A deposition is a formal legal process in which questions are asked and answers obtained. Oral testimony is taken under oath and every word spoken is transcribed. The transcript can be introduced in court as evidence if the case proceeds to trial. Depositions are usually conducted during ordinary business hours, and may last from a few hours to more than a day.
Attorneys may ask any question that might lead to the discovery of admissible evidence, provided that answering it does not require disclosure of privileged information. Answers should be consistent and, above all, truthful. Knowingly making a false statement in a deposition constitutes perjury.
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The purpose of a deposition is to investigate the facts and issues about both the event that is the subject of the lawsuit and the deponent's background. A deposition may be taken to preserve the testimony of a witness who will not be available at trial, such as one who is very ill. The process is also used to assess the credibility and demeanor of the witness.
A plaintiff's attorney generally uses the deposition to elicit information that may not be contained in the medical record. The witness' appearance, professionalism, and demeanor (i.e., his or her potential impact on the jury) are gauged throughout the deposition. Information and observations gained from the deposition are used by the opposing side to develop additional lines of questioning and to plan strategy for a possible trial. Attorneys will review the deposition transcript for any inconsistencies in testimony from documents generated by the deponent at the time of the incident, at the deposition, or at trial.
In a malpractice lawsuit, any person with knowledge that relates to the case, anyone who the patient remembers, or anyone whose name appears in the medical record may be deposed. Parties to the lawsuit, prior or subsequent treating physicians, witnesses to the incident in question, consultants, and-under some circumstances-expert witnesses all may be deposed.
If you are named in a medical malpractice lawsuit, your attorney will receive the notification of the deposition and contact you. A party to the suit does not need to be served with a subpoena. A "Notice To Take Deposition" is the only document necessary to require your attendance.
Generally, if you are not a party to the lawsuit, you can only be compelled to attend a deposition by subpoena (a document seeking to have you testify or produce certain documents at a specific date, time, and place). Since you could potentially be named as a defendant based on information you provide at the deposition, an attorney will be provided by CRICO/RMF to assist you.
Contact your risk manager or CRICO/RMF promptly to ensure proper and timely legal representation. Your attorney has only 10 days to file a Notice of Objection to a deposition subpoena. Avoid discussing the case or the deposition with colleagues, as such discussions are not protected from legal discovery. Conversations with your spouse, risk manager, insurance company representative, and attorney are protected.
The deposition is usually taken in the opposing attorney's office. While your office may seem more convenient, the likelihood of problems occurring is greater. For example, files or reference materials in open view could be observed and recorded by the plaintiff's attorney.
Bring only the documents specifically requested in the subpoena. Do not bring any other records or personal documents. Review the records to be sure that they do not contain any additional material that was not requested or materials that require separate patient consent.
