Tucker Poling, JD
Vice President, Claims and General Counsel

Often, the most important aspect of pre-trial litigation is deposition testimony. Depositions occur long before trial and require you to sit down with a court reporter, your attorney, and the opposing attorney to answer questions posed by the opposing attorney under oath and recorded by transcript and video. In this article, I’ll discuss a few ways you can help reduce risk, both before and during the deposition.

How to Reduce Risk Before a Deposition Occurs

#1 Reduce your risk of being the defendant in the deposition by prioritizing “bedside manner.”

Engaged, attentive, open, caring, and honest patient interactions tend to improve results and reduce the risk of malpractice claims even when the patient suffers an adverse treatment outcome.

#2 Lay the foundation for strong deposition testimony through attentive and savvy charting.

The fewer gaps, inaccuracies, and errors in the patient’s chart you need to explain in your deposition testimony, the better. In your approach to charting, consider the following question: What story will this patient’s chart tell about my care? Ideally, that story should be of an attentive professional who provided good care and made reasonable decisions under the circumstances.

Perfect charting isn’t a reasonable expectation, and the need to focus on other clinical care priorities may limit your ability to document as thoroughly as you would prefer. However, paying attention to the following aspects of charting will help you accurately tell the story of your care before an adverse outcome occurs:

• Document communication with patients and between providers.

• Document informed consent. Jurors want to see that you discussed the risks and benefits of a procedure with the patient and that you meaningfully collaborated in making key decisions together. Standardized signed informed consent forms are important, but make sure to document the oral informed consent discussion you had with the patient through a descriptive note in the patient’s chart in your own words.

• Reduce time gaps between care and charting. If an adverse event in the patient’s care occurs during such a gap, the late charting can raise questions of credibility and accuracy. You don’t want a plaintiff’s attorney filling those gaps in the story of your care.

• Explain care transitions such as hand-offs to other providers, including who will undertake the next steps in the care plan. Document communication about those next steps and how any outstanding orders or test results will be handled.

• Pay attention to “click-through” entries in the chart that duplicate charting from prior treatment encounters. They often result in inaccurate or confusing documentation.

• Similarly, be careful with cookie-cutter “disclaimer” language in notes. Although mentioning that the note is a summary and not a full recitation of the patient interaction can sometimes be an effective tactic in insulating yourself from the argument that “if it wasn’t charted, it didn’t happen”, if the identical cookie-cutter disclaimer language is included in almost every note in the chart, this tactic has the potential to backfire. Your charting time and energy are better used when focusing on the charting tips discussed above.

#3 Be prepared.

Don’t deceive yourself into believing that your intelligence, education, and expertise will be sufficient to successfully get you through a deposition. Take it seriously and understand that you must dedicate serious time and effort to prepare. Pointers for successful deposition preparation include:  

• Be a good teacher. Before your deposition, help your attorney, the KAMMCO Medical Liability Analyst, and the other defense team members understand the medical issues and considerations relevant to the patient’s clinical course. Share your ideas and insights about medical issues or literature your attorney should explore and research further.

• Be a good student. Depositions are unlike any other type of communication you’ve likely experienced. The strategies and tactics that lead to effective deposition testimony are sometimes counterintuitive, and KAMMCO only hires defense attorneys who know the ropes. Allow your attorney’s expertise to help you provide effective deposition testimony by following your attorney’s advice.

• Be painfully honest with your attorney. The scope of deposition questioning is much broader than that of admissible evidence at trial. Not only will you be asked, in detail, about every aspect of the clinical care you’ve ever given the patient, but you’ll also be questioned about your educational, professional, and personal background. Nearly every case involves some facts, events, or circumstances that are bad for the defense, and nearly every defendant has a skeleton or two in the closet that may be a source of embarrassment. Tell your attorney about the aspects of the clinical care and your problematic or uncomfortable background well before the deposition. This allows them to use their expertise to help prepare and protect you.

• Know the records. If you’ve taken the time to fully acquaint yourself with the records and issues in your case, you’re more likely to inspire confidence in the jurors who may eventually be watching portions of your deposition testimony at trial.

How to Reduce Risk During a Deposition

#1 Don’t treat it like a conversation.

The rules of regular human communication don’t apply to depositions. In a normal conversation, if I were to ask you, “Did you take any vacation this year?” an appropriate response might be something like, “Yes, my family and I went to the Bahamas – I think the place we stayed was near a town called Governors Harbour – the beaches were fantastic, the snorkeling was great, and my kids didn’t even miss their screens for a few hours!”  But in a deposition, the appropriate response is “yes.” Then patiently wait through the uncomfortable pause until the questioner asks another question. In a deposition, your only job is honestly answering the specific question.

