Lessons From the Defense – A Virtual Interview
As a provider of medical malpractice insurance, I have had a meaningful amount of interaction with attorneys defending our clients. Since a malpractice claim can create tremendous stress in a doctor’s specialized life, I thought would interview a fictional attorney, representing an experiential composite. This month our virtual attorney will answer questions related to depositions. Next month we will address the actual courtroom activity.
Q: What would be the first suggestion you would have for a physician facing a medical malpractice claim?
Trust your attorney. Although you may want to “manage” your case, remember that your chief competency is in the examining room and the surgical suite. The lawyer’s skill is in within the judicial system. The doctor’s cooperation is basic to mounting a successful defense. Should your lawyer ask tough questions or force you to confront uncomfortable issues, the purpose is to best prepare a strategy for defense and estimate your possible strengths and weaknesses in a court setting.
Q: What does the discovery course of action represent?
After the initial activity of requests for medical records, contacting the insurance carrier, notification that a suit is being filed, and assignment of an attorney, the case proceeds into the discovery phase. At this point attorneys for both sides review records and documents in order to estimate the claim. A major portion of this course of action involves interrogatories and depositions.
Q: How best does a doctor manager the written interrogatory?
First remember that your written answers are admissible in court, so review all of them with your defense attorney. The questions, and their repetitive character, can be irritating, so avoid letting your frustration get the better of you. Answer each question seriously and honestly.
Q: How do you prepare for a deposition?
Once a lawsuit is threatened, exercise discretion in your comments. Anything said to another person, other than your attorney or insurance claims representative, may be unprotected to discovery by the claimant’s counsel. Your attorney will advise you on strategy. Perhaps it will be advisable to acquire and review the patient’s testimony in improvement of yours. Your attorney will also suggest a thorough review of your medical records, in addition as any other applicable records from other physicians. Your attorney may also seek outside skill with medical issues for better understanding of the case. Finally, your attorney will want to review questions that you may be asked in improvement to help advise you on the best approach in answering them.
Q: Any recommendations for the actual course of action of giving testimony?
First and foremost, be truthful and avoid guessing! Keep your responses fleeting and accurate, delivering them in a calm and thoughtful manner. Do not volunteer any information other than direct answers to specific questions. Take your time in processing questions before answering, allowing your attorney time to go into any objections to a question. Always follow your attorney’s instructions throughout the time of action. Remember the opposing attorney is seeking to elicit answers that will be advantageous to their case, in addition as assessing your demeanor under questioning. Consider this as a dress rehearsal for the possible trial.
Q: Does the defendant get to review the deposition transcript?
Following the deposition, you will receive a copy of your testimony for review. Upon reading it over thoroughly, provide your attorney with notes on any suggested changes or corrections that you feel are necessary for accuracy. Do not make any corrections or notes on the document itself, without first getting approval from your attorney.
Several years ago, we polled our clients as to what they expected from their medical malpractice carrier. Their resounding answer was an aggressive defense should a claim be filed against them. In this column, I hope to have provided some suggestions on how a physician can best assist the attorneys in mounting that aggressive defense. Although impossible to address every deposition concern in a single column, I have highlight some of the more shared and meaningful factors of concern.