Suppose You Are Deposed

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Any views and opinions expressed are those of the author(s) and/or participants and do not necessarily reflect the views, policy, or position of Today’s Wound Clinic or HMP Global, their employees, and affiliates.

Noting that she has reviewed almost 300 cases and been deposed 21 times since 2005, Diane L. Krasner, PhD, RN, FAAN, FAAWC, MAPWCA, WOCNF, started her WoundCon session with the basics of giving a deposition. She noted a deposition is a pretrial procedure in which a witness or party to a case provides a statement under oath about a medical case or outcome. The goals include assessing what the deponent knows, getting an opinion down on record, and scrutinizing the experience of the deponent.
 
Dr. Krasner noted 3 types of deponents: Fact witnesses, who testify about the facts of the case; organizational representatives, who may be asked about facility policies, procedures, and processes; and expert witnesses, who testify as experts in their field and can opine on standards of care. Physicians and other providers can also opine on causation.
 
If clinicians are called as fact witnesses, Dr. Krasner said they should familiarize themselves with the facts of the case and review their own notes. She stressed that a fact witness will only testify on matters of firsthand knowledge and only on facts, not opinions or standards of care, advising allied health providers to stay in their lane. Dr. Krasner noted that fact witness depositions usually last from 1–4 hours and are permitted to go up to 7 hours.
 
Organizational representatives should look at the details of the case;  review relevant guidelines, policies and procedures; and  be prepared to testify on usual and customary practices.
 
Expert witnesses are those who are qualified as experts by knowledge, skill, experience, training, or education. They may testify in the form of an opinion. In the United States, expert witnesses are hired by attorneys representing the plaintiff or the defense, and expert qualifications vary from state to state. The situation is very different in other countries.
 
Dr. Krasner cautioned allied health professionals deposed as expert witnesses to stay in their lane by only testifying on standards of care—and not causation—or risk impeachment. She noted expert witnesses will be questioned on whether there was a breach or deviation from the standard of care that caused or contributed to the injury, or was the standard of care met. Krasner suggests that expert witnesses should review every page of the record and overprepare for a deposition. She cautioned that a deposition can become very adversarial; one should avoid emotional responses.

Tips and Tricks When Testifying

Dr. Krasner offered several tips and tricks to potential deponents.
 
If you get a subpoena, Dr. Krasner suggested reading it thoroughly and paying attention to specific requests. If the requests are too arduous, she noted you can discuss these with your retaining attorney who can object to opposing counsel. A deponent should spend adequate prep time with the attorney, reviewing all notes and pages in the medical record that have the deponent’s signature or initials.
 
One should just answer the question during a deposition, suggested Dr. Krasner, and not give more information than asked. She emphasized knowing the difference between “I don’t know,” which suggests “I never knew,” and “I don’t recall,” which means “I don’t remember.” If stated under oath, both are acceptable answers. Dr. Krasner advised against guessing or speculating. If you don’t know or don’t recall, she noted you can still answer based on your usual or customary practices or patterns.
 
Dr. Krasner said deponents should review the court reporter’s transcript and note any errata that need to be corrected, as this is what will be in the public record.
 
In conclusion, if you are deposed, Dr. Krasner advises: know why you are there, prepare carefully with an attorney, be confident in what you know, and if you don’t understand something, ask.