Law and medicine have long been among the most highly regarded and most impactful fields chosen by professionals. As these two fields have evolved to become both more inclusive and more highly specialized in the late 20th and early 21st centuries, so too have they become inexorably intertwined. With this evolution, patient advocacy and patient responsibility for medical care have also grown, and lawsuits against physicians involving their care as treating providers and/or requiring physician expert testimony are common. As such, young physicians are often warned that they will likely one day become involved in a lawsuit, as a treating physician, an expert witness, or a defendant themselves.
Regardless of the physician’s role in the litigation, the most important task that the physician will perform outside of the trial itself is to give a deposition. The purpose of a deposition is to allow the lawyers for the parties to ask questions of the physician relating to that physician’s care and treatment of the patient if the physician is a treating provider or a defendant, or to ask for the physician’s expert opinions following a review of the records and documents relating to the case. Deposition testimony is given under oath, can be used at the time of trial, and may have long-term consequences for the physician, regardless of whether the physician is a treating provider, an expert witness, or a defendant. It is therefore imperative that physicians understand their rights and responsibilities when giving depositions in order to provide clear, honest testimony and to avoid unintended consequences of poor deposition testimony.
The idea of a deposition is often daunting for physicians, especially those who have never been deposed before. This is not helped by the media’s portrayal of the deposition process as an opportunity for lawyers to verbally attack and intimidate the person they are deposing. However, if approached with thorough preparation and representation by a lawyer, if desired, a deposition does not need to be intimidating or scary. Rather, the deposition is an opportunity for physicians to explain the facts they know, the facts they do not know, and the care they provided.
A deposition is sworn testimony taken orally in a question-and-answer format. Depositions typically occur when the parties engage in the discovery phase of a lawsuit, which is the time during the lawsuit that the parties exchange documents and information before the case goes to trial. Lawyers use depositions for two primary purposes: (1) to learn information that may be relevant for their case and (2) to obtain sworn testimony that may later be used to help their case or hurt the other side’s case. In addition to providing valuable information to the parties during the discovery process, depositions may be relied upon by expert witnesses and used at trial for the purpose of showing prior inconsistent testimony of a ...