How important is the defendant psychiatrist's deposition in a malpractice case? It could mean the difference between the suit being dismissed—or going to trial. Do not let the relatively informal nature of the deposition mislead: approximately 90% of malpractice cases settle before trial, and the deposition of the defendant doctor is often the turning point that determines the outcome of the case.1-3 If a case settles in favor of the plaintiff, the effectiveness of the defendant psychiatrist at deposition may determine whether the case settles for $300,000—or $1,000,000.
After a formal complaint alleging malpractice is made, the discovery phase of the litigation process begins. Discovery is the process in which the parties to a lawsuit go about gathering information before trial.4 The rationale behind discovery is to reduce surprises at trial and to encourage settlement before trial. Methods of discovery include written interrogatories, requests for documents, and depositions of various witnesses. A deposition is “a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for later use in court or for discovery purposes.”5 The witness being deposed is referred to as the deponent, and the testimony is given under oath.6
The 2 general types of depositions are:
- Depositions to preserve testimony.
- Discovery depositions.
Depositions may be given to preserve testimony in the event that a witness will not be available at the trial. This type of deposition adheres to the usual trial procedures of direct and cross-examination and is often videotaped for viewing at the trial. A discovery deposition is designed to gather information before trial. Almost all questions are asked by opposing counsel. This type of deposition is most likely to be encountered by the defendant psychiatrist sued for malpractice. While the ground rules for the deposition vary among jurisdictions, in general, the Rules of Civil Procedure give deposing counsel substantial latitude regarding the questions that can be asked.7 The parties at the deposition typically consist of the deponent and defending counsel, opposing counsel, and the transcriptionist.
The plaintiff’s attorney has a wide-ranging agenda during the deposition. The overarching goal is to gather as much information as possible about the other side’s case.8 No matter how accurate the medical records may be, interpretation and follow-up questioning of key players will still be required to get the full story. Another goal of opposing counsel at deposition is to “lock-down” a witness’s testimony for use at trial.6 Once the testimony is captured at deposition, it can be used to impeach the witness in the event that the witness gives inconsistent testimony at trial.
In addition to gathering information, opposing counsel seeks to assess the strengths and weaknesses of the defendant psychiatrist as a witness.9 The impression made by the defendant psychiatrist may influence the plaintiff’s attorney’s decision about how far to pursue the case. Experienced defense attorneys may begin to consider settling a case “if their client shows such arrogance [in the deposition] that they’re afraid to let him appear in front of a jury.”10
Preparation is Paramount
The defendant psychiatrist is likely to experience significant emotional stress that waxes and wanes during the lengthy litigation process.11,12 Some of this stress may be relieved by being well prepared. It will be important to carefully review the entire database, which usually consists of the medical records and other fact witness discovery depositions. This review should be conducted at least twice, with one review occurring just before the deposition.3 This will keep the details of the case fresh in mind and will be helpful in the event that opposing counsel mischaracterizes information during the deposition.
In preparing for a deposition, it is worthwhile to insist on at least 2 pre-deposition conferences with defense counsel. At the first meeting, the psychiatrist should volunteer all pertinent information about the case, as well as any noteworthy medical inconsistencies.2 Other questions to be addressed include what documents to bring to the deposition, who will be present, and the expected duration. Defense counsel will not have control over how long a deposition lasts but may be able to give a rough estimate. The psychiatrist should plan accordingly and allow for sufficient scheduling flexibility. The typical duration of a deposition is approximately half a day, but depositions that last more than a day are not unheard of.