a deposition, it’s to everyone’s benefit if the physician is represented by an attorney. Many insurance companies or hospital risk management programs provide deposition representation to assist physicians through this legal process and to help protect and prevent the physician from commenting upon issues outside of his or her treatment. Utilizing these programs can avoid turning that auto or fall-down case into a malpractice case.