PREPARATION OF THE DEFENDANT FOR DEPOSITION. Danielle Mikalajunas Fogel, Esq. Sugarman Law Firm, LLP

Transcription

1 PREPARATION OF THE DEFENDANT FOR DEPOSITION by Danielle Mikalajunas Fogel, Esq. Sugarman Law Firm, LLP 143

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3 PREPARATION OF THE DEFENDANT FOR DEPOSITION Danielle Mikalajunas Fogel, Sugarman Law Firm, LLP I. THE INITIAL MEETING AND PREPARATION MEETINGS The importance of deposition preparation cannot be understated. Too much preparation will not win you the case, but too little preparation can lose the case at the deposition It starts with proper attorney preparation o Preparation meetings are only effective if you are adequately prepared o Collect, review, summarize and most importantly understand all medical records associated with the case (discussed below) o Review any publications authored by the client o Search the web for any information on the client Including: social media searches; Google Searches; the client s doctor profile ; the client s website o Ensure that Plaintiff s Bill of Particulars gives you a good sense as to the client s alleged malpractice This is crucial. The client cannot be properly prepared if they do not know the particulars of the malpractice If plaintiff submits an incredibly vague or general response, a motion can be brought and is justified. The motion should be brought before the client is deposed. Ensure that informed consent particulars are included in the BOP to determine if informed consent is an issue o Review the transcript from plaintiff s deposition for allegations of malpractice, statements plaintiff claims the client made or did not make, lack of informed consent, etc. Deposition Preparation Meeting o Location: prep meetings should be done at your office, in a conference room, with plenty of space This will limit distractions and allow the client to focus on what you are telling them If possible, prep the client in the room where they will be deposed; show them where they will sit, where you will sit, where the court reporter and plaintiff s counsel will be, and where any videographer will be o Timing: deposition prep should occur at the latest a few days before the client s deposition The earlier the prep meeting, the more opportunity for follow-up meetings, if necessary, to reduce the client s nerves and make sure they are prepared Deposition preparation takes time; make sure adequate time is blocked off for the prep meetings to ensure that it is not rushed, and that nothing is missed 145

4 o Learn who the defendant is; learn their personality, anxiety level, demeanor, interest in the case, etc. More nervous/anxious clients may require more attention and preparation Find out how many prior suits the client has been involved in o Things to Discuss with the Client Inform the client of the stage and timing of the lawsuit Stress the importance of not discussing the case with anyone besides you Also stress the importance of reviewing only their own medical records, and not conducting any outside research The client should not expect that plaintiff s counsel will drop them from the suit at the conclusion of the deposition Most importantly, make sure the defendant knows that you will meet with them as often and for as long as necessary to prepare them for their deposition, and that you will be with them during the deposition II. III. MEDICAL RECORDS AND OTHER DOCUMENTS It is imperative that you collect, review, and summarize all medical records o Preparing a treatment chronology can neatly and concisely summarize relevant treatment, dates, and providers o Any handwritten notes must be deciphered; obtain a typed transcription of what these notes say to ensure clarity This is especially true for the client s handwritten notes; the client must know what they wrote and be confident in answering plaintiff s questions about their handwriting Simply reviewing records and making a chronology is not enough; you must understand the information contained therein o Familiarize yourself with the state of medicine and standard of care at the time of the malpractice and currently However, this should be shared with the client in only very general terms o Obtain outside expert reviews of x-rays, MRIs, etc. o Look up any words, phrases, or abbreviations that you do not understand o Do not hesitate to review the case and records with an outside expert if the materials are complex You may need to review more than just medical records; be sure to review any relevant documents o These may include employment contracts, hospital policies, accident reports, OPMC and other disciplinary records, the client s CV, etc. MANNER AND TYPES OF QUESTIONS Being questioned in a deposition can feel unnatural, and can lead to emotional responses from the client o The client must know to check emotions at the door 146

5 o The goal is to present the client as a kind and caring provider, who is knowledgeable on the medicine and the patient s records, and would present well to jury Stress to the client to listen to each question very carefully o If they do not understand any part, phrase, or word in the question, they should tell opposing counsel and not answer o The client should avoid the tendency to ask Do you mean? ; if they must ask a clarifying question, then they do not understand the question and should not answer o There is no shot clock for answering the question The client should take time to digest the question, make sure they fully understand it, think it over, and then respond Never let the client think outloud o Inform the client that opposing counsel may ask the same question in a different form to trick them They must listen carefully to what is being asked, and respond the same way Equally important: stress to the client only to answer the question that asked o Medical providers have a tendency to want to help opposing counsel, and volunteer more information than the question calls for Yes or No can often be the best answer to a question o Even if they know where opposing counsel is going, they should be instructed to make opposing counsel ask the additional question, and not answer with any more information than is necessary Rare exception: if, after reviewing and understanding the records, and based on training and common sense, the client must elaborate, then they may do so o Opposing counsel s will ask Yes or No questions that the client believed cannot be answered with a simple yes or no In those cases, the client may answer by saying I cannot accurately answer that question with a simple yes or no If you know opposing counsel style, tell the client so they can be best prepared o Some attorneys aggressively press for details, trying to get the client to bring emotions into the deposition Emotions must be checked at the door o Other attorneys will be very conversational, trying to get the client to give more information than the question calls for The client should never speculate or guess; this is not a memory test o I don t recall is an acceptable answer if the client does not recall However, the client s memory must be properly probed prior to the deposition, as a client who constantly answers I do not recall can come off as hard, cold, and not caring o Inform the client that they are free to read, review and refer to their chart to answer questions, and should do so if they need to Along the same lines, the client should never answer questions in areas of medicine beyond the scope of their own practice, training and experience 147

