H E A L T H L A W How to Prepare for and Give a Deposition ■ JOHN SHUFELDT, MD, JD, MBA, FACEP Y ou are sitting at a long mahogany table in an unfamiliar, yet very well-appointed, office wearing the same dark suit that you last wore at your cousin’s funeral. A pale, gaunt man with what looks like a small typewriter scrambles furiously to keep up with your rapid-pressured response to the question, “Doctor, for the record, please state your name and current address.” Is this a bad dream? Only if you are unprepared for what comes next. Black’s Law Dictionary defines deposition as “a witness’s out of court testimony that is reduced to writing for later use in court or for discovery purposes.” Another, more practical, def- inition might be, “the modern day equivalent of the Spanish Inquisition where the opposing attorney attempts to get you to say something you will forever regret saying.” The deposition can determine the course of the entire trial and mistakes made during the deposition are often very diffi- cult—and sometime impossible—to mitigate. A provider’s tes- timony during the deposition will serve as the foundation for experts’ opinions and defense theories. Given the importance of this phase of the litigation, it behooves the provider to be thoroughly prepared. Preparing for the Deposition Thoroughly Review the Record Before taking your deposition, the opposing attorneys have already spent considerable time learning every detail of the record. They typically will have already thoroughly gone over the entire record with one or more experts who have advised them on what to ask you and where the care may have fallen below the standard. John Shufeldt is the founder of the Shufeldt Law Firm, as well as the chief executive officer of NextCare, Inc., and sits on the editorial board of JUCM. He may be contacted at JJS@shufeldtlaw.com. 34 To be clear: The opposing attorney will be exceptionally well versed on the patient record and will ask questions, not only on your portion of the record, but often times on the entire record. “Thoroughly review the record from beginning to end.” Take, for example, the case of a 38-year-old female who pres- ents with a cough and cold symptoms. Her x-ray is normal and her oxygen saturation is 95%. You prescribe a Z-PAK and an over-the-counter cough preparation. Being a very thorough provider, you have documented that you have considered the diagnosis of a pulmonary embolism but have, in your mind, ruled it out given her history, physical exam, and diagnostic findings. You admit, however, that if the patient was on oral birth control medication, smoked, or had a history of hypercoagulability, had hemoptysis, or had just had a prolonged period of being sedentary that you would have pur- sued the PE diagnosis more aggressively. You further agree that if she in fact had those factors in her history, it would be below the standard of care to not have pursued the diagnosis. The plaintiff’s attorney refers you to a page in the hospital record containing the intensivist’s admitting note and asks you to read the following: “38 y/o intubated female on dopamine is received from the ED. Reportedly, this unfortunate young lady, who just returned from Europe, and who has a remote history of DVT, had quit smoking a week prior the event and was just taken off oral birth control pills, was being treated for URI symptoms with a Z-PAK.” His “question” at trial is, “Doctor, you agree of course, after the answer you gave in your deposition, that if you had taken the time to get a better history your care would not have fall- en below the standard.” The take-home point is to thoroughly review the record from beginning to end. That way, you won’t get tripped up by what other providers have documented, nor will you inad- JUCM T h e J o u r n a l o f U r g e n t C a r e M e d i c i n e | M a r c h 2 0 0 7 w w w. j u c m . c o m