However, keep some things in mind when telling the truth. In particular, your ability to tell the truth is subject to the limitations of your memory and the fact that your deposition may be occurring several years after you provided care. “I don’t know” and “I don’t remember” are absolutely acceptable answers in a deposition. In fact, they are preferable to inaccurate or untruthful testimony. If reviewing a document (such as the patient’s medical records) will help you provide accurate and truthful testimony, don’t be shy about asking to review them. In any situation where you are guessing or providing your best recollection, make sure the lawyer knows you are doing your best but that you can’t remember all the details.
Make sure you understand the question: This rule seems self-evident, but many lawyers ask convoluted or compound questions. Lawyers may also use language unfamiliar to you as an outsider to the legal process. For example, when lawyers use the phrase “standard of care,” it has a fairly precise definition (it is an action a reasonably careful physician would undertake under the same or similar circumstances). Ask for clarification of any question that is not clear. It’s the lawyer’s job to ask an understandable question, not the physician’s job to answer a question that doesn’t make sense. Be extra careful when the opposing lawyer objects to a question. While the lawyer’s objection does not relieve you from answering, it should signal you that the question is potentially flawed or beyond the scope of your knowledge.
Answer only what you’re asked: Invariably, physicians struggle most when they don’t focus their answers on the question posed to them.
The majority of questions in a deposition can be answered “Yes,” “No,” “I don’t know,” and “I don’t remember.” Yet many physicians tend to volunteer additional information to explain their answers. Because lawyers are trained to recognize and follow up on nonresponsive answers, the physician’s deposition becomes longer and more challenging. To provide a better answer, don’t think out loud. Ponder the question and mentally prepare your answer. Doing so lets you respond more precisely. Answer only the question you are asked. If there is an area that needs more explanation, the other party’s attorney (or your attorney) will have an opportunity to allow you to clarify the record.
To help you follow the rules, use this decision tree during your deposition (see Figure 1, left).
Regardless of the purpose of a deposition or your perceived role in it, consult with an attorney before being deposed. Even if you believe you are being deposed only as a treating provider, a deposition could lead to potential claims or raise concerns about your records. If served with a subpoena, contact your insurance company, which may retain an attorney to assist you. TH
Patrick O’Rourke works in the Office of University Counsel, Department of Litigation, University of Colorado, Denver.