6 Independent Recollection/Refreshed Recollection/Custom and Practice/Chart o These three areas are often confused during the deposition, either by the medical provider failing to listen carefully to the question, or by opposing counsel asking the question in a manner which blurs them together You must be alert, and your client must know not to answer unless they understand what basis opposing counsel wants for the answer o Independent Recollection or Memory: the client can remember on their own, without any assistance from the record o Refreshed Recollection: client has no response when the question is first posed, but after being directed to a subjective portion of the chart, the client can then recall the information and testify without reading from the record Anything used to refresh a client s recollection is discoverable, and any claim of privilege is waived See Rouse v. County of Greene, 115 A.D.2d 162, 495 N.Y.S.2d 496 (3d Dep t 1985) This includes any private or personal notes the client may have made after the alleged malpractice. See Doxtator v. Swarthout, 38 A.D.2d 782, 328 N.Y.S. 2d 150 (4 th Dep t 1972) However, anything you speak to the client about is privileged, and you may paraphrase any information from medical literature or records from other providers if needed to enlighten the client o Custom and Practice: client knows something because they are repeating a deliberate and repetitive practice, and are confident they followed that practice in this case Custom and practice is accepted regarding treatment, procedures, and in informed consent cases to supplement the information contained in the informed consent documentation o Chart: client knows something because it is written in the chart, but have no independent recall of the event despite reading the entry IV. WHAT TO REVIEW WITH THE CLIENT Before the meeting, have the client review his or her chart, along with the plaintiff s bill of particulars During the meeting, make sure the client knows they are a witness, not a hostage; bathroom and water breaks can be taken if necessary, and the client should not be afraid to ask for break Discuss in general terms the relevant medicine and how the state of medicine at the time of treatment affected the care and treatment of the plaintiff All of the client s notes must be gone over with them to be sure the note can be easily read and to avoid surprises o This must be done thoroughly; review every entry, order, labs, etc. Any omissions, errors, or other documentary issues must be found and addressed prior to the deposition to avoid surprises. Don t let the client bully you; they do not know the chart fully, and there are almost certainly errors in the chart that they have not seen 148

7 o With hospital records, review each page to locate all notations, orders, labs, etc. by the client Also look for any orders which may be attributed to the client due to electronic medical records o Ask questions during your review of the records Ask the client why did you order, what the significance of is, what you meant when you said to prepare them for what it will be like during the actual deposition Review Client s education, training, and experience, as well as any disciplinary proceedings, prior lawsuits, OPMC proceedings, etc. o Any disciplinary issues must be uncovered and explained because plaintiff s counsel will surely ask about them Documentation problems o Client notes will often contain errors beyond just standard typos, such as forgetting to document something, or a dictation error which states a symptoms or condition the plaintiff does not have o You must prepare the client for questions on these topics and have them practice answering those questions Custom and Practice can be a good tool to remedy omissions i.e. A doctor may forget to document a potential complication to a procedure when obtaining informed consent. That error can be remedied by having the doctor state that is their custom and practice to tell all patient s receiving this procedure that o Differential diagnosis also creates documentation problems as medical providers rarely record differential diagnoses despite having identified, assessed, and ruled out the differential This process is often done by doctors subconsciously, and the client must express that it was done, but not documented o Any inconsistencies in the records, such as between an operative report and discharge summary must be reconciled EMR Issues o EMR can create template issues where information from prior appointments such as social history, family history, and even physical exams are carried over and placed in a subsequent visit o Other EMR issues include wrongful diagnosis, such as male pregnancy or female prostate cancer Plaintiff s counsel will surely have found these issues, and will grill the client on them, attempting to make the client seem careless, busy, and disinterested Therefore, you must find these issues, discuss them with the client, and prepare an explanation to show the client rendered appropriate and medical care despite the EMR issue 149

