Medical Malpractice Deposition Guide

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Depositions are a crucial piece of discovery in medical malpractice cases. In depositions, witnesses answer questions from an attorney under oath. They typically relate to the incident and the witness’s background. Importantly, they can be later used at trial to impeach the witness or, in certain instances, can be read into evidence. For more information about depositions and the discovery process click here. This guide should help you formulate a plan of attack for asking questions.

General Advice

  1. Prepare: You cannot over-prepare for a deposition. While many amateurs may think that the purpose of a deposition is to undercover the thoughts and memories of the person being deposed, the real end of a successful deposition will be advancing your own case. Therefore, before going in, you must master it. Become an expert of the record; review religiously all medical records, doctors’ notes, and other relevant files. Have a complete understanding of your version of the case including negligence, causation, and damages. Then, formulate the best line of questioning to draw support for that version.
  2. Be Polite: An ounce of manners is worth a pound of force. Remember that while depositions are by their nature adversarial, they do not have to be hostile. Also, you will need a working relationship with the defendant’s counsel for the rest of the case. So, ask direct questions but avoid embarrassing, condescending, or wasting their time.
  3. Let them speak: You need to get as much information out of the interviewee as possible. So, let them speak. Whereas you need to box the other side into corners with other forms of discovery, in depositions you need to use open-ended questions to let them explain themselves. Short, curt answers will not allow you to flesh out your case. Another useful idea is to let them read their notes. This will clarify any misunderstandings you have about them (such as their handwriting) and get their version into the record so they cannot oppose it later.

Deposition Outline

Here is a rough outline to guide your deposition in a medical malpractice case:

  • Ask about the personal and professional background of the deposed such as:
    • Where do they live?
    • What is their contact information?
    • Where did they go to school?
    • What licenses do they have?
    • What boards do they sit on?
    • Where have they worked and for how long?
    • What has their practice consisted of and for how long?
  • Ask about the professional status of the deposed such as:
    • Do they know or have they ever taught and, if so, where?
    • Do they below to any professional organizations?
    • Do they have any publications or research?
    • Do they have any other related credentials?
  • Ask about the specific medical issue with respect to the case such as:
    • Describe the medical issue generally?
    • Do they have any prior experience with this medical issue?
    • What is typically the course of treatment for this medical issue?
    • Can you define all relevant medical terms and issues?
  • Ask about the incident such as:
    • What were your observations/diagnoses before treatment?
    • Do these conflict/align with your notes?
    • Why did you choose a certain course of treatment?
    • Before/after what conversations did you have with the plaintiff?
    • Before/after what conversations did you have with the plaintiff’s
    • friends/family?
    • Before/after what conversations did you give the plaintiff (i.e.
    • notes/medicine)?
    • Before/after what conversations did you give the plaintiff’s
    • friends/family?
    • Ask what they believe the cause was of the plaintiff’s initial issue and
    • resulting pain?
    • Ask what the relevant standard of care and ask if the treatment given
    • met that standard?
  • Ask about other miscellaneous questions such as:
    • Have you ever been sued before?
    • Has your license ever been revoked before?
    • Have you ever been fired before?
    • Have you ever been reprimanded before by an employer/organization/board/court/state authority/etc.?
    • Did you review anything before this deposition and, if so, what?
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