Written on behalf of the ACNM Professional Liability Section
Starting out in practice, none of us probably devoted a great deal of thought to the possibility of being deposed as part of a malpractice action. Unfortunately, however, it is inevitable that some of us will find ourselves in that very seat at some point in our career. While the entire process can be incredibly stressful, the deposition is a pinnacle point anxiety inducer. Though it can never be stress-free, there are some tips that may be useful in helping prepare you to get through the process with as little angst as possible.
- Be physically prepared: Try to get to bed early the evening before, even if your sleep will be fitful. Additionally, be sure to eat a meal prior to the start (whether that is breakfast for a morning start or lunch for an afternoon start). The last thing you need is to be hypoglycemic with subsequent confusion when you need to be at your mental best.
- Be mentally prepared: Though you will have likely looked at all of the case materials you have been given to review prior to the deposition (the patient chart, your documentation, etc.) numerous times, review it again in the days prior to the deposition to ensure it is fresh in your mind. Sometimes what seems like the smallest of details will receive an inordinate amount of focus during questioning at deposition.
- Responding to questions is not an exercise in speed: Take your time responding to every question. Sometimes it feels as though there is a rapid fire coming at you (because there may well be); it is your prerogative to take the time you need to sufficiently respond to a question. Remember that the responses you give during a deposition will be brought up during the actual trial. The last thing you want is to be faced with statements you made at deposition that conflict with your responses at trial.
- You may be asked the same question in numerous ways: Attorneys often make an intentional effort during their questioning to see if a witness will change their response if presented a scenario in a variety of ways. Do not let it fluster you; take your time and respond thoughtfully each time the question is asked in a different way. The attorney representing you may, at some point after the same question is posed in different ways, object verbally by stating “asked and answered”, which is their acknowledgement that you have sufficiently responded to the question.
- Speak clearly: Because responses are being recorded by the court reporter, shaking your head as a yes/no response or using phrasing like “uh-huh” are not acceptable; you must use the actual words “yes” and “no” for the reporter to be able to record definitive answers in the deposition transcript.
- Request that the question be repeated if you are not clear: Do not answer if you are unclear of the question being posed. You have every right to ask that a question be repeated, or even to be asked in a different way, to get the clarity you need to respond. Additionally, because this is often an intense situation, when you need a break (whether biologic or just to let your brain rest for a few minutes), do ask for it! While attorneys may be accustomed to continuing deposition questioning for long periods of time, you are the one experiencing real stress in the situation, and need to be able to take breaks as you feel.
- Answer only the question you are being asked: A deposition is not a situation in which “more is better”. Think about your responses – both before and as you are giving them – and if you find yourself adding in more detail for whatever reason, stop right there. If the attorney needs more detail, they will direct questioning that way. Offering information you may feel is helpful can often just muddy the issue about which you are being asked.
- Be careful with using absolutes: Use caution when answering a question either containing an absolute, OR when considering using an absolute in your response to a question. Questions may be posed containing absolutes such as, “In your career as a midwife, have you EVER (fill in the blank)?” or “Would you EVER consider it appropriate to x, y or z?” Though it may seem reasonable in the moment, responses incorporating absolutes will very often come back to you later on as, “But in your deposition, you responded that it would NEVER be appropriate to do x, y, or z and now you are saying that it MAY be appropriate in certain circumstances?”
- Tell the truth as you know it to be: This is particularly important for those who serve as expert witnesses. Unfortunately, there are people whose opinion on a clinical matter will vary depending on whether they are being paid by a plaintiff or a defense firm. What you know to be true, to be the standard of care, should be the same regardless of who is asking your opinion. Know that prior testimony you have given in any other case can, and often will be, located by the current case attorney(s) and brought up as facts you have attested to in the past. For those named in a malpractice action, do your best to recount the events of the action to the best of your ability. Adding information or details to your recollection, particularly any you did not have at the time of the events, will not be helpful to your position. Expect that there are usually several months – sometimes years – between the time of the event and you being deposed. If you sincerely cannot remember details about the events, rely on your documentation alone.
- Read over the written transcript: You should receive a copy of your transcript after the deposition. Read it over, and if there are discrepancies between what is recorded and your recollection of your responses, notify your attorney as soon as possible. You cannot change a response after it has been recorded, but if you feel an error occurred in the transcription, you should let your attorney know.
Lastly, know that though this is stressful, it happens, and you will survive it! The medical specialty of obstetrics and gynecology is consistently in the top three to five medical specialties with the highest percentage of malpractice actions. Involvement in a malpractice action does not make you any less of a practitioner; we are all human and subject to making errors. Further, your involvement in a malpractice action may not have even involved any error on your part; it may be solely that you were involved as part of a care team. Given the increasing acuity and volume of patients we see, it is almost inevitable that a practitioner will, even if peripherally, be involved in a scenario with a less than optimal outcome at some point in their career. One thing is for sure; the trauma of being involved in a malpractice action will pass. The time will come when thoughts about the case will not be part of your daily routine. Time really does bring healing and closure.
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