You’re sure you did nothing wrong in the operating room. You’ve gone over your testimony several times with your attorney, and you’re looking forward to the day of your deposition so you can set the record straight.

However, it is often this type of attitude that can get defendants into trouble—especially when they have been accused of medical malpractice.

How to Survive Your First Medical Malpractice Deposition

The first thing to remember as you enter your deposition is that the less you say, the better. Many nurses and physicians make the mistake of thinking that their deposition is an opportunity to give their account of what happened. Even if they explain things clearly and intelligently, they often open themselves up to grievous errors in their testimony—especially if they give a long-winded account of the events.

The Dos and Don’ts of Testifying in a Medical Malpractice Deposition

  • Don’t try to read the opposing attorney. Many defendants will look for cues on how the deposition is going based on the opposing counsel’s attitude. You should be aware that attorneys have spent years honing their line of questioning and controlling their demeanor in order to keep control of the discussion. Don’t be fooled by a friendly attitude, and don’t be bullied by a belligerent tone: keep your responses calm and even.
  • Have your basic medical facts down. As a healthcare professional, you will likely be questioned on all basic medical facts involved in your case. Opposing counsel will try to find evidence that you made a mistake, and the first step is often discovering whether or not you are professionally competent. It is vital that you understand all of the medical terminology and components of your case.
  • Use your attorney/client privilege. Any conversations you have with your attorney are protected, so you should use this time to your advantage. Opposing counsel cannot ask you questions about what happened in the lawyer’s office or what advice your lawyer gave you, and usually cannot inquire about methods used to build your case. For example, if you and your attorney performed additional research on common treatments in case you are asked about them on the stand, that research is confidential.

If you remember nothing else, remember to take your time during the deposition. Anything you say will be picked apart by the opposing attorney, and once you have given information it will be hard to retract it. Pause after each question and make sure the answer is correct, and that it provides only the information that you were asked for. Saying too much is far more dangerous than saying too little, since opposing counsel can (and will) always ask you for more information if it’s needed.

Do you know what to do if you are asked a personal question in a deposition?

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