• Don’t elaborate beyond the specific answer to the specific question.

• Don’t assume. Don’t read anything into the question that wasn’t stated in the question, and don’t fill gaps in the question because you think you know what the questioner is “getting at.”

• If you don’t understand the question precisely, ask for clarification.

• Don’t guess or speculate. It’s not your job in a deposition to have all the answers. If you don’t know, say “I don’t know” and leave it at that.

#2 Follow the deposition rule of three.

In providing deposition testimony, remind yourself of the following mantra as the elemental foundation of your approach to the deposition: (1) listen, (2) understand, and (3) answer. Listen to the question. Make sure you understand the specific question. Pause to consider the question or ask for clarification if needed. Then, if you understand the specific question and know the specific answer, answer the question (and only the question) truthfully.

#3 Be pleasant and professional despite the aggravating circumstances.

In the deposition, stay above the fray. Follow the rules, answer the questions, and present yourself in a polite, professional, accurate, attentive, competent, and credible manner at all times despite the plaintiff’s attorney’s attitude or conduct. You don’t get bonus points for winning arguments or delivering clever digs at the plaintiff’s attorney. Keep your focus on the ultimate goal: persuading a jury. Jurors expect healthcare providers to be consummate and caring professionals. And they usually don’t like witnesses who appear arrogant, flippant, or rude. If you lose your professional composure, you can bet that’s the 30 seconds of the deposition that the plaintiff’s attorney will show the jury at trial.

#4 Be patient.

Good deposition witnesses exhibit restraint during the deposition and focus on the long game. Your time to respond fully to the allegations, fully tell your side of the story, and persuade the jurors that you provided reasonable care will be at trial when your attorney puts you on the witness stand. You and your attorney have the floor and can control the narrative.

#5 Stick to your guns.

The plaintiff’s attorney asking you questions in your deposition has an agenda – they know the answers they want to elicit from you to fit their game plan. When your answers don’t fit their narrative, they’ll often employ the interrogation tactic of asking the same question multiple times in slightly different ways. They’ll also commonly put on a show of acting surprised, feigning confusion or disbelief, or pausing for a long time after your answer while continuing to look at you. These are verbal and non-verbal tactics to gaslight you and coax you into providing a different answer by causing you to start doubting yourself or feeling the need to explain yourself further to their satisfaction. Resist this urge. If they ask the same question five times, politely give them the same honest and concise answer five times whether they like it or not.

#6 Beware of overly general “rule” questions.

Under Kansas tort law, a physician must practice within the standard of care. The standard of care is the range of reasonable care that a similarly situated healthcare provider would provide under the same or similar circumstances. No more, no less. That’s the only “rule” that the law applies to measure the defendant’s conduct in the context of a medical malpractice lawsuit. However, the plaintiff’s attorneys often try to get the defendant to agree to additional or different rules during the deposition by asking deceptively simple but overly general questions that ask the defendant to agree to broad “safety” rules that a healthcare provider should follow.

For example, the plaintiff’s attorneys often employ the inappropriate tactics described in the book Reptile: The 2009 Manual of the Plaintiff’s Revolution, in which a plaintiff’s attorney and jury consultant described strategies and tactics to manipulate juries into applying different standards of care than the law applies.[1] 

Using this approach, a plaintiff’s attorney might ask something similar to the following question: “Do you agree that patient safety should be your priority in caring for a patient?” Effective deposition witnesses avoid agreeing to overly broad statements or vague categorical rules. Instead, ask for clarification or give a qualified answer that returns the focus to the case’s specific circumstances. Appropriate and honest responses to this vague question might include:

• “That is a broad question. Can you please be more specific?

• “Patient safety is often one among many important considerations in taking care of a patient.”

• “I prioritize addressing the patient’s needs in front of me at the time, so it depends on the case’s specific circumstances.”

Learn more about depositions by attending this year’s Loss Prevention program.

Depositions are the topic of this year’s Loss Prevention series, at which you can hear more about depositions from Don Gribble, one of the most experienced medical malpractice defense attorneys in Kansas.

For more information on the Loss Prevention program, go to the information page at https://www.kammco.com/risk-management/lp2023/.

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[1] The Kansas Supreme Court discussed why these “Reptile” tactics are not appropriate under Kansas law on pages 22-29 of the 2018 Biglow v. Eidenberg decision.