Physicians alleged to have been involved in the negligent medical care of a patient often face a deposition. The idea of a deposition is often a foreign landscape to physicians.
A deposition is part of permitted pre-trial discovery (investigation to identify the facts), set up by an attorney for one of the parties to a lawsuit demanding the sworn testimony of the opposing party (defendant or plaintiff), a witness to an event, or an expert intended to be called at trial by the opposition.
If the person requested to testify (deponent) is a party to the lawsuit, or someone who works for an involved party, notice of time and place of the deposition can be given to the other side’s attorney, but if the witness is an independent third party, a subpoena must be served on the witness if he or she is reluctant to testify.
The testimony is taken down by the court reporter, who prepares a transcript, which assists in trial preparation and can be used during the trial to contradict (impeach) or refresh the memory of the witness, or to be read into the record if the witness is not available.
A Real Case
A plaintiff’s family alleges negligence against a critical care unit (CCU) physician’s delay in responding to a post-operative bleed. The physician was on-call, supervising the resident by phone. The resident advised the on-call CCU attending that there was a mild decrease in the hemoglobin (Hg), but that when he repeated an Hg one hour later, the Hg was unchanged, and the patient’s vital signs were stable.
The CCU attending advised the resident to have the vitals performed every 30 minutes and to repeat the Hg in two hours. Before that time elapsed, though, the patient had a severe bleed resulting in death.
The alleged negligence is that a CT should have been done earlier to check for bleeding. The CCU attending thought that the situation was defensible. At the deposition she said she thought that she made it clear that this did not appear to be an imminent or unstable situation.
The plaintiff’s lawyer then asked the CCU attending: “If a post-operative patient’s Hg is decreasing over a 2-hour interval, would it be appropriate to order a CT to assess for bleeding?”
The defense attorney objected to that question as assuming facts not in evidence, but the plaintiff’s lawyer said that it was a hypothetical that was permittable to ask.
The judge was called for a telephone conference and the judge said that the CCU attending had to answer the question truthfully. (The answer is that the situation could warrant a CT in a reasonable physician’s judgment, but opinions may differ and the stability of the Hg and the vital signs did not necessarily warrant a CT scan to assess for bleeding.) But why did the CCU physician have to answer such a speculative question?
If it had been merely speculative, or had assumed facts not in evidence, then the physician would not have had to answer it, and the objection by her lawyer as to the form of the question would have been upheld.
However, it was actually a hypothetical, which is a proper question and has to be answered. In fact, if the judge had been unavailable while the deposition was going on, the physician could have been ordered to come back to be deposed on that one question.
The bottom line is that the deposed must answer questions. For example, many Civil Practice Laws and Rules state that deponents must answer all questions at a deposition, except 1) to preserve a privilege or right of confidentiality, 2) to enforce a limitation set forth in an order of a court, or 3) when the question is plainly improper and would, if answered, cause significant prejudice to any person.
The role of the deposition is very different from the role of testimony at trial. The deposition takes place during the discovery phase of the litigation — the objective is to discover facts. The rules are much looser than they are at trial, and that includes the use of hypotheticals that relate to a claim or defense of the action.
In this case, the lawyer was framing the facts in terms of their own allegations. It is the CCU physician’s defense that there was not continuous bleeding, but rather that there was evidence of bleeding that stabilized, warranting conservative management; the plaintiff is claiming that the CCU physician ignored an ongoing process until it became catastrophic. The hypothetical question, therefore, used the facts that are in evidence, but with an alternative interpretation, which is precisely what the litigation is about.
The plaintiff’s attorney believes that at trial she will be able to prove her contention of what the undisputed facts indicated and so she wanted the CCU physician on the record saying that if those facts are true then the case was mismanaged and the alleged negligence occurred.
The CCU physician is entitled to say she did not agree that there was ongoing bleeding over that time interval, but having said that, she is entitled to explain the variation in medical care based on the clinical facts surrounding the case. The key point is that responses should be well thought through and truthful and should support the defendant’s actions or omissions.
Opining About a Co-Defendant at Deposition
A neurologist was managing a patient with a ventriculoperitoneal (VP) shunt malfunction but was reluctant to do a VP shunt revision. The notes reveal that the neurologist excluded other issues and made the most likely diagnosis of VP shunt malfunction. The neurosurgeon delayed acting, however, because the CT scan did not suggest VP shunt malfunction.
There was a suboptimal outcome and now the neurologist is being sued.
The neurosurgeon and the hospital had one insurer and the neurologist had another. At the neurologist’s deposition the plaintiff’s lawyer asked the neurologist if the resistance to consider shunt malfunction for two days was a departure from good and accepted medical practice (standard of care medicine). The neurologist attorney was mum, but the plaintiff lawyer objected, apparently because the neurologist and neurosurgeon were co-defendants. Why should being a co-defendant be an issue?
The neurologist was being asked to opine solely about the professional quality of the care rendered by the neurosurgeon (co-defendant), a question that would bear solely on the neurosurgeon’s alleged negligence and not on the neurologist’s practice. That is not permissible for exactly the reason that the neurologist wanted so much to answer: finger-pointing and blaming.
One co-defendant can testify as to the medical actions of the other co-defendant if the opinion being sought refers to the treatment that they rendered, and as part of that answer, necessarily refers to the care that the other defendant provided. The neurologist could therefore talk about her own actions and how the neurosurgeon’s delay impacted them and make every point in that way.
The co-defendants are prudent to not allow the plaintiff attorney to engage them in a finger-pointing game. It is important to not get lost in the game of finger pointing, to be an essentialist with words in the deposition.
The Importance of Notes
A 54-year-old male comes to the emergency room (ER) with chest pain. The troponins and ECG are normal. The ER physician sends the patient to coronary CTA demonstrating a 60–70% proximal left anterior descending coronary artery (LAD) stenosis.
The patient is transitioned to the catheterization laboratory, where angiography identifies a “high grade” proximal LAD stenosis. It is determined that stenting is high risk and the patient is sent to the cardiology service for observation and cardiac surgery consultation.
You are the cardiologist on service and you take a history that is strongly suggestive of pericarditis. You obtain inflammatory markers that are marked elevated. The echocardiogram reveals preserved left ventricular function with a small pericardial effusion. Cardiac MRI reveals pericardial inflammation without myocardial involvement. This constellation of history and testing strongly supports the clinical diagnosis of pericarditis.
You start an anti-inflammatory medication and colchicine and the chest pain resolves after several days. You carefully document in your notes that you believe this presentation is because of pericarditis and that treatment should be continued for 6 weeks and then the coronary disease should be re-evaluated.
The cardiac surgeon sees the patient at the request of the interventional specialist. The patient goes to bypass surgery with a left internal mammary artery (LIMA) to the LAD soon after the initial presentation.
Six weeks later, the patient comes to the ER with a STEMI. Repeat angiography reveals the LIMA graft is closed because of competitive flow.
The plaintiff files a lawsuit alleging a wrong diagnosis and treatment and all parties to medical/surgical care are sued. The crux of your defense as the service cardiologist is your carefully crafted notes.
At the deposition, the medical record notes will be the determining factor on whether you are dropped as a defendant. The importance of granular, detailed notes outlining your rationale for the care provided will be the most supportive defense you have when being questioned in a deposition. At deposition, your notes support the diagnose outlined by the opposing medical expert and you are dropped from the lawsuit.
The Fifth Amendment as an Option
A physician was called in on a delivery because her partner, who was on call, had begun vomiting and could not participate in the case. The physician covering had had two drinks (a glass of wine with dinner, a Scotch later while watching TV), but felt clear-headed so took the call.
The fetus was in distress and the covering physician decided to perform a C-section. The baby had anoxic brain injury and negligence was alleged, stating the covering physician failed to intervene in a timely fashion.
The record supported that the physician acted promptly, but one of the labor and delivery nurses told the plaintiff that she smelled alcohol on the physician’s breath when she arrived. Intoxication at the time of the medical care could result in charges of assault and battery or reckless endangerment, so rather than trying to explain the number of drinks that the covering physician had, she wanted to assert the Fifth Amendment and refuse to answer questions about this when he was deposed.
The role of the Fifth Amendment, which allows defendants to refuse to answer on the grounds that the answer would incriminate them, is actually different in the civil setting than in the criminal one.
In a criminal case, defendants’ assertions of their Fifth Amendment right cannot be held against them; however, in a civil case, the jury is permitted to draw an “adverse inference” when there is independent evidence of the facts.
For example, the judge will instruct the jury that “From the assertion of the privilege you may infer, if you deem it proper to do so, that had the answers been given they would not have contradicted the opposing evidence on the issue, or would not have supported (the defendant’s/plaintiff’s) position on that issue and you may, although you are not required to, draw the strongest inference against (them) on that question that the opposing evidence supports.”
In other words, the jury can infer that if the deponents had answered truthfully rather than staying silent, they would have supported the case against them.
Note, however, that the requirement of facts in evidence means that someone invoking the Fifth Amendment does not make their opponent’s case for them. In this situation, the nurse’s likely testimony at trial that she smelled alcohol on the physician’s breath would be such a fact, allowing the adverse inference by the jury that had the physician answered about this matter, her answer would have supported the covering physician being inebriated at the time of the delivery.
That said, you may not be able to assert the Fifth Amendment even if you want to because if you already testified about the same transaction, it can be considered a waiver of that option. In other words, if you already testified that you clearly remember assessing the patient and making your decision, you will not be able to then avoid answering as to whether you were intoxicated at the time that you did so.
Is staying silent or speaking more potentially harmful? This will be a matter to discuss with the lawyer who will be representing you at your deposition. If you jointly decide that staying silent is not your best option, then you will jointly prepare answers that will get the facts that you want about your actual sobriety into the record, which is ultimately your goal.
Conclusion
The deposition is a critical component of the discovery process when a physician becomes part of a lawsuit alleging negligence. Physicians must understand the nuances of a deposition and, more importantly, the approach to daily medical care that will limit the potential to experience a deposition.
Without a doubt, the obvious step is practicing standard of care medicine. But the next most important step is careful, granular documentation of the medical care. There should be detailed discussion of the rational for that medical care with supporting documentation reflecting the decision-making.
That due diligence regarding medical care will minimize the potential for experiencing a deposition, and also allow a defendant physician to calmly respond in deposition based on detailed, well-thought-out, and carefully crafted discussion of the medical care founded on supported medical documentation in the medical record notes.
It is important to remember the critical importance of informed decision-making and shared decision-making being outlined in the medical record notes.