8 Authoritative Texts: make the client aware that they should never state that a medical text, journal, etc. it authoritative o This includes any chapters, articles, etc. authored by the client themselves o This is crucial to preserve hearsay objections, as such objections are always sustained unless a text is declared to be authoritative V. OBJECTIONS What to tell the client o Inform the client that objections will occur and why Often, the objection is due to a legal defect in the question, not because you are worried about the subject matter of the question Remind the client that this is litigation and attorneys can bicker, but they should ignore this, and continue as planned o Explain to the client how objections are handled You will object following a question by the plaintiff s attorney, and they should not proceed to answer until you have fully stated your objection and told them they can answer Make sure the client knows not to answer the question until you tell them to; answering over or before an objection can be properly interposed waives the objection The client will then answer the question unless you specifically tell them not to answer What you need to know o Objections are governed by the Uniform Rules for N.Y.S. Trial Court o Speaking objections must be stated succinctly and framed so as not to suggest an answer to the deponent 22 N.Y.C.R.R 221.1(b) In addition, you must state the defect in the question/other basis if plaintiff s counsel requests Further, you cannot interfere with the questioning through your objection, meaning you cannot speak to the witness other than instructing them to answer or not to answer o You can instruct you client not to answer the question only to (1) protect privilege; (2) enforce a limitation set by court order; or (3) for plainly improper questions which would cause prejudice to any person 22 N.Y.C.R.R When instructing a deponent not to answer, you must include a succinct and clear statement of the basis o You cannot stop the deposition to communicate with the client unless all parties consent or the communication is to determine if the client should not answer the question pursuant to This section appears to refer to unanswered questions based on the language after the or You may show your client a record prior to the client answering a question if the question does not ask for independent recollection 150

9 You may interrupt if the client is confused in order to ensure an accurate record o Trial courts have the ability to and have previously sanctioned attorneys for improper conduct during a deposition. See Cioffi v. Habberstad, 869 N.Y.S.2d 321; 22 Misc.3d 839 (N.Y. Sup. Ct. 2008) VI. OPINION QUESTIONS It is well settled that defendant medical providers may be asked questions regarding their expert opinion and give medical opinion answers. See McDermott v. Manhattan Eye, Ear & Throat Hospital, 15 N.Y.2d 20; 203 N.E.2d 469 (1964) Liability, standard of care, and causation questions o The client should never speculate o Client must avoid long wandering narratives, and should never give an opinion that is beyond the scope of their training and expertise If asked, the client should feel comfortable saying that they do not specialize in that field, and thus cannot answer. o Use appropriate words and phrases to frame the answer such as Based on my training and experience, It was my medical opinion at that time, It was my medical judgment at that time Your knowledge of the medical standard of care is crucial in preparing your client for these questions o Client must be able to state how an event, which could occur because of or in the absence of negligence, occurred in the absence of negligence with the plaintiff Liability and Standard of Care for Co-defendants: one defendant physician may not be examined before trial about the professional quality of the services rendered by a codefendant physician if the questions bear solely on the alleged negligence of the codefendant and not on the practice of the witness o however, where the opinion sought refers to the treatment rendered by the witness, the fact that it may also refer to the services of a codefendant does not excuse the defendant witness from deposing as an expert - the client must remain is scope of care and expertise The earlier the diagnosis/treatment the better chance the patient has? question o A favorite question of plaintiff s attorneys in a misdiagnosis case o Underprepared clients may simply answer yes without realizing so Better answers include it depend on a number of factors, that is not always true for some conditions or it cannot be answered with a simple yes or no If answering that it depends on factors, be prepared for follow-up questions asking the client to specify the factors Hypothetical Questions o These questions present you with two options: allow the client to state an opinion or have the client state they have no opinion o Each option presents issues 151

10 If the client states an opinion, that is their opinion. If it is inconsistent with the opinion of the expert at trial, plaintiff s counsel will surely emphasize the differing opinions in summation If the client does not carefully state they do not have an opinion, they may be foreclosed from giving any opinion at trial, and have to rely solely on the expert testimony If not giving an opinion, the client must know to hedge their bets by saying I don t know at this point VII. REVIEWING AND CHANGING THE TRANSCRIPT Inform the client that after the deposition they will have the opportunity to review their testimony and make any changes necessary o These changes can be in form or substance, and the client must state the reasons for making the changes. CPLR 3116 The client must state a valid reason for substantive changes, as plaintiff can move to strike the changes, and trial courts can grant such motions if no reason is offered for the substantive changes. See Zamir v. Hilton Hotels Corp., 304 A.D.2d 493, 758 N.Y.S.2d 508 (1st Dep t 2003) o Changes must be made within 60 days after submission of the transcript to the client for evaluation Failing to do so will allow plaintiff s counsel to use the deposition fully, as if it was signed VIII. CONCLUSION A well prepared medical provider starts with a well prepared attorney Deposition preparation takes time to be done effectively; time to review records, obtain outside reviews, learn the science, meet with the client, review the records with the client, and meet with the client again if necessary Effective deposition preparation will not win you the case; but bad preparation can lose you the case long before trial Every client is different, so know your client and what type of preparation will work best for that client 152