The most critical aspect in the defense of a medical malpractice lawsuit is the deposition of the physician defendant. Since the majority of medical malpractice actions are concluded prior to trial, the deposition is often the best opportunity to directly influence the ultimate outcome of the case. Medical malpractice litigation is extremely complex and involves highly technical information and analysis, so significant preparation and a thorough understanding of best practices and successful techniques are key.
Doctors have likely been deposed many times and expect the same traditional start to the deposition—specifically, having to recite their qualification, education, pedigree, and similar establishing information. However, you can save those routine questions for later and launch right into questions about the heart of the case instead. The disorienting effect on the doctor may result in a more genuine answer instead of a canned and prepared response.
Ask open-ended questions.
Instead of asking questions that result in a finite response based on medical facts, you should include open-ended questions that can get the doctor talking about their opinions. Do not simply ask a physician if they operated on the wrong body part—ask them WHY they did it. These are subjective answers that you cannot necessarily predict from your files, and you’ll want to know them before the trial.
Be aware of your demeanor.
Some litigators may be tempted to get sarcastic or hostile with a witness who is a professional. Once your demeanor changes, however, so will the doctor’s. They may start giving shorter answers and stop offering opinions or elaborations. The doctor may suddenly appear to be a victim in the situation instead of the perpetrator. While it’s a good idea to test the waters and see if you can push the witness’ buttons, you can do so while being professional and polite.
Ask questions regarding medical definitions.
Allow the doctor to give their version of medical definitions relevant to your case. You should follow up by asking whether the definitions provided are standard throughout the medical community or whether there are different schools of thought on the matter. Ask whether the physician reviewed medical texts as part of their preparation for the deposition to refresh their knowledge of specific definitions.
Inquire into the doctor’s history.
Have they had their medical license suspended or revoked in the past? Have they been accused of medical mistakes or negligence before? Do they have any disciplinary issues? What is their standard procedure regarding patients in similar situations, and did they follow their standard procedure in this case?
Ask opinion questions.
Ask for the doctor’s opinion regarding whether the treatment was proper in this case. Confront them with opinions from other medical experts and get their response. Opinions can be just as important as medical facts in this type of case.
Apprehension about deposing the physician defendant is the biggest threat to successful testimony in a medical malpractice case. Put your fears to rest by familiarizing yourself with the procedure and preparing for predictable questions and variable responses—due diligence before your deposition will lead to a strong defense.