Going Before the Board, Are You Ready?

Going Before the Board, Are You Ready?

DEPOSITIONS -What you Need to Know

by Tonia Dandry Aiken, R.N., B.S.N., J.D.

Depositions produce extreme anxiety and require preparation and education. In a healthcare setting, nurses have depositions taken for many reasons: as a defendant (person sued), as a fact or material witness (who may have knowledge about facts surrounding allegations and circumstances in the lawsuit), as an expert witness (used to prove liability or damages) or as a holder of important documents (e.g., emergency room supervisor who has the ER log for patients).

What is a Deposition?

A deposition is a structured interview in which the person being interview (the deponent) is placed under oath and asked questions about issues of the lawsuit.

Reasons for Depositions

To gather or "discover" all available information about the allegations and circumstances surrounding the lawsuit.
To evaluate demeanor and credibility of the witnesses and parties to the lawsuit.
To discover facts and the circumstances of the alleged malpractice.
To determine availability of insurance coverage.
To assist attorneys in formulating strategies for litigation or negotiations.
To assist attorneys in assessing the strengths or weaknesses of their cases and their opponent's cases.
To determine the existence of pertinent documents.
To preserve the testimony of a witness who may be unavailable at the time of trial (e.g., out of town or dead as a result of a failure to timely diagnose cancer).
To be used during the trial to refresh the witness' memory.
To be used during the trial to impeach the witness' credibility.

Preparation For Your Deposition

If your deposition is going to be taken, you must be prepared for it. Do not show up twenty minutes before your deposition and expect to be properly prepared.

Your attorney or the facility's attorney should prepare you. You may be asked to review the medical records of the patient; other depositions taken in the case; expert reports, authoritative texts or articles, standards of care, hospital policies and procedures, nurse practice act and guidelines, or other pertinent documents.

Topics to Discuss With Your Attorney

How do you fit in the scenario? Why have you been sued?
Why are you being deposed?
Who are the plaintiffs (persons suing) and defendants (persons sued)?
What are the allegations of liability and damages noted in the Complaint or Petition for Damages?
What are the appropriate standards of care and/or policies and procedures that should have been followed or that were followed?
What are the possible defenses to the allegations of negligence and liability?
What are the common types of questions that will be asked of you?
What is the opposing counsel's style of deposing?
What are the potential "danger" areas in your testimony?
Where will your deposition be taken?

How Should You Appear at Your Deposition?

1. Professional

2. Confident

3. Organized

4. Knowledgeable

5. Honest and credible

6. Not defensive

Remember, it is important that you take a deposition very seriously. Take control–it is your deposition. Do not be intimidated by the opposing deposition.

DO'S

Do review the pertinent documents.
Do be prepared for your deposition.
Do have the medical records in front of you at all times so that you can refer to them if necessary.
Do refer to the medical records when needed to answer questions.
Do dress professionally.
Do answer the question asked.
Do listen to the specific question.
Do ask for a break if you are tired, confused, aggravated, emotionally upset or need to talk to your attorney.
Do wait before answering the question to give your attorney the opportunity to make the proper objections.
Do reserve the right to read and sign your deposition. (You can read the transcript of your deposition and make notations or corrections. Rules may vary from state to state.)
Do ask to see the documents that opposing counsel is referring to prior to answering the questions.
Do speak clearly.
Do answer verbally.
Do state "I don't know" or "I don't remember" if that is in fact the case.
Do look at the attorney asking questions.
Do speak slowly so that the court reporter can transcribe all of your testimony.
Do realize that although other healthcare providers are defendants they may not necessarily be your allies.
Do tell the truth - remember you are under oath.
Do listen to the specific objections made by your attorney. (The attorney will usually try to guide you and alert you to the potential problem questions.)
Do answer only after the complete question has been asked.
Do answer a question with "yes" or "no" if you ,can. Make the attorney ask the questions.
Do ask the opposing counsel to break up a compound question.
Do ask the opposing counsel for clarification of unclear or complex questions.
Do be cautious about agreeing with the opposing counsel. (She may ask you to agree with a comment or statement to set you up.)
Do be cautious about hypothetical situations which may not have the exact facts of the case at issue.
Do give short and concise answers.
Do watch your body language. Crossed arms can indicate defensiveness. Relax your body. Put your arms at your side or lean on the table and rest your arms on the table.
Do write notes to your attorney if necessary.
Do focus only on the deposition and the facts at issue.
Do watch your facial expressions which can be very revealing.
Do prepare for the deposition.
Do maintain control. It is YOUR deposition.

DON'TS

Don't show hostility or anger.
Don't be intimidated.
Don't argue.
Don't make sarcastic or prejudicial comments.
Don't joke during your deposition.
Don't volunteer information.
Don't make assumptions.
Don't talk to or ask your attorney questions in front of the other attorney.
Don't turn to your attorney for the answer after being asked a question.
Don't change your testimony when reviewing your deposition.
Don't shake or nod your head. (Remember the court reporter is taking your verbal testimony.
Don't feel uncomfortable if the plaintiffs are sitting across the table from you. (They will usually attend and may be instructed to stare at you to make you feel uncomfortable.)
Don't fall for the common lawyer tactic called the "pregnant pause." (Lawyers will ask a question which you answer and then pause, say nothing and act like you are supposed to give them more information. Simply state that you have answered the question.)
Don't give long narrative answers.
Don't lie.
Don't change your answers because it appears that you are lying and you lose credibility.
Don't "teach" in a deposition unless you are being deposed because you are an expert witness.
Don't talk at the same time as someone else. The court reporter can only record one person at a time.
Don't state specific dates and times of which you are really not sure.
Don't whisper or talk to your attorney during a deposition - it appears like you are trying to get information.

For more information on depositions and preparation, refer to Legal, Ethical, and Political Issues in Nursing, Editor/Contributing Author Tonia Dandry Aiken, RN, BSN,JD, published by F.A. Davis Co., (800) 523-4049.

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