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WHAT THE NURSE SHOULD DO TO PREPARE FOR A DEPOSITION

OBJECTIVES At the end of this presentation the nurse will: According to the American Bar Association over 95% of cases are settled prior to trial. Therefore the deposition or sworn testimony in a case by one or more witnesses may be the single most important aspect of litigation. A deposition is a legal proceeding very much like a court hearing, held primarily in an informal setting. The deposition may be held in a person’s home, a hospital, a doctor’s office or at any of the attorney’s offices opposed to court. The deposition is used to discover relevant facts in the case and to save the court time so that a significant amount of the testimony may not have to be gone through if a case must be tried. Deposition testimony is sworn testimony that carries the same force and effect as if it were given before a judge and jury. This testimony may be able to be used in court to later impeach the testifying nurse. Many cases are settled after depositions are taken based on the testimony of the witnesses. The purpose of this continuing education offering is to provide the nurse and other health care professionals with a blueprint of what to expect if they are noticed for a deposition.

The deposition is probably on of the most useful tools an attorney has to bring out the facts which he or she needs to prove their case. A case can be damaged, sometimes irreparably by a client or witness who is not prepared to be deposed. It can also be won on the same grounds. An unprepared nurse can implicate themselves or others by not understanding the rules of a deposition. A deposition my uncover previously unknown facts about a case that may identify new defendants. Accordingly, the preparation for a deposition given by the nurse, whether as a party or as a witness, cannot be over-emphasized.

Most depositions are taken for discovery purposes, which means the intent is to gather all information that the deponent has about the facts of the case. A deposition will also commit the nurse to testimony, locking the deponent into a story. This allows the attorney to prepare other witnesses who will rebut the testimony or evidence at trial. In addition, because the testimony is set and sworn to under oath, if the nurse being deposed is contradictory in their trial testimony the conflicting information may be used to impeach the nurse.

Nurses are subpoenaed with increasing frequency as deposition witnesses. Some nurses are the named party in a lawsuit, some are named as employees of a defendant hospital or clinic and others are witnesses. Most of the testimony provided by nurses relates to civil cases in personal injury, medical malpractice, and nursing negligence. Criminal cases can include elder abuse, sexual assault and domestic violence. Nurses are also becoming expert witnesses or legal nurse consultants and provide valuable testimony on the clinical practice and standard of care in their community.

Other than a jury trial, a deposition is probably the most stressful events a nurse will experience when being involved in the legal field. It may also be the most important. Follow these ground rules and your deposition should proceed smoothly with few complications.

It is important to prepare for the deposition by reviewing the chart and going over any information that the attorney recommends. If you are represented by an attorney, insist on receiving deposition preparation. If you are not represented by an attorney, consider a consultation or hiring an attorney to represent you during the deposition. Always notify risk management and your immediate supervisor if you have been notified by subpoena of a deposition date and time. Most times the hospital attorney will be there to represent the hospital and to some extent you as an agent for the hospital. A word of caution: I recommend consulting with your own attorney. If the deposition is geared toward your own negligence you may be subject to being named as a party in a lawsuit and not just "one of the crew" at the hospital. However, it is in the best interests of all parties that you be well prepared to give concise, clear and factual testimony. Remember that an attorney may be able to not only ask about a nurses education, training and background but also about family, friends, conversations regarding the case, and past employers.

The opposing attorney may also ask about any criminal convictions, lawsuits, or discipline by the nursing board. All of these questions are fair game because they may be able to be reasonably calculated to lead to discoverable facts. In most jurisdictions you must answer the question ever over your lawyer’s objection unless it is covered under one of the few privileges under the law.

Arrive on time.
If you are represented by an attorney at the deposition, wait in the waiting area until your attorney arrives. Do not engage in conversation with the opposing attorney regarding anything remotely relevant to the case. This includes you background, training and experience. Comments made in a waiting room have found their way into trial transcripts on more than one occasion. Be composed and be quiet. Be extremely cautious about everything you write and any journal or notes you may have. All of this can be discoverable in most jurisdictions. For all practical purposes a deposition can be taken almost anywhere. You will be taken to a room where a court reporter and sometimes a videographer or both present. Generally, the deposition is held in some sort of conference room where there are chairs for you and the attorneys to sit. A judge is not present even though you are given sworn testimony. Only under rare circumstances such as a case where the attorneys cannot agree on anything will a judge be present. If there are multiple defendants in the case, there may be multiple attorneys present at the deposition. Expect courtesy and formality. You will be seated near a court reporter who will be transcribing every word that is said during the deposition. The court reporter will also be the person who administers the oath to you. The deposition is conducted in a question and answer format. Questioning by a skillful attorney will be methodical and careful; designed to uncover as much information as possible. In daily conversation, most of us anticipate a question and answer before the question is complete. Listen to the complete question posed to you by the examining attorney before you formulate your answer. Try not to anticipate the question. Your answer may be different at the end of a question than it would be halfway through. The attorney asking the questions will appreciate not being interrupted and should accord the same courtesy to you. By not interrupting, you also insure a clear and readable court record. The court reporter cannot record two people talking at the same time and the resulting deposition transcript is confusing and subject to misinterpretation by a judge and jury. Don’t answer any question you do not hear or understand. Lawyers are obligated to repeat or rephrase a question so you understand what is being asked. There should be no trick questions in a deposition. If you answer a question, everyone will assume you heard and understood the question. Answer all questions directly, giving concise answers to the question and stop talking.

Answer only the question asked.
This is a common mistake for nurses. For example: If the attorney asks what color the sky is you would respond "blue" (or whatever color you think it is). Do not interject comments on the number of clouds in the sky or the birds or the chance of rain. Never volunteer information or try to expose the faults of your coworkers in order to make your care appear superior. This is a grave error and one that only exposes your institution and you to further liability. If the examining attorney is too inexperienced or too inept to ask you the proper questions, that is their problem and not yours. If the question calls for a yes or no answer, answer yes or no and wait. However, if the question calls for an explanation it is fine to give one. Some nurses explain themselves into completely different subjects, steering the deposition into matters they feel should be covered. Resist that temptation. More damning testimony has been obtained because a nurse wanted to "educate" the attorney about the health care profession. Remember a judge or jury will be listening/reading/watching your deposition in the future. If you feel a clinical fact is important to get on the record, inform your attorney. If the fact is crucial to the case, your attorney will have an opportunity to ask you the question once the examining attorney has finished his or her portion of the deposition. If you don’t know the answer to a question it is fine to say you don’t know. It is acceptable to give your best estimate or your best recollection as long as you make it very clear on the record that you are not sure and are simply giving your best estimate or recollection.

It is crucial to stay focused.
Most depositions last a few hours at most. However, remaining calm under the stress of examination testimony can be a real challenge. Ask for frequent breaks if need be (about every 45 minutes to an hour and a half. Becoming argumentative, defensive, combative or evasive are traits that could be exploited by an opposing attorney in front of a jury. Remember that the deposition is used to memorialize your testimony and can be used against you or your facility later.

At the conclusion of the questions by the examining attorney, the other attorneys involved in the case, including your own, will have an opportunity to ask you questions. Once everyone has exhausted their list of questions, you will "go off the record" and the deposition will be ended. The court reporter will transcribe the deposition into booklet form and make the deposition available for your review and comment.

Nurses provide testimony that can be crucial to either the defense or plaintiff in a medical malpractice case. The testimony validates and amplifies the facts in the medical record. Therefore, nurses need to be prepared should they ever have to be deposed.

REFERENCE LIST
  1. Texas Rules of Civil Procedure
  2. Johnson, Earl Jr. California Trial Guide 9th ed. New York, NY: Matthew Bender & Co, Inc. 1998
  3. George, Nicholas How Clients Should Handle Depositions (cited 2002 Jan 14) Available from: wysiwyg://126/http://www.legalpaladin.com/resources/depo.htm
  4. Danner, Varn Mathias Medical Malpractice: Checklists and Discovery 2nd ed. Deerfield, IL Clark, Boardman, Callaghan